7th November, 2015 has a lot of implications for our electoral jurisprudence. The
judgment has laid down a radical, novel and insightful precedent in Nigeria. There is no
judicial authority known to me whose facts are on all fours with this case.
Let me admit that I have not read the judgment. Therefore, my opinion on the judgment
is neither infallible nor sacrosanct. However, the report of the News Agency of Nigeria
(NAN) on the ratio (reason) for the epochal judgment is instructive. The material part of
the report is reproduced below:
"The Tribunal, sitting in Abuja, declared the candidate of the All Progressives Congress
(APC) and a Minister designate, Mrs Aisha Alhassan, as the winner of the April 11
governorship election in the state. In a judgment the three-member tribunal held that
Ishaku was not validly nominated as candidate of the PDP and therefore was not
qualified, ab-initio, to contest the governorship election."
"Specifically, the tribunal held that the governorship primaries purportedly conducted by
the PDP in the state was done in violation of section 78 (b) (1)(2) of the Electoral Act
which guides parties nomination to the position of governorship candidate. It held that
contrary to the provision of the section, PDP conducted the purported primaries at its
national secretariat, Wadata Plaza, in Abuja with no clear delegation from the local
government areas in the state."
"The tribunal sustained the testimonies of INEC head of election monitoring that the
commission was not aware of any primaries conducted by the party in line with the
provision of the electoral act which produced Ishaku as the party’s flagbearer."
"Section 78 (b) (1)(2) of the Electoral Act states: In the case of nomination to the
position of Governorship candidate, a political party shall where they intend to sponsor
candidates:
(i) hold special congress in each of the Local Government Areas of the States with
delegates voting for each of the aspirants at the congress to be held in designated
centres on specified dates.
(ii) the aspirant with the highest number of vote at the end of the voting shall be
declared the winner of the primaries of the party and aspirant’s name shall be
forwarded to the commission as the candidate of the party, for the particular state."
"The tribunal held that the defence by the PDP that the primaries were shifted to Abuja
because of security challenges in the state was rejected by the tribunal. It sustained the
evidence of the INEC official that there was no primaries election in the state and the
emergence of Ishaku through the purported election in Abuja was after the statutory
stipulated time for party primaries had elapsed."
"It held that since Ishaku was not duly sponsored by the PDP, the party had no
candidate in the governorship election in the eyes of the law. The tribunal therefore
voided the votes of the PDP and Ishaku in the election saying ``it is a waste’’ and
declared the APC and its candidate, which came second, as the valid winner of the April
11 election."
It is wrong to relate or compare this case with the locus classicus case of Amaechi v.
INEC (2008) 5 NWLR (Pt. 1080) p. 227. Whereas the issue in Amaechi's was on who
was the lawful and rightful candidate of the Peoples Democratic Party (PDP) as
between Mr. Celestine Omehia and Mr. Rotimi Amaechi. The question in the Taraba's
case is whether the PDP participated at all in the election in the eyes of the law.
By the provisions of Section 140 of the Electoral Act 2010 (as amended), where an
Election Tribunal or Court determines that a candidate who obtained the highest votes
was not qualified to contest the election, it shall not declare the candidate with the
second highest votes as elected, but it shall order for a fresh election. On the other
hand, where the Tribunal or Court determines that the candidate who was returned as
elected did not score majority of valid votes at the election, it shall declare the
candidate with the highest valid votes as elected.
The law is now settled that qualification/disqualification is both a pre-election and post-
election matter with concurrent jurisdiction exercisable by both the Election Tribunal and
the High Court. The process of nomination of a candidate touches on qualification of
the candidate and qualification is one of the four grounds cognizable by Section 138 of
the Electoral Act upon which an election may be questioned at the tribunal. See the
recent cases of Gwede v. INEC (2015) 242 LRCN 138 and Akpamgbo-Okadigbo v.
Chidi (No. 2) (2015) 10 NWLR (Pt. 1466) 124.
Thus, the law has endorsed the hybrid status of qualification/disqualification of a
candidate in an election. Accordingly, it is wrong for anyone to say that how the PDP
nominated her candidate does not concern the petitioner and her party - the APC.
If the issue was solely on the qualification of the PDP candidate then the Tribunal's
order declaring the APC candidate as duly elected was arrived at per incuriam (in error)
as the proper order would have been an order for a fresh election.
However, I need to restate that the main issue in this case is beyond the qualification of
the PDP candidate, Mr. Darius Ishaku. Did the PDP as a political party participate in the
April 11th, 2015 gubernatorial election in Taraba State in the eyes of the law? That is
the crux of the matter. Although the Supreme Court held in the Amaechi's case that it is
a political party that is voted for in an election and not the candidate, the law is explicit
that a party cannot participate in an election without validly nominating a qualified
candidate.
The fact that the purported PDP primary election was held outside the stipulated time
as stated by an INEC staff whose testimony was accepted by the Tribunal is conclusive
of the fact that the PDP never validly nominated a candidate as required by law. In
essence, the PDP did not participate in the election. It has been argued by some that it
amounts to "double standard" for the Tribunal which sat in Abuja because of the
security situation in the State to invalidate the PDP primary election which was taken to
the party secretariat in Abuja also because of "security concerns".
On the surface, this argument appears logical. However, the point should be made that
the Tribunal was not the proper forum for the PDP to raise such a defence. If INEC that
is vested with the constitutional power to monitor and supervise primary elections of
political parties did not admit or agree with the defence of the PDP on why it held Its
purported gubernatorial primary in Abuja instead of Taraba State as stipulated by the
Electoral Act, there is no justification for inviting the Tribunal to consider, accept or
agree with that defence.
Also, it should be emphasised that even If the primary was held in Taraba State it
would not have altered the decision of the Tribunal since it was held outside the
stipulated time. The Court of Appeal and possibly the Supreme Court is open for the
respondents who are dissatisfied with the findings of the Tribunal to test whether
indeed the purported primary was held outside the stipulated time.
Having regard to Section 143 of the Electoral Act, Mr. Ishaku will vacate office as the
governor of Taraba State for the swearing in of Mrs. Alhassan of the APC except he
appeals against the decision of the tribunal within 21 days of the delivery of the
judgment.
I firmly believe that the decision of the Tribunal is legally defensible. Since the PDP
cannot be said to have participated in the election, the Tribunal rightly held that the
votes casted for the party and its candidate were invalid and wasted. The Tribunal's
consequential order declaring Mrs. Alhassan of the APC as the winner of the election is
plausible, inviolable and in obedience to the provisions of Section 140 of the Electoral
Act given that she scored majority of valid votes at the election.
The judgment is an audacious precedent against arbitrariness and impunity by political
parties in the selection and nomination of their candidates. It is hoped that the PDP and
other parties will be humbled by this judgment and refrain from political rascality and
lawlessness in the interest of justice and democracy.
Inibehe Effiong, Esq. is a Legal Practitioner.
Email: inibehe.effiong@gmail.com
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