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EXCLUSIVE| Making Sense of the Judgment of the Taraba State Governorship Election Tribunal – By Abdul Mahmud

by on November 8, 2015
 

The judgment of the

delivered yesterday is raising dust in Nigeria’s political circle and as expected many commentators, particularly those with partisan interests and many others, still, who have their party political and ethnic monocle on and who view law and justice from the binary of the Peoples Democratic Party (PDP) and All Progressives Congress (APC), have joined what is gradually turning into a public feast. No judgment in our contemporary legal history has engaged the Nigerian public as the judgment of the Taraba State Governorship Election Tribunal. This is perhaps so for reason that the victorious petitioner is a woman- a representative of that much maligned, oppressed and repressed gender class that has for years knocked on the seemingly proverbial doors of power like the scorned biblical bridesmaids, with the doors firmly shut against it and some of the best representatives, like Sarah Jubril, Professor Sonaiya and others, whose sweats and blood etch the Nigerian political glass ceiling. Perhaps, too, it is for this reason that the judgment has become “the talk of the town”, as they say in these parts.

Lawyers have also joined the fray to articulate the most objective legal opinions and the most absurd analysis of the judgment, depending on their partisan or ideological leanings. Unfortunately, in all of this, many commentators abandon the very substance of the law that perhaps informed the judgment of the tribunal for political inanities, the absurd and the ludicrous- subjects that have no connection to the jurisprudence of law and justice and to the powers of adjudication of the tribunal. This approach does not, and has not always, help us to understand the complex nature of law and justice and their complex relationship.Thus, my purpose, here, is, first, to make sense of the judgment and to explain some of the intricate aspects of the judgment, already in the public space, that agitate those who have no training in the science of law and case law. There is a higher purpose that seeks an understanding of what the judgment portends for our seemingly nascent democracy!

I make one confession here: I have not read the full judgment of the tribunal, so making sense of it will be limited to those aspects that were published by the press. This is what was published: “The Taraba State Governorship Tribunal sitting in Abuja today declared Hajia Aisha Alhassan of the All Progressives Congress winner of the April 11th, 2015 Governorship election held in Taraba state. The tribunal held that Governor Darius Ishaku was not validly nominated as candidate of the Peoples Democratic Party (PDP) and was therefore not qualified, ab initio, to contest the Governorship election. The petitioners, Hajia Aisha Alhassan and the All Progressives Congress (APC) alleged that the 11th December, 2014 Governorship primary held at the PDP secretariat in Abuja was conducted in violation of Section 87(1) and (2) of the Electoral Act, 2010(as amended)”. It was further reported by the press that the tribunal upheld the arguments of the petitioners that the PDP Abuja primary was conducted outside the stipulated time allowed and thus served a notice outside the time stipulated by Section 85(1) of the Electoral Act, 2010 (as amended).

Making Sense of the Facts and the Law

There are three issues of the validity and nomination, notice served by the PDP on INEC- all arising from the Abuja PDP primary that touch on the qualification of Governor Ishaku- and the declaration of Hajia Aisha Alhassan, with the second highest votes, as the elected Governor of Taraba state- that can be discerned from the foregoing. It is these issues that have converged to engage the Nigerian public. For us to understand the issues, it is important we distill what transpired at the Abuja PDP primary in December, 2014 to understand the reasoning of the tribunal. These are the facts that can be gleaned from what the newspapers published on 12th and 13th December, 2014: “On 11th December, 2014, the Governorship primary for Taraba state was moved to Abuja from Jalingo. The primary, originally fixed for the previous week was suspended because representatives of the National Working Committee didn’t turn up to conduct the primary after congresses had been held in all local government areas. There has been controversy over the zoning arrangement allegedly agreed by elders of the party that the governorship be zoned to Taraba south which party stalwarts, including the former acting Governor, Alhaji Umar, contend does not exist. In the midst of the raging controversy, the NWC directed that the primary be conducted in Abuja. Governor Ishaku, a former minister who resigned to contest for governorship, was thus picked as the PDP flag bearer to the surprise of Alhaji Umar and 750 delegates of the party who were locked out of the venue of the primary at Wadata House, Abuja. Commenting on the development, Alhaji Umar described the primary as ” kangaroo primaries” conducted by a “cult of personalities”.

Gleaning the facts as stated in the foregoing, the question that invariably follows, which I presume the tribunal addressed itself to, is: was Governor Ishaku validly and legally nominated by his party? The answer to this question can be found in Section 87(1), (2), (3) and (4), (b) (i) and (ii) of the Electoral Act, 2010 (as amended). This section is set out as follows:
Section 87
(1) A political party seeking to nominate candidates for elections under this
Act shall hold primaries for the aspirants to all elective positions;
(2) The procedure for the nomination of candidates by political parties for the
various elective positions shall be by direct or indirect primaries;
(3) A political party that adopts direct primaries procedures shall ensure that all aspirants are given equal opportunity of being voted for by members of the party;
(4) (b) In the case of the nomination to the position of Governorship candidates, a political party, where they intend to sponsor candidates
(i) hold special congress in each of the local government area of the state with delegates voting for each of the aspirant at the congress to be held in designated centers on specified dates;
(ii) the aspirants with the highest number of votes at the end of the voting shall be declared the winner of the primaries of the party and the aspirant’s name shall
be forwarded to INEC as the candidate of the party, for the particular state.

Query one:
Was the Abuja PDP primary conducted in line with Section 87(1) of the Electoral Act, 2010 (as amended)? In my humble opinion, I don’t think so. That no special congresses were held in the local government areas of Taraba state is sufficient enough ground for the tribunal to hold that the Abuja PDP primary was conducted in violation of Section 87(4), (b) (i) of the Electoral Act, 2010 (as amended).

Query two:
Did the PDP serve the statutory notice on INEC within 21 days stipulated by Section 85(1) if the Electoral Act, 2010 (as amended), which provides as follows:
Every registered political party shall give the Commission at least 21
days notice of any convention, congress, conference or meeting
convened for the purpose of electing members of its executive committee
…or nominating candidates for any of the elective offices specified
under this Act.

My sense, perhaps based on the evidence of fact, adduced at the tribunal, is that the tribunal is right to hold that the PDP didn’t comply with Section 85(1) of the Electoral Act, 2010 (as amended). The reports published by newspapers in December, 2014 indicate that the Abuja primary was conducted 5 days outside the legally required period. It is now a matter of public record that INEC witness adduced positive testimony at the hearing of the election petition that the statutory notice wasn’t served on the Commission.

On The Qualification of Governor Ishaku

The issue of qualification was recently addressed by Inibehe Effiong, an Abuja-based lawyer in his brilliant essay, ‘A legal examination of the judgment of the Taraba State Governorship Tribunal’. Inibehe Effiong’s argument that “the process of nomination of candidates touches on the qualification of the candidate and qualification is one of the four grounds cognizable by Section 138 of the Electoral Act upon which an election may be questioned at the tribunal. See Gwede v INEC (2015) 242 LRCN 138, Akpamgbo-Okadigbo v Chidi (No 2) (2015) 10 NWLR (part 1466) at 124” captures the essence of the law and the current jurisprudence of our case law on qualification generally.

But, what does Section 138 of the Electoral Act, 2010 provide? For clarity, I set out the relevant provisions of Section 138 as they relate to the judgment of the tribunal as follows:
Section 138
(1) An election may be questioned on any of the following grounds,
that is to say:
(a) that a person whose election is questioned was, at the time of
the election, not qualified to contest;
(b) that the election was invalid by reason of corrupt practices
or non-compliance with the provisions of this Act;
(c) that the respondent was not duly elected by the majority of lawful
votes cast at the election; or
(d) that the petitioner or its candidate was validly nominated but was
unlawfully excluded from the election.

It is for good reason that Section 87(9) of the Electoral Act, 2010 (as amended) highlights the challenge that non-qualification poses that it provides that “where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate shall not be included in the election for the particular position in issue”. Did the apparatchiks of the PDP recognize this particular section? The lack of understanding of the import of the section and not doing what was right in the eyes of the law in December, 2014, in my humble opinion, is what cost the PDP. Critics, including the respected Mike Ozekhome SAN, argue that qualification is a pre-election matter that the tribunal shouldn’t have entertained or adumbrated upon. I find this argument curious and out of sync with the current decisions of our appellate courts. These critics are simply wrong! Qualification or non-qualification as a pre-election or post-election matter is what I now turn to in the following paragraph.

Is Qualification or Non-Qualification of a Candidate to Contest an Election A Pre-Election or Post-Election Matter?

The short answer is: qualification or non-qualification is both pre-election and post-election matter that can be brought before a tribunal or the regular court. The choice of venue, whether the tribunal or high court, is one that every petitioner makes. As the Court of Appeal held in General Charles Airhiavbere v Adams Aliyu Oshiomhole and Ors (2013) LPELR 9824, “it had been settled that complaints rooted in violations of the Electoral Act, particularly relating to the qualification of a candidate…can be challenged at the Election Tribunal”. In the court’s answer to the question I pose in the foregoing, this is what the Court of Appeal says:
“the non-qualification of a candidate to contest an election conducted under Section 138(1) of the Electoral Act, 2910(as amended) for presenting election petition to the lower tribunal. In other words, it is certainly not correct, as erroneously held by the lower tribunal at pages 881-882 of the record…Surely, it is a complaint clearly cognizable in the lower tribunal. In any event, this issue has been laid to rest in the recent unreported decision of the full compliment of the Supreme Court in the consolidated case of PDP v Saror and Ors SC 381/2011; Suswan v Saror and Ors SC 381/2011 where the Lordships held as follows: “it is not correct that the matter of qualification of a candidate is a pre-election issue and for the regular court alone. Therefore, the Governorship Election Tribunal had jurisdiction to entertain a petition…the tribunal can inquire into and determine all complaints of disqualification. See also ACN v Lamido (2012) 8 NWLR (part 1303) pages 560 at 583”.

In fact, in Dangana v A.A.A Usman (2012) LRCN page 92 at 130-131, Onnoghen JSC held that “Section 138 of the Electoral Act, 2010 (as amended) provides, inter alia, that an election may be questioned on the ground that a “a person whose election is questioned was at the time of the election not qualified to contest the election”. One point to note, here, is the claim by critics, who rely on the ratio of Fabiyi JSC that ” it is the exclusive power of political parties to conduct primary elections. A court shall not dabble into political question which remains the exclusive preserve of political parties that should be allowed to do their thing” to carpet the judgment of the tribunal. This criticism is misplaced and does not distinguish the inquiry of the tribunal into the legality of the primary conducted by the PDP from an inquiry into the powers of PDP to conduct its primary.

Did The Tribunal Declare Aisha Alhassan in Error of the Law or Per Incuriam?

The powers of the tribunal or regular courts to nullify an election are preserved by Section 140 of the Electoral Act, 2010 (as amended) . This Section is set out as follows:

Section 140:
(1) Subject to subsection (2) of this section, if the tribunal or the court as the case may be, determines that a candidate who was returned, as elected was not validly elected on any ground, the tribunal or the court shall nullify the election;
(2) where an Election Tribunal or court nullifies an election on the ground that the person who obtained the highest votes at the election was not qualified to contest the election, the Election Tribunal or court shall not declare the person with the second highest votes as elected, but shall order a fresh election.

Many critics of the judgment argue that the tribunal erred in law by exercising powers not granted to it by Section 140 and declaring Aisha Alhassan as the elected Governor of Taraba state. These critics forget that Sections 140 (2) and 141 of the Electoral Act, 2010 (as amended) were struck down in 2012 by the Federal High Court sitting in Abuja. In the unreported judgment delivered by Justice Kolawole in Labour Party v INEC and the Attorney General of the Federation, the court held that Sections 140(2) and 141 of the said Electoral Act are inconsistent with Sections 239 and 285 of the Constitution, 1999 (as amended) and that by virtue of Section 1(3) of the Constitution, those sections of the Electoral Act are to the extent of their inconsistencies VOID, and that Sections 239 and 285 prevail. Here is another intriguing aspect of the suit filed by the Labour Party: the first and second defendants conceded during the hearing of the suit that those sections of the Electoral Act were inconsistent with the 1999 Constitution.

It thus appears to me, in the light of the foregoing, that the tribunal, aware of the un-appealed decision of the Federal High Court, rightly exercised its powers as preserved by Section 285(2) of the Constitution, 1999 (as amended). For the record, Section 285(2) provides that “There shall be established in each state of the Federation one or more election tribunal to be known as the Governorship and Legislative Houses Election Tribunals, which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any legislative House”.

Justice Served

The judgment of the Taraba State Governorship Election Tribunal is a watershed, which expounds our constitutional law jurisprudence and the frontier of Election Petition Laws. For me, the judgment explicated the subject of validity and legality of some of the electoral choices political parties make and sought to center those choices within the framework of the Electoral Act. The judgment is a giant first step towards the explication of Section 87 of the Electoral Act, which unfortunately the Supreme Court wasn’t able to make pronouncements on, in Adebisi Adegbuyi v All Progressives Congress and Ors (2014) LPELR 24214 because of the narrow pleadings of the Appellant, when the matter came before it for determination. The expectation is that the Supreme Court will take this opportunity to settle the issue and the other conflicting judgments that have emerged from the various Governorship Election Tribunals, notably the Benue State Governorship Election Tribunal that wrongly dismissed the ground of the petition of the PDP that claimed that there was no primary from which Gov Ortom emerged. It is an indisputable fact that Governor Ortom emerged after the APC had conducted its primary and picked a different flag bearer. These conflicting interpretations of Sections 87 and 138 of the Electoral Act, 2010 (as amended) are not good for our legal jurisprudence. They undermine every petitioner confidence in our tribunals.

One lesson to take away, here, though a painful one to our politicians, is that it orders political parties to stay true to the law and to the principle of representation which makes democracy truly representative of the wishes of the electorates. Here, justice is served when every politician plays to the rules.

*Abdul Mahmud, a Constitutional lawyer, is the President, Public Interest Lawyers League (PILL)

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