Barring any untoward development, Edo State governorship election will hold as scheduled on September 19, despite the apprehensions about the threat of violence and the speculation of possible postponement.
The Independent National Electoral Commission (INEC) had to recently reaffirm its position on the September 19 timeline earlier released for the conduct of the election to douse the anxiety generated by the comment made by Governor Godwin Obaseki, alleging plot by the ruling All progressive Congress (APC) to coerce the umpire to defer the polls.
The National Commissioner for Information and Chairman of Voters Education, Festus Okoye, speaking on Channels Television, said that there would be constitutional crisis if the election is not conducted as Section 178 (2) already states the timeline for the conduct of the election. He assured that political parties had complied with INEC’s notice over threats of violence, adding that 14 items in the preparation for the poll out of nine had been met by the participating political parties.
His words: “INEC is progressively moving ahead with the September 19 Edo State governorship election. There are 14 items for the election and nine of them have been implemented and non-sensitive materials have been deployed. We are proceeding with the election as planned.
“The political parties on their own are complying with the commission’s warning on violence and we have also observed a change from the threats of violence. So, we are moving ahead with the election.”
Despite the assurance, confusion still reigns over the likely legal implication of exclusion of the deregistered political parties from the ballot papers. This is bearing in mind the subsisting judgment of the Court of Appeal over the power of INEC to deregister political parties. Though the commission has already indicated its intention to appeal the judgment at the Supreme Court, there are varied opinions on the possibility of another round of constitutional crisis in the post election period.
One of the spokespersons of the Conference of United Political Parties (CUPP), Mr Charles Adebayo, in a quick reaction blamed the INEC for creating unnecessary confusion, threatening that the matter would be contested in court after the election.
Speaking with Sunday Sun in a telephone interview he said: “We are holding the INEC responsible for the confusion. I am sure political parties will contest these matters in court, especially those political parties restored by the Appeal Court because they have been clamouring for participation in the election.
“Kowa Party, for instance, which was deregistered by INEC, won a councillorship election in Amosi ward in Okigwe Local Government Area of Imo State. If the party now gets a court judgment reinstating it, it will still miss two elections. Even the 22 parties that have been reinstated can no longer participate in Edo and Ondo elections.
“So, it is a very difficult dilemma for everybody. We hold INEC responsible for all these crises. It is a crisis activated by the INEC itself because it did not do its due diligence in deregistering those political parties. They had sued INEC to court since last year not to deregister them, but still they went ahead to deregister them. That was a contempt and it is one of the reasons the Appeal Court reversed the de-registration of those parties. By the time the parties were reinstated by the Court of Appeal, the time table for the election had almost run its course and the primaries had passed.
“Unfortunately, the INEC does not have the powers to reverse the timetable. But definitely, it will have legal implications. If the parties decide to go to court, it will be another round of tortuous legal journey. INEC should have been more circumspect or follow due process in deregistering political parties. INEC has not been diligent enough in exercising its powers. So, our conclusion is that these crises were created by the INEC.”
A former President of the Nigerian Bar Association (NBA), Ikeja Branch, Ebun Adegoruwa (SAN), lent credence to Adebayo’s sentiment about the dilemma INEC had created, warning that non-inclusion of the deregistered political parties in the ballot papers would have grave legal implication on the validity of Edo and Ondo elections.
He submitted: “In the coming elections in Edo and Ondo states, if the ballot papers have not been printed, the names of all political parties that have been asked to be deregistered by the court should be included so that INEC doesn’t waste money in conducting elections that will be nullified. The budget of INEC runs into N132 billion. We cannot be wasting public resources at this period of COVID-19 to conduct an election they know will not stand the test of time.
“For me, INEC is the one playing itself into problem. Now, we are in a quandary. If INEC decides to obey the decision of the Court of Appeal and put the names of all political parties that were otherwise deregistered on the ballot papers, and eventually the Supreme Court affirms the judgment of the High Court, which confirms the power of INEC to deregister them, it will mean that those parties become deregistered. But if their names were added on the ballot, they would have taken one or two votes from other candidates that should have been there, If they had not been on the ballot papers, and that would be a grand to nullify the election, if eventually the court rules that they ought not to be on the ballot. At the same time, if INEC decides not to include their names, because it has filed an appeal against the judgment of Court of Appeal and the Supreme Court affirms the decision of the Court of Appeal; it will also be a grand for nullifying the elections. So, we are really in a serious constitutional problem as far as Edo and Ondo states elections are concerned.
“If I were in the position of INEC, I will err on the side of surplus. It will be a calamity for them to exclude the candidates of those parties and the Supreme Court eventually affirms the decision of the Court of Appeal.”
Asked to clarify further his position as to whether or not the decision of the Supreme Court could have retroactive effect on the outcome of the elections, he responded: “That will be an express nullification. If the Supreme Court confirms the judgment of Court of Appeal, it will go back to the day the suit was filed in the High Court. The case did not originate from the Court of Appeal or the Supreme Court. Both are appellate courts which determine the judgment of the High Court. If you want to enforce the judgment, you take it back to the day the suit was filed at the High Court. INEC had been given notice that they were contesting the de-registration. So, if it goes ahead to do anything while that suit is pending, it does so at its own risk. You cannot say they will not enforce the judgment of the Supreme Court because it came after the election since the suit had been filed before the election. It is between the devil and the deep blue sea.”
However, a renowned legal luminary, Yusuf Ali (SAN), in difference to this submission, stated unequivocally that all the affected political parties remained deregistered for so long as they failed to meet the timeline stipulated for the conduct of their primaries as contained in the Electoral Act.
He argued: “There are requirements under the law for a party to take part in an election and the Electoral Act has set a time limit for the conduct of an election. They must conduct primaries; results of the primaries must be witnessed by the INEC. Did these political parties have their primaries? Once you don’t conduct a primary, you are not entitled to take part in an election. That is what the Electoral Act says.
“So, the way it is today, I do not think that any party that has not conducted its primaries duly witnessed or authenticated by the INEC can take part in the election. For those that had their primaries, at the point they were deregistered, until the court says otherwise, they do not exist as a party. The constitution is very clear; only political parties can sponsor candidates. At the point INEC deregistered those political parties, until there is a contrary pronouncement by the court, they remain deregistered.”
In the same vein, Dr Tunji Abayomi, a constitutional lawyer, also weighed in on the argument, saying that “INEC needs not to include them in the ballot papers.”
Explaining his position, he said: “My understanding is that INEC has appealed to the Supreme Court and I suppose it will be against the decision of the Court of Appeal. Until there is a decision by the highest court in the land, you really cannot affirm any position as unchangeable under law. My thinking is that INEC will not include other political parties in the ballot papers except those political parties that were certified prior to the decision of the Court of Appeal. The final decision of the Supreme Court will only affirm the position of the existence of those parties from that day of the decision. If the Supreme Court affirms the decision of the Appeal Court, it will only mean that for future elections those political parties have to be included in the ballot papers.
He, however, stressed the provision of the constitution which states that exclusion of a political party will nullify an election.
“And I think it is a common knowledge that you cannot disenfranchise those who intend to vote for the party that was excluded. It has been stated time and again that when you exclude a political party, it is automatic annulment of that election. When you exclude a political party, you are indirectly excluding its supporters and you are denying such candidate the right to contest. In a democracy, the issue is not that people must vote, but they must be given the opportunity to vote. They can then decide to vote or not to vote. That opportunity to vote is sacred and it must be granted. That has been the line of division all over the world,” Abayomi added.
Senator Anthony Adeniyi, a lawyer and member of the APC, also joining his voice to the debate, and said: “Not until the appeal is upturned by the Supreme Court, the affected political parties stand deregistered. Besides, the Supreme Court is already on vacation and there is nothing very urgent about the appeal. Anyhow it goes, it cannot affect the validity of the election because the position now is that they have been deregistered. The only thing the Appeal Court said is that the procedure through which the parties were deregistered was faulty.”