By Chinelo Obogo, Lagos and Emmanuel Adeyemi, Lokoja
Yesterday, the Supreme Court affirmed Governor Yahaya Bello’s November 21, 2015 gubernatorial election in Kogi State. The judgment has put to rest the conundrum and controversies that had trailed the election. Besides resolving the peculiar legal tussle that the election generated, the Supreme Court ruling has filled the gap which many legal experts say the constitution did not hitherto make provisions for.
The sudden death of the governorship candidate of the All Progressives Congress (APC), Prince Abubakar Audu, while the election was still ongoing, generated so much fuss within the party and the state. The tension heightened when there was need to replace the party’s candidate after Audu suddenly slumped and died.
The major contenders to the governorship seat came from different ethnic backgrounds. While Audu came from the Igala speaking group in the Eastern flank of the state, Bello, the runner up in the party primary election is an Ebira man from the Central district, and James Faleke, who was the running mate to Audu is an Okun- Yoruba from the West.
Since the creation of the state over 25 years ago, the Igala had always produced the governor of the state, while the Ebiras and the Okuns felt shortchanged. So, when Audu suddenly died before the announcement of the result, both the Ebira and the Okun-Yoruba felt that they should produce Audu’s replacement. The issue of who would replace Audu split the party. On one hand, Faleke, an ally of the national leader of APC, Bola Tinubu, laid claim to the candidacy, while some party stalwarts preferred Bello, who is also said to be President Muhammadu Buhari’s preferred candidate and a former classmate of Aisha Buhari, the President’s wife. Bello was the first runner-up during the party’s primary. Fearing a complete loss, the Igala threw up Audu’s son, Mohammed to be Faleke’s running mate.
After Audu’s demise, Faleke insisted that since he and Audu shared a joint ticket, he ought to step in as the late candidate’s replacement and complete the elections. But the party thought otherwise, and Bello was chosen as the party’s candidate.
After the supplementary election which APC won, Faleke challenged Bello’s emergence at the Election Petition Tribunal. On June 6, 2016, the tribunal sitting in Abuja dismissed Faleke’s petition, saying he was unable to prove his case. The tribunal ruled that all votes cast in an election belong to political parties, since it is the parties through its candidate that run for elections. It also stated that since the Independent National Electoral Commission (INEC) had declared the election held on November 21, 2015 inconclusive, the implication was that no governor or deputy governor-elect had emerged.
Following the ruling at the tribunal, five of the candidates and their political parties who contested in the governorship elections, appealed the decision of the tribunals. They are Faleke, former Governor Idris Wada of the Peoples Democratic Party (PDP), Philip Salawu of the All Progressives Grand Alliance (APGA) and Emmanuel Ozigi of the Progressives Peoples Alliance (PPA). They contended that Bello’s election did not follow due process, but on August 4, 2015, the Court of Appeal upheld Bello’s election. While giving the ruling, Justice Hannatu Shanki dismissed Faleke’s appeal for lack of merit.
She said: “The appellant was not right to raise the issue of qualification; it is a decision for the nominating party. No one can contest election without being sponsored by a party, therefore, relief sought by the appellant to nullify the election is dismissed.”
The case filed by Wada was also dismissed on the grounds that the evidence provided before the tribunal in the first place by the appellants were based on hearsay. Justice Owoade Mojeed who gave the ruling said: “A political party has no right to interfere in the activities of another party since he is not a member of that party. The appellant is supposed to have related each document to specific points of his pleading, so we agree with the tribunal that the appeal lacked merit. The appeals filed by LP, ADC and APGA were also dismissed for lacking merit.
At the Supreme Court yesterday, Bello’s counsel, Joseph Daudu argued that APC had the right to substitute its candidate, and that the candidate it so chooses, also has the right to inherit the votes cast for the late Audu. To ascertain his claim, Daudu cited Section 221 of the constitution which states that it is political parties and not individuals that contest elections. He then stated that the election of November 21 was declared inconclusive, but was concluded on December 5, therefore, it was the same election.
The counsel to INEC, Alex Izinyon, argued in favour of Faleke by saying that votes cast cannot be inherited. He said that based on the peculiarity of the case, the court should take cognisance of Section 141 and Section 138 of the Electoral Act to determine if Faleke had taken full part in the election. He says the section deals in full participation of the candidate, and therefore asked the court to sack Bello. Akin Olujinmi who represented APC argued that Section 33 of the Electoral Act allows a party to substitute a dead candidate.
Like Amaechi, like Bello
While the controversy raged on as to whether a candidate who did not take part in an election could inherit another candidate’s votes, some legal experts cited the case of former governor of Rivers State, Chibuike Amaechi.
In the case of Chibuike Amaechi vs INEC and Celestine Omehia, the Supreme Court on January 18, 2008, ruled that votes belong to political parties, and since then, no contrary decision has been made to set aside that decision.
Omehia was removed as governor of Rivers State in October 2007 after holding office for five months. Amaechi, as a member of PDP, in his quest to be the governorship candidate of the party, in the April 2007 elections in Rivers State, contested the party primaries against seven other members of the PDP. They competed for a total of 6,575 votes. Amaechi had 6,527 votes to emerge the winner. Omehia was not one of the candidates at the PDP primaries. The PDP submitted Amaechi’s name to INEC as its candidate. No court of law subsequently made an order disqualifying Amaechi from contesting the elections.
But PDP later substituted Omehia’s name for Amaechi’s without giving verifiable reason for the substitution as required by the Electoral Act, 2006. Amaechi then dragged INEC and the PDP to court to seek redress. The Supreme Court ruled that the Constitution of the Federal Republic of Nigeria, 1999 vests the political parties with the exclusive function of canvassing for votes for candidates at election and of contributing to the campaign funds of candidates at election. Section 221 of the 1999 Constitution provides: “No association, other than a political party, shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election.” Based on this provision of the constitution, the Supreme Court ruled that it is the political parties that the electorate do vote for at election time.
Timeline of the Kogi election
On November 21, 2015, residents of Kogi State came out to elect a new governor, and on the 22nd, of the same month, INEC declared the election inconclusive
On November 22, 2015, the candidate of the APC and a former governor of the state, Prince Abubakar Audu died. Audu was buried in his hometown, Ogbonicha, Ofu Local Government according to Muslim rites on November 23, 2015.
Novemner 24, 2015, the Attorney General of the Federation, Abubakar Malami announced that the election must be concluded in 14 days. On November 25, 2015, it was announced by INEC that the supplementary election would hold on December 5, 2015.
November 27, 2015, Bello was chosen as the replacement for the late Audu by his party, the APC. On December 1, 2015, Wada prayed a Federal High Court to declare him the governor
December 5, 2015, INEC conducts supplementary election, and on December 6, 2015, Bello was declared the governor of the state, polling over 6,000 votes. On December 21, 2015, Faleke headed to the tribunal sitting in Abuja, asking it to declare him the governor instead of Bello. On January 27, 2015, Bello was sworn in as the governor.
On June 6, the tribunal dismissed Faleke’s petition, and on August 5, 2016, the Court of Appeal, Abuja Division upheld Bello’s election.