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Dealing With The Spate Of Inconclusive Elections

Iyke Ozemena
When the Chief Justice of Nigeria, Justice Mahmud Mohammed on taking up the mantle of leadership vowed to sanitize the judiciary and the entire justice system he was only saying the obvious. Indeed the past Chief Justices strove to pass on the baton of sanitization; perhaps what is crucial in the present occupier of the office is the fact that the occupier of the executive arm is also a change agent whose mantra for sanitization has gone viral.
Recently the Chief Justice was quoted as saying: “our justice system has become notorious for delays, occasioned by a combination of endless adjournments, incessant interlocutory applications and overwhelming caseloads, a situation that breeds a huge disincentive for businesses”. I believe that the next opportunity he has to address more issues besetting the judiciary he would include conflicting judgments at the ongoing electoral cases. The present situation is a serious indictment on the nation’s justice sector.
The Electoral act set up the Election appeal Tribunal to declare the processes, results and the parties being the embodiment of candidates indeed complied with rules and regulations thereby confirming the outcome. And this includes Independent National Electoral Commission (INEC), the arbiter’s decision of the inconclusiveness of elections based on the 1999 Constitution and the Electoral Act 2010 as amended. Is it possible that these laws or their interpretations have led to the recent spate of inconclusiveness of elections?
Prof Attahiru Jega led INEC had fewer supplementary inconclusive elections. Since the new helmsman took office none of the elections conducted sailed through without these hitches – Kogi, Bayelsa. But awaiting results problems from Jega’s era that would have been rectified by the tribunal escalated, including Taraba, Rivers, Delta, Abia etc.
Taraba gubernatorial race was largely based on People’s Democratic Party (PDP) VS All Progressives Congress (APC). The incumbent Governor, Darius Ishaku ran on the platform of PDP while his challenger former Senator Aisha Jummai Alhassan was APC’s flag-bearer. At the collation of results Ishaku scored the highest number of votes but the election was later nullified by INEC. A fresh election saw Aisha Alhassan who had 2nd highest vote being declared winner which ran counter to the dictates of S. 140(2) of Electoral act 2010 which provides that:
“(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 2nd highest votes as elected, but shall order a fresh election”.

In applying this provision the tribunal noted the facts of the Taraba contest turned on qualification or none of it and therefore ruled that “when the issue of non-qualification is predicated on non-sponsorship or non-nomination of a candidate, the proper order to make is declare as elected, the candidate with the 2nd highest votes because the returned winner cannot be said to have participated in the election and all votes cast on the said election are regarded as wasted votes”.
This conclusion is conspicuously at variance with the 3rd Respondent/ INEC’s reply filed at the tribunal to the effect that PDP sponsored Gov. Darius and that his nomination and election is valid in law.
Note that no PDP members challenge the nomination, qualification or sponsorship of Darius. The first election held on 11 April produced a score-board that showed Ishaku’s voted as 317,198 while Alhassan’s votes as 262,386. The difference between the 2 candidates was 54,812.
The number of votes cancelled at some polling units totaled 100,000. On 13th April the Returning Officer Prof. Muhammed Kariey declared the result inconclusive relying on paragraph 44 (m) of the 2015 INEC Election Guidelines (admittedly inferior to the constitution) to the effect that “where the margin of win between the 2 leading candidates is not in excess of the total number of registered voters of the polling unit(s) where election was cancelled or not held, decline to make a return until another poll has taken place in the affected polling unit (s) and the results incorporated into a new form EC 8D and subsequently recorded into form EC 8E for Declaration and Return”.
A supplementary election was scheduled to hold within 30 days. On 25th April when the election was held Darius Ishaku polled a total vote of 369,318 to defeat his closest rival Alhassan who polled 275,084 votes.
The opposition had to petition the tribunal that the elected Governor was not properly nominated/qualified/participated and his closest contender wanted her declared winner of the election. The Tribunal accepted the argument and declared her winner on 7th November 2015.
However, the unrattled governor went to the Court of Appeal to overturn the ruling!
In the case of Senator Uche Ekwunife PDP, representing Anambra Central Senatorial Zone, whose challenger was Chief Victor Umeh of APGA the Court of Appeal headed by Justice A.H. Yahaya overturned the decision of the tribunal which had earlier on upheld Ekwunife’s election describing the decision as perverse. The Court went on to order a fresh election by INEC within 90 days. Sometimes it becomes difficult to decipher the rationale for the tribunal’s or Court’s decision for fresh election which is the equivalent of re-run or supplementary election where a fraction of the constituency is affected. When INEC decided that the elections conducted in 3 LGAs in Abia did not comply with Electoral Act and held the results several days before announcing its inconclusiveness, were they right in the parameters (Constitution or Electoral Acts) that led them to that conclusion? After a re-run which produced results that led to the declaration of Dr. Ikpeazu winner and thereafter confirmed by the tribunal, was it not what the Court of Appeal wanted by querying the INEC’s cancellation in the first place?
Instead Court of Appeal accepted the cancellation based on the provision of s.68 of Electoral Act and remarked that only the tribunal could set it aside but the tribunal did not. On this point the Court of Appeal held that the tribunal erred in law by upholding the election of the 3 LGAs. It is also interesting that the Court of Appeal clearly identified that the Returning Officer had no powers to cancel the elections at thatstage. The question becomes what the proper order/decision to make?
Rather than order for fresh election or logically conclude that the cancellation at that stage by the Returning Officer was wrong and restore the votes cast, it endorsed the cancellation of 3 LGAs to the dismay of a sitting governor and about 300,000 eligible voters.
These created uncertainties about the law and rumours were rife as to the proper interpretation of the law. In the case of Abia protesters seem to be completely unguided. The Attorney-General & Commissioner for Justice, Ume Kalu had through print and electronic media made the point quite clear that the date of delivery of that judgment was not fatal to Dr. Ikpeazu’s case since S. 143(2) of the Electoral Act 2010 has covered him front and back until the entire process of appeal to the Supreme Court has been exhausted. So the Status quo has to be maintained until such determination.
As at 31st December, 2015 preceding a holiday/weekend coupled with non-availability of record of judgment for notice of appeal, the sitting governor (the res) subject matter cannot be destroyed or removed until final appeal.
Since this Court of Appeal judgment have come to realize why the late Chief Justice, Mohammed Bello of blessed memories said “we pass judgments which we know do not comply with our conscience……Any law which a judge thinks is bad he applies it, but he criticizes it in his judgment”. There is no doubt that the Supreme Court justices have hard nut to crack!
In these times of legal crisis it is interesting to note the reactions of the Attorney-General & Minister of Justice or Commissioner for Justice as the case may be. In recent times Rivers state former Commissioner Bom Wogu insisted that the National Judicial Council had no business under s.271 of the 1999 Constituting in deciding who becomes the state Chief Judge while opponents disagreed.
In the wake of Prince Abubakar Audu’s sudden demise before the conclusion of an election he had almost won, it prompted an unprecedented moment in the constitutional and democratic history of Nigeria, leading to the criticisms that there was constitutional lacunae. When Abubakar Malami reacted not many thought his opinion was rational in law; they wanted Supreme Court decision. However, during party primaries that produced Audu who scored the highest votes to emerge winner, his closest rival was Alhaji Yahaya Bello.

Whenever a party is faced with the challenge of nominating its candidate/flag-bearer the has always insisted that since political parties are in the business of political entrepreneurship it is the prerogative of the party therefore to ascertain and confirm who that member should be. The case of Emeka v. Okadigbo which is a Supreme Court decision established that it is the party that determines its candidate, that was why I argued in another forum that there was no constitutional lacunae in the Kogi state election debacle. A fortiori the legal position of Abia governorship tussle has been clearly stated by the comments of the Attorney-General & Commissioner for Justice.
Iyke Ozemena_Attorney_
IKECHUKWU O. ODOEMELAM & CO_Corporate Attorneys/Consultants_

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