Encomium
ON Saturday, November 7, 2015, the Taraba Election Petition Tribunal led by Justice Musa Danladi Abubakar, nullified the election of Governor Darius Dickson Ishaku of Taraba State. The tribunal ordered the Independent National Electoral Commission (INEC) to withdraw its Certificate of Returns from Governor Darius Ishaku and to issue a fresh one to Hajia Jummai Alhassan of APC being the next candidate with the highest votes.
Since this landmark judgement there has been a lot of arguments amongst lawyers and politicians on the legality and the logic of it.
ENCOMIUM Weekly talked to some lawyers about their view on the judgement.
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‘I have issue with the judgement’ – ADINDU UGWUZOR
What is your view on the judgement of the Taraba State Election Petition Tribunal?
The issue is that the reason why tribunal nullifed the election (of Gov. Ishaku) is it within the ambit of the tribunal? Whether there was primary election or not is that the duty of the tribunal? That is a pre-election matter that can only be challenged by a member of that party and not by another party (member).
The issue is that of PDP and not APC. That is where I have issue with the judgement.
Whether he was properly elected or not (by his party) is a pre-election matter. It is not for the tribunal to determine that, where there is no challenge.
For you to determine whether somebody is properly nominated or not it must be by somebody who participated in that primary election.
Did APC candidate that is challenging the primary election of PDP in Taraba State participate in that election?
The issue of whether declaring that woman (Hajia Aishat Alhassan) a winner or not has always been controversial.
It has been challenged at the Federal High Court and that provision has been nullified and it was not appealed. That is a major issue.
But the basic thing is that the reason he gave for nullification is it within the ambit of the tribunal? That was the decision of a tribunal in Lagos where a PDP state assembly candidate was challenging the primary election of another party member. The tribunal said it has no business with the primary of APC.
There are precedents that have been given by another tribunal in Lagos. For you to challenge whether anybody was properly nominated or not you must have participated in that election. She did not participate in the primary (election) of PDP.
I have issue with that being the ground for nullification.
‘It is wrong in logic and law’ – EBUN OLU-ADEGBORUWA
What is your view on the judgement of the Taraba State Election Petition Tribunal?
My view is that the tribunal erred in law in declaring Senator Alhassan as the governor, because that is wrong in logic and in law. It is wrong in logic because as we speak now, the greatest percentage of the vote cast were in favour of the PDP. Once the tribunal did not nullify that election, it cannot transfer the votes of PDP to APC.
If the view of the tribunal is that Governor Ishaku is not the right candidate, then it should call on PDP to go and bring another candidate. There is no sense or logic if the election is still valid and then you transfer the votes of Taraba people from PDP to APC.
It is wrong in law because under Section 140 of the Electoral Act, if the reason for nullifying an election is that the candidate was not qualified to contest, then you order fresh election.
That cannot translate to the advantage of the opponent. So, the tribunal should have ordered a fresh election.
I don’t see how that judgement can stand on appeal. I advise Ishaku to appeal against it because the judgement is wrong in law.
‘A fresh election is in line – JOHN ITODO
What is your opinion on the judgment of the Taraba Election Petition Tribunal?
The judiciary needs to begin to put its acts together and be consistent in their judgments, especially on political matters. The inconsistencies demonstrated in the outcome of the petitions arising from the 2015 election are mind boggling.
In Lagos for instance, all the petitions filed by the PDP touching inter alia on the issue of valid nomination of APC’s candidates for Legislative Houses election were all thrown out, it was even held that the issue of compliance with 21 days notice in line with Section 85(1) of the Act is not a requirement for valid nomination, and that the PDP and its candidates who were petitioners have no right of complaint as they were not members of the APC or participated in APC’s primaries, amazing! Whereas in some other states like we saw in Taraba State, where APC challenged the nomination of a PDP aspirant and sitting Governor, it was okay. This kind of divergent judgment leaves a lot to be desired and erodes public confidence in the judiciary, which is not good for our democracy, especially as political actors in states where elections will hold soon are watching with keen interest and weighing their options in court. The judiciary should wake up and remain awakened to its call of duty not minding which party is in power or not, they should discharge their duties without fear or favour, and we all will be better off for it.
Finally on this point, should Aisha Alhassan have been declared the winner or a fresh election ordered?
I think if we are to follow the law strictly, then a fresh election in line with the provision of Section 140 of the Electoral Act 2010 (as amended) which provides:
(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” would have been okay, besides, PDP would have been ineligible to present a candidate going by the judgment of the court that there was no valid congress and since the time table for holding congresses for the purpose of nomination as set by INEC has elapsed, then they, PDP cannot present a candidate.
There is, however, a twist. In the unreported judgment, Honourable Justice Kolawole in Labour Party v INEC 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 null and void, and that Sections 239 and 285 prevail.
If that is so, which as it stands now is the extant position as there was no appeal against that ruling or has it been overturned by any appellate court yet, then the Tribunal is right in declaring Madam Alhassan the winner.
‘INEC’s testimonies was sustained by tribunal’ – Hon. Tunde Ogala
What is your opinion on the judgment of the Taraba Election Petition Tribunal?
“The tribunal sustained the testimonies of INEC head of election monitoring that the commission was not aware of any primaries conducted by the party in line with the provision of the Electoral Act which produced Ishaku as the party’s flagbearer.”
“Section 78 (b) (1)(2) of the Electoral Act states: In the case of nomination to the position of Governorship candidate, a political party shall where they intend to sponsor candidates:
(i) hold special congress in each of the Local Government Areas of the States with delegates voting for each of the aspirants at the congress to be held in designated centres on specified dates.
(ii) the aspirant with the highest number of vote at the end of the voting shall be declared the winner of the primaries of the party and aspirant’s name shall be forwarded to the commission as the candidate of the party, for the particular state.”
“The tribunal held that the defence by the PDP that the primaries were shifted to Abuja because of security challenges in the state was rejected by the tribunal. It sustained the evidence of the INEC official that there was no primaries election in the state and the emergence of Ishaku through the purported election in Abuja was after the statutory stipulated time for party primaries had elapsed.”
“It held that since Ishaku was not duly sponsored by the PDP, the party had no candidate in the governorship election in the eyes of the law. The tribunal therefore voided the votes of the PDP and Ishaku in the election saying, “it is a waste” and declared the APC and its candidate, which came second, as the valid winner of the April 11 election.”
Please see the following Supreme Court decisions in: Adeogun v. Fashogbon (2008) 17 NWLR (Pt. 1115); Dangana v. Usman (2012) 2 SC (Pt. III) 103 @ 145 -147 lines 34 – 25; Wambai v. Donatus (2014) 14 NWLR (Pt. 1427) 223; Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56 @ 102- 103.
At the Court of Appeal level, please see the recent decisions in:
- APC v. Agbaje & 4 Ors. (Unreported) CA/L/EPT/GOV/751A/2015 delivered on 26/08/15 where Ogbuinya JCA held that the ground of Agbaje’s petition challenging Ambode’s qualification on the ground of defective primaries as APC candidate was valid, but same was not proven by the Appellant.
- Labour Party v. Nyesom Wike & 3 Ors. – Appeal No. CA/A/EPT/492/15 delivered on 21/9/15.
See also the Locus Classicus on the point:
Hon. Aidoko Ali Usman Atai v. Dangana & Ors. CA/A/EPT/640/2011 delivered on the 13th of December, 2011.
At the tribunal level, see the judgment of the Benue State Governorship Election Petition Tribunal delivered on 21/9/15 in Tarzoor v. Ortom. Petition No. EPT/BEN/GOV/01/15.
The tribunal actually held that the petitioner could validly challenge the election of Governor Ortom on the ground that APC did not conduct a valid primary election to nominate him. Petition was only dismissed because the tribunal found that the petitioner didn’t discharge the burden of proving that no valid primary election was conducted. That’s my position.
- TOLANI ABATTI
