This article is by no means an attempt to pre determine the issue before the Anambra State National and State Assembly Election Tribunal in the matter between Distinguished Senator Victor Umeh of the All Progressive Grand Alliance (APGA) and the candidate of the Peoples Democratic Party (PDP), Sen. Uche Ekwunife.
This is a case that has generated lots of attention and disinformation, hence, it becomes necessary that the issues in contention are further clarified for the benefit of the public. This is irrespective of where the pendulum of justice swings at the end of the day.
Umeh’s main contention bothers on violation of extant provisions of the 1999 Constitution as amended and the Electoral Act 2010 as amended. His contention has nothing to do with how PDP conducted her primary election or the qualification of their candidate, but that the party fielded a candidate who ought not to have been fielded having not participated in the primary election process.
This position will be best appreciated bearing in mind the Supreme Court clarification of the meaning of ‘Election’ in Agbaso v Ohakim. The court said election is ‘not an event but a process leading to an event. It is necessary that everything connected with the process leading to the election including the actual election and its aftermath come within the jurisdiction of the election tribunal.”
Unfortunately this salient clarification by Supreme Court is lost on political parties and office seekers intent on violating the electoral process with the hope that the end will justify the means. The courts over time have frowned at these violations by desperate politicians. The position of the courts in interpreting the Constitution and the Electoral Act has not changed as it accords the same value to the process as well as the event. To the courts, the means must justify the end, and not otherwise.
Recall that one of the major issues bedeviling our democracy is the impunity of the political class who are not willing to play by the rules. They have shown scant respect for the constitution, the Electoral Act and the rules of their own political party with regards to the process of nomination of candidates.
To curb this mischief, and in particular the excesses of the political godfathers, and to sanitize the political process, Section 141 of the Electoral Act 2010 as amended having set aside and overridden the decision in Amaechi v INEC provided that a ‘person to be declared and returned as a winner of an election by court or a tribunal must have been a person who have participated as a candidate in all stages of the election starting from his nomination as a candidate to the actual voting’. This is the position of the law and it has not changed, hence the courts are bound to ensure that the political parties comply with the law, particularly the law on how each political party fields its candidates in an election.
(1) Did the PDP candidate in the 2019 Anambra Central Senatorial District election participate in all stages of the election as required by Section 141 of the Electoral Act? What does the Act mean by ‘All Stages’ of the election?
(2) Can a candidate validly nominated by a political party as its candidate in a particular election be nominated by a rival party as a candidate for the same position in the same election? That is, can a candidate be a beneficiary of multiple nominations in the same election?
On issue one, Undoubtedly, Section 87(1) of the Electoral Act provides that a political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants for all elective positions”.
In this case, the candidate fielded by PDP did not participate in the primary election held by PDP on 2nd October 2019 or any other primary election conducted by the party on any other date for the purpose of nominating its candidate for the election in question.
By her admission under cross examination, the PDP candidate was at the time of the PDP primary election a member of the APC where she ran for the APC primary election and was returned by the party and was subsequently published by INEC as a candidate of APC for the Anambra Central Senatorial District Election. She remained in that position several weeks after the PDP primary election was concluded.
Section 285(13) of the Constitution of the Federal Republic of Nigeria, as amended, provided that “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 the stages of the election.” Having not participated in the PDP primary can she be said to have participated in all stages of the election?
However, the PDP candidate purportedly resigned from APC and was nominated as substitute candidate of the Peoples Democratic Party on November 17, 2018.
While there is nothing wrong in being a substitute candidate, such a candidate must be eligible for substitution, meaning the candidate must have participated in the primary election which is a condition precedent.
The Supreme Court said this much in the case of Abiodun Faleke v INEC, where it ruled as follows “By virtue of section 177(c) of the 1999 Constitution, a person seeking to contest an election into the office of Governor of a State 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. The provisions of Section 181 (1) of the Constitution would have become applicable. However, in the circumstances of the case, with the election held on 21/11/2015 being declared inconclusive and the Governorship candidate having died, the appellant could not metamorphose into the Governorship candidate. His status remained that of a Deputy Governorship candidate to a deceased Governorship candidate, particularly as he did not participate in the party’s primaries, which is a pre-condition for anyone seeking elective office.
The case of Ehilanwo v INEC and the recent case of APC Zamfara further rests on all fours in the instant case. In the case of Zamfara for instance, the court in one fell swoop and without mercy disqualified the entire APC candidates in the 2019 general elections on the grounds that they did not participate in primary elections which is condition precedent.
Note that the Zamfara case comprised of the governorship candidate who polled nearly NINE HUNDRED THOUSAND votes, all senatorial candidates, all House of Representatives candidates and all State House of Assembly candidates on the account of non-compliance with the electoral process.
On whether a validly nominated candidate of a political party for a particular election can be nominated by another party for the same election, I submit that the recent judgment voiding the candidature of Hon Uche Nwosu as governorship candidate in Imo State serves as a useful guide.
Justice Inyang of the Federal High Court Abuja voided the candidature of Nwosu on the ground of double nomination by two political parties for the same election, which are All Progressives Congress (APC) and Action Alliance (AA) in violation of Section 37 of the same Act. Uche Nwosu participated in the APC primaries held October 6, 2018 and was subsequently nominated as the party’s governorship candidate. While holding the APC ticket the time of primary lapsed and he became nominated as the AA candidate.
When you have done things illegally it is not the duty of the court to aid you to benefit from illegality. Laws are made to be obeyed by all concerned, including political parties. Therefore, the law shall take its course where a party fails, neglects or refuses to comply with the mandatory provisions of the Electoral Act on nomination and submission of names of its candidate for a general election. Such a political party shall be deemed or taken in law to have fielded no candidate in that particular election. See the case of APC v. Marafa. All eyes are now on the tribunal’s three wise men to render justice where it is due after considering all the facts of the matter.