In today’s episode of Total Politics, we shall continue with our dispassionate analysis of Section 285 (13) of the 1999 Constitution which is haunting the Peoples Democratic Party (PDP ) and her candidate in Anambra Central. I once again apologize to any one discomforted by the truth that shall be revealed here, as certain facts cannot be wished away.
Moving forward, it is not yet uhuru for the PDP candidate, as her ‘celebration’ may be cut short if the Appeal Court unlike the trial tribunal becomes bold in determining the true wordings and intendment of Section 285(13) of the 1999 Constitution which was brushed aside by the trial tribunal in a judgment that insults not just common sense but flagrantly violates the constitution, the rule of law and every past precedent. To argue to the contrary will be unnerving to the core.
One will expect the Appeal Court to be more dispassionate and be guided by the clear provisions of the law, so as to save the judiciary from further ridicule. One of the biggest threats to democratic stability in Nigeria is the tendency of some desperate politicians not to play by the rules and yet expect the courts to aid them in perfecting their illegality. They forget that laws are made to be obeyed, and that the law like in the instance case shall take its course where a party or its candidate fails, neglects or refuses to comply with the mandatory provisions of the law on the nomination and submission of the names of its candidate for an election. Such a political party shall be deemed or taken in law to have fielded no candidate in that particular election.
Section 285(13) empowers both the courts and the tribunal to determine whether a candidate complied substantially with the provisions of the electoral Act; in other words, whether such a candidate participated in all stages of the election.
The section provides thus : ‘An election tribunal or court shall not declare any person a winner at an election in which such a person has not fully participated in all stages of the election’. By the use of the word ‘court’ or ‘tribunal’, the section in my view is directed to both the court and tribunal and can be applicable as both pre –election and post election matter to the extent of substantial compliance and participation in all stages of the election.
Section 285(13) was enacted by National Assembly to curb the excesses of politicians bereft of ideological bent who switch and change political parties like babies changing diapers. This provision as contained in the 4th alteration has been recognized by both the courts and various election petition tribunals to the extent that if either the tribunal or court found out that a candidate did not participate in any stage of the election process, the tribunal will be left with no option than to declare the next candidate with the highest number of votes as winner in the election or nullify the election while ordering for a fresh poll.
In Modibo v Usman & Ors delivered on the 30th of July 2019, the Supreme Court delivered a binding judgment which enjoins that ‘a person to be declared and returned as winner of an election must have been a person who fully participated as a candidate, in all stages of the election starting from his nomination as a candidate to the actual voting’.
But in the haste to invent its own underlining issue outside the pleadings before it, the trial tribunal in Awka brushed aside this well established judicial precedent. The crux of the matter was brushed aside by the tribunal while personal opinion of the judges took over the case without convincing reasons. Documentary and oral evidences provided by the petitioner to prove his case beyond doubt in anticipation of sincere judgment and concern to the survival of democracy were jettisoned leaving a mystery as to why the tribunal would rule against the clear and unambiguous provisions of the constitution.
The Appeal court now has a duty to set the law straight as it answers the following questions:
Is section 285 (13) directed at the tribunal? Can a candidate in an election approach the tribunal on the basis of substantial non compliance in the electoral process by a rival party candidate? What is election? What are all the stages of an election? When can a candidate be said not to have participated in all stages of an election? Can a candidate who admitted under oath not to have participated in the party primaries be said to have participated in all stages of an election?
If this miscarriage of justice is allowed to stand, then the effort put in place by the National Assembly in the making of Section 285(13) would have become a wasted effort as all that a person needs do is to wait in the wings till after party primaries are conducted, and then be anointed as a substitute candidate by the powers that be.
How did PDP and its candidate get to this sorry situation?
The PDP candidate is well known for her lack of ideological bent in politics. She is known to habitually change political platforms without notice like the British weather changes. She has traversed all the major political parties, switching from PDP to PPA, APGA to PDP, AGAP to APC and to PDP. In-fact, even she may have lost counts of the number of times she switched parties for no apparent reason than being opportunistic.
Recall that it was to curb this mischief that the National Assembly enacted the law prohibiting any person who won an election on the platform of a particular political party from switching parties as the seat occupied by the person belongs to the political party and not to the occupier.
In the instant case, the conduct of the candidate is even more vexatious given the manner it occurred. The best illustration is a Nollywood cast where a bride who had followed through a wedding plan up to the altar decides to take off, abandoning the wedding at the point of saying ‘I do’, thus leaving the groom , friends and families in dishonor, disgrace and embarrassment.
This was the lurch APC found herself, after a candidate she produced as winner in her primaries absconded without a quarrel to a rival party. That this experience left a bitter and sour taste in the mouth of APC is an issue for another day.
Make no mistake; I am not advocating that anyone should remain in an inconvenient marriage. But where there are rules governing disengagement, the rules must be obeyed. And in the event of breach, the courts must be bold to serve justice. Again, there is nothing wrong in being a substitute candidate but such a candidate must be eligible for substitution, meaning the candidate must have participated in the primary election which is a sine qua nom or condition precedent to either becoming a substitute or participation in the general election.
The Supreme Court upheld this position in the case of Abiodun Faleke v INEC, where it held inter alia that “a person seeking to contest an election into an office must be a member of a political party and must be sponsored by that party. Furthermore, he must have participated in the party’s primary elections. However, in the circumstances of the case, the appellant Faleke could not metamorphose into the governorship candidate, particularly as he did not participate in the party’s primaries, which is a pre-condition for anyone seeking elective office.