On the state of fact, the Supreme Court will on 20th September, 2016, have the opportunity to resolve the disputes arising from the conduct of governorship election in Kogi State on both 21st November, 2015 and 5th December, 2015. Ordinarily, I would have refrained from comments as we await the decision of the Supreme Court but while knowing the learned lawlords are competent, I would yet not mind expressing my mind, being a registered voter who voted in the said election of 21st November, 2015 and who within the realms of public law has a legitimate expectation reposed in the Independent National Electoral Commission to have acted fairly and reasonably without resorting to any form of arbitrariness.
In exercise of constitutional and statutory powers vested in it, the Independent National Electoral Commission (INEC) appointed the 21st day of November, 2015 for conduct of elections into the office of Governor of Kogi State and did conduct the said election on the said appointed date in all the twenty-one (21) Local Government Areas of the State.
It is pertinent to note that “election” is comprised of a process which includes accreditation, voting, collation, recording on all relevant INEC Forms and declaration of results (I.N.E.C v. Ray (2004) 14 NWLR (Pt. 892)92 @ 123, par. G). It is not out of place to state that on 21st November, 2015 in the conduct of governorship election in Kogi State there was accreditation, voting and collation of results of the election held in all the twenty-one (21) Local Government Areas of the State.
A careful reading of section 133(1) of the Electoral Act, 2010 (as amended) will reveal that there is a distinction between “an election” and “a return at an election”. The said section further distinguished the terms “undue election” and “undue return”. Furthermore, pursuant to section 156 of the Electoral Act, 2010 (as amended) the word “return” is defined as “the declaration by the Returning Officer of a candidate in an election under this Act as being the winner of that election”. It is thus clear that not only must there be an election conducted, there must be declaration of result and subsequently, a return made by the Returning Officer.
Upon the exercise of franchise on the 21st November, 2015 and particularly, on the 22nd November, 2015, the Independent National Electoral Commission through its Returning Officer, Professor (Engr) Emmanuel Kucha and on the basis of facts contained in INEC Form EC8D declared amongst all others that the All Progressives Congress polled 240,867 votes spread across the 21 Local Government Areas while the Peoples Democratic party polled 199,517 votes spread across the 21 Local Government Areas. It is thus clear that on 21st November, 2015 there was not merely accreditation, voting, collation and recording on relevant INEC Forms, there was also declaration of results from the election conducted by the Returning Officer. However, rather than proceed to make a return, the Independent National Electoral Commission declared the election inconclusive and in exercise of administrative fiat relied on an administrative Guideline to reach a decision that the margin of votes between the two leading candidates that is, Prince Abubakar Audu and Captain Idris Ichalla Wada was less than the number of registered voters in 91 polling units where elections did not hold and/or were cancelled. Thereupon, the Independent National Electoral Commission (INEC) indicated that it would conduct supplementary election in the affected 91 polling units on 5th December, 2015.
The action of the Independent National Electoral Commission generated furore amongst the populace who were of the opinion that having conducted election into the office of Governor of Kogi State and declared results in each of the twenty-one Local Government Areas of the said State, the electoral commission erred in law and in morality to have called for supplementary election. Meanwhile, news of the demise of the ebullient and cosmopolitan Prince Abubakar Audu filtered in and upon being intimated with confirmation of same; the Independent National Electoral Commission invited the All Progressives Congress to substitute its candidate for the said election. The All Progressives Congress, without allowing equal opportunities for other aspirants to be voted for in a primary relied on an expired party primaries to pick Alhaji Yahaya Adoza Bello to substitute the deceased Prince Abubakar Audu. This singular act has formed basis of election petition filed, albeit separately by Captain Idris Ichalla Wada and Honourable James Abiodun Faleke (who was candidate at the election of 21st November, 2015 as an associate to the deceased Prince Abubakar Audu for his running for the Office of Governor, Kogi State).
The Election Tribunal and Court of Appeal, while ruling in favour of Alhaji Yahaya Adoza Bello have amongst others relied on section 33 of the Electoral Act, 2010 (as amended) to hold that the upon the demise of Prince Abubakar Audu, the All Progressive Congress could well substitute its candidate with another. However, in expression of my interests predicated on legitimate expectation, the question which had crossed my mind was whether the Independent Electoral Commission was right in law and within the meaning of reasonability to have declared that the election conducted into the office of Governor of Kogi State on 21st November, 2015 was inconclusive?
Furthermore, I also bordered myself with the question as to whether the candidate in an election can be substituted upon the conclusion of election with another candidate who was not a candidate at the conclusion of the election; in other words, whether the deceased Prince Abubakar Audu can be substituted with Alhaji Yahaya Adoza Bello who was not a candidate in the election of 21st November, 2015 and particularly upon the conclusion of election into the office of Governor of Kogi State on 21st November, 2015. In a bid to assuage my mind as regards whether the electoral umpire has acted within the limits of its powers in law. These issues will be treated jointly.
The Pre-condition to be fulfilled in order that a candidate may be deemed to have been duly elected as Governor has been judicially settled in a plethora of judicial authorities including the case of A.N.P.P. v. I.N.E.C. (2010) 13 NWLR (Pt. 1212) 549 @619, where it was held that:
“The constitutional requirement which a candidate contesting for the office of governor of a state must satisfy is to be found in section 179(2)(a) and (b) of the Constitution of the Federal Republic of Nigeria 1999. The section states thus:
“179(2) A candidate for an election for the office of governor of a state shall be deemed to have been duly elected where, there being two or more candidates:
- he has the highest number of votes cast at the election, and
- he has not less than one quarter of all the votes cast in each of at least two-thirds of all the Local Government Areas in the state.”
The pertinent questions at this juncture are-Did the 21st Respondent meet the constitutional requirement stipulated in section 179(2)(a) and (b) of the Constitution?”
(See also Fayemi v. Oni (2010) 17 NWLR (Pt. 1222)326@ 418, Paras. D-G; Ukpo v. Imoke (2009) 1 NWLR (Pt.1121)90 @159, paras. E-G)
It is my firm view that the key issue which both the Election Tribunal as well as the Court of Appeal ought to have resolved is whether on 22/11/2015 when INEC declared results, Prince Abubakar Audu/Hon. James Abiodun Faleke satisfied the constitutional requirements as provided for in section 179(2)(a) and (b) of the 1999 Constitution?
Putting it more aptly, the two lower Courts should have determined whether in the election conducted on 21st November, 2015, Prince Abubakar Audu/Hon. James Abiodun Faleke had the highest number of votes cast at the said election? And whether in the election conducted on 21st November, 2015 Prince Abubakar Audu/Hon. James Abiodun Faleke scored one-quarter (1/4) of all the votes cast in at least two thirds (2/3), that is, in fourteen (14) of the twenty-one (21) Local Government Areas of Kogi State?
The two lower Courts abdicated their juristic responsibilities when they failed to follow settled principles of law relating to the crucial issues referred to above. It is however gladdening that this issue which had been recurring on the face of pleadings, evidence, written Addresses and Briefs on record can now be entertained by the Supreme Court as a Court of last resort, particularly being a substantial point of law. This being the case, it is thus clear that the fundamental issue to be determined by the Supreme Court is a challenge founded on section 179(2), 1999 Constitution.
It is judicially settled that when a challenge is raised to the conduct of election into the Office of Governor of a State pursuant to section 179(2) of the 1999 Constitution, such constitutes a challenge of the computation of votes scored by the parties and calls into question the arithmetic of the votes (see Hope Democratic Party v. Obi (2012) 1 NWLR (Pt. 1282) 464 @ 487, Paras. B-C).
Pursuant to the result of the election conducted on 21st November, 2015 and announced by the Returning Officer, Professor (Engr) Emmanuel Kucha on 22nd November, 2015, Prince Abubakar Audu/Hon. James Abiodun Faleke polled the highest number of votes cast, that is 240, 867 votes while the runner-up, Captain Idris Ichalla Wada polled 199, 514 votes. It is thus clear that Prince Abubakar Audu/Hon. James Abiodun Faleke met/satisfied the requirement of section 179(2)(a) of the 1999 Constitution.
Furthermore, on the question as to whether Prince Abubakar Audu/Hon. James Abiodun Faleke met the requirement of section 179(2)(b) of the 1999 Constitution, the Court of Appeal in its judgment of 4th August, 2016 found on the state of pleadings and evidence adduced on record that:
“The facts of this appeal are fairly straight forward and not disputed. As afore-stated, Prince Abubakar Audu and the appellant were the Governor and Deputy Governor candidates of the APC at the election of 21/11/2015 in Kogi State. At the close of the polls, the 1st respondent INEC, announce the scores of the election showing that whereas the APC led by its flag bearer Prince Abubakar Audu scored 240,867, the PDP led by its own party flag bearer Captain Inuwa Wada scored 199,248 votes. The APC also won one-quarter of the votes cast in each of all the Local Government Areas of the State, while the PDP also won one-quarter of the votes cast in each of the two-thirds of the Local Government Areas in the State.” (underlining mine for emphasis)
There is thus conclusive evidence on record that Prince Abubakar Audu/Hon. James Abiodun Faleke had one-quarter (1/4) of the votes cast in each of the twenty-one (21) Local Government Areas of the state. Prince Abubakar Audu/Hon. James Abiodun Faleke thus met the constitutional requirement of section 179(2)(a) and (b) of the 1999 Constitution and are in law deemed to have been duly elected Governor-elect and Deputy-Governor-elect respectively on 22nd November, 2015.
On 22nd November, 2015, rather than adhere with section 179 of the 1999 Constitution and return Prince Abubakar Audu/Hon. James Abiodun Faleke as having been duly elected Governor-elect and Deputy-Governor-elect respectively, INEC hid under the cloak of its Guidelines to declare the election conducted on 21st November, 2015 as being inconclusive.
It thus becomes imperative at this point to state that there is no enabling provision in the 1999 Constitution which vests power in INEC to make Guidelines (see Section 153; paragraphs 14-15, Third Schedule, Part I of the 1999 Constitution; INEC v. Musa (2003) 3 NWLR (Pt. 806)72 @ 197, Par. D). As such, the INEC Guideline (Manual for Election Officials) which was relied upon to declare the Kogi State Governorship election of 21st November, 2015 inconclusive was not derived from any power delegated to INEC by the 1999 Constitution.
Indeed, the power vested in INEC to make Guidelines is derived from section 153 of the Electoral Act, 2010 (as amended) which provides that:
“The Commission may, subject to the provisions of this Act, issue regulations, guidelines, or manuals for the purpose of giving effect to the provisions of this Act and for its administration thereof.” (underlining mine for emphasis)
It is thus clear that the power to make the INEC Guidelines (Manual for Election Officials) is derived from a legislative power delegated to it by the National Assembly. T however settled law that the National Assembly as well as Act/Laws enacted by it is subject to the overall supremacy of the Constitution. Therefore, the National Assembly which the Constitution vests powers cannot go outside or beyond the Constitution. Where such a situation arises, the Courts will, in an action by an aggrieved party, pronounce the Act unconstitutional, null and void (See INEC v. Musa (supra) 199, paras. F-G; A.-G., Abia State v. A.-G., Federation (2002) 6 NWLR (Pt. 763)264)
Knowing fully well that the exercise of its powers must be within the confines of the stipulations of the 1999 Constitution, the National Assembly, in enacting the Electoral Act, (supra) clearly stated that the purpose of delegating powers to INEC to make regulations, guidelines or manuals. The purpose as stated above (section 153) is unambiguous and clear. That is, to give effect to the provisions of the Electoral Act and its administration. The National Assembly thus never intended that INEC will make Guidelines, the provisions of which will amend, alter or enlarge the provisions of the 1999 Constitution. INEC lacks such powers!
In a judicial and judicious determination of the appeal before it, the Supreme Court must thus question the power of INEC to make Guidelines which are outside the provisions of section 179 of the 1999 Constitution.
In INEC v. Musa (supra) @ 157, paras D-G, the Supreme Court held that:
“I take as my starting point some interrelated propositions which flow from the acknowledged supremacy of the constitution and by which the validity of the impugned provisions will be treated. First of all powers, legislative, executive and judicial must ultimately be traced to the constitution. Secondly, the legislative powers of the legislature cannot be exercised inconsistently with the Constitution. Where it is so exercised it is invalid to the extent of such inconsistency. Thirdly, where the constitution has enacted exhaustively in respect of any situation, conduct or subject, a body that claims to legislate in addition to what the Constitution had enacted must show that it has derived the legislative authority to do so from the constitution. Fourthly, where the constitution sets the condition for doing a thing, no legislation of the National Assembly or of a State House of Assembly can alter those constitution in any way, directly or indirectly, unless of course the constitution itself as an attribute of its supremacy expressly so authorized.” (underlining mine for emphasis)
It has been stated earlier on that the 1999 Constitution did not in any way vest power in INEC to make any regulation, Guideline or Manual. It is thus clear that the INEC Guideline (Manual for Election) through which it held the election of 21st November, 2015 inconclusive was not made from powers derived from the 1999 Constitution. Furthermore, application of the provision of the said Guideline/Manual, to the extent to which it provides that where the margin of votes between the two leading candidates is less than the number of registered voters in polling units where election did not hold constitutes an attempt by INEC to add to the condition stipulated for deeming a person as having been duly elected to the Office of Governor of a State pursuant to section 179 of the 1999 Constitution.
The Supreme Court has held that having not derived the power to so do from the Constitution, INEC lacks requisite vires to do as it did on 21st November, 2015. INEC was thus wrong in law to have declared as inconclusive, the election conducted into the Office of Governor of Kogi State on 21st November, 2015. It is expected that the Supreme Court would in exercise of its powers in Order 8 Rule 12, Supreme Court Rules review the purported exercise of powers by INEC premised on its Guidelines and hold that such constitutes an attempt to alter and enlarge the conditions set out in section 179 of the 1999 Constitution, pronounce such as being unconstitutional, null and void. The Supreme Court is further expected to pronounce that Prince Abubakar Audu/Hon. James Abiodun Faleke were deemed to have been duly elected as Governor and Deputy-Governor premised on the election conducted into the Office of Governor of Kogi State on 21st November, 2015 and further declare that the purported Supplementary election conducted on 5th December, 2015 was unconstitutional, unlawful and an exercise embarked upon by INEC unlawfully and in a crass waste of tax payers’ money.
As soon as the Supreme Court declares that the purported election conducted on 5th December, 2015 was unconstitutional, unlawful, illegal, it will be clear that Alhaji Yahaya Adoza Bello, not being a candidate who won the election of 21st November, 2015 was unduly returned as elected Governor of Kogi State by INEC as it is trite that a case of undue return is made where a person, not being a candidate at the election was retuned and issued with a certificate of return and the proper venue to ventilate such grievance is the Election Tribunal (see the decision of the Supreme Court in Wambai v. Donatus (2014) 14 NWLR (Pt. 1427)223 @251, paras. G-H).
There has been arguments and counter arguments as to whether the votes cast on 21st November, 2015 were cast in favour of the political party or the candidates. I note earnestly that it is settled law that the law is settled that the votes cast on the day of election belong to the political party. Reliance for this has been chiefly rested on the provisions of section 221 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). A careful reading of the said section will however reveal that it did not provide for the party as the contestant on the day of election. It merely provided that only a political party can canvass (solicit or campaign) for votes in an election and that only a political party can contribute to the funds of any political party or election expenses of any candidate in an election.
It is the firm belief in this appraisal and as had been firmly established by the Supreme Court, a candidate at an election and the political party are mutually exclusive entities. The former is a natural person while the latter is an artificial person. While it is true that they may have a common interest and common grievance, it must yet be stated that the law gives both the candidate and political party independent recognition and rights. It may thus be safe to conclude that the political party merely participated in the election and its participation did not exceed nomination and sponsorship of its candidate, submission of the name of its candidate to INEC, campaigning for the candidate, provision of election finance, arranging for and sending poll agents and collation agents to both the polling unit and collation centers after conclusion of voting (Buhari v. Obasanjo (2009) 2 NWLR (Pt. 851)510 @ 563, paras. A-D; 585, paras. B-D; I.N.E.C v. Action Congress (2009) 2 NWLR (Pt. 1126)524 @ 593, paras. D-F).
Having held that the law gives both the candidate and political party independent recognition and rights, it is clear that the right accruing to a candidate in an election is independent of the rights accruing to the political party. Putting it more aptly, the right which accrued to Prince Abubakar Audu/Hon. James Abiodun Faleke in respect of the votes cast in their favour on 21st November, 2015 is independent of the right which accrued to the All Progressive Congress on the basis of having nominated, sponsored and campaigned for Prince Abubakar Audu/Hon. James Abiodun Faleke in respect of the said election.
The independent right of Prince Abubakar Audu/Hon. James Abiodun Faleke to the votes cast in their favour on 21st November, 2015 is judicially recognized. In the case of P.D.P v. I.N.E.C. (1999) 11 NWLR (Pt. 626)200 @ 249, paras. D-E, the Supreme Court observed that:
“Alhaji Atiku Abubakar and Mr.Bonnie Haruna were simultaneously elected as Governor and Deputy-Governor of Adamawa State by the electorate of that State. Each must have his own supporters that voted for him. Each has therefore acquired a right by being elected.”
It is thus clear that each of Prince Abubakar Audu and Hon. James Abiodun Faleke acquired rights to votes cast in their favour on 21st November, 2015. I amof the firm view that such votes to which each of Prince Abubakar Audu and Hon. James Abiodun Faleke had rights cannot be transferred to Alhaji Yahaya Adoza Bello under the guise that they were votes cast in favour of the All Progressives Congress (APC).
On the strength of the foregoing, it is clear that votes cast in an election cannot in law be said to have been cast in favour of the political party and it is earnestly desired that the Supreme Court upon a call to so do will depart from its former decisions that votes cast in an election belongs to a political party. At that point, it will become clear that the votes cast in favour of the Prince Abubakar Audu/Hon. James Faleke ticket on 21st November, 2015 can neither be transferred to or be inherited by Alhaji Yahaya Adoza Bello.
Finally, it is earnestly expected that in righting the wrongs meted out on the electorate of Kogi State who unanimously voted for Prince Abubakar Audu/Hon. James Faleke on 21st November, 2015 the Supreme Court will hold that having become deceased prior to taking oath of office as Governor of Kogi State, Section 181(1) of the 1999 Constitution is activated and pronounce Honourable James Abiodun Faleke as duly elected Governor of Kogi State; Order INEC to issue him with a certificate of return to that effect and Order the Chief Judge of Kogi State to swear him in as Governor.
-Barrister Oluwole Oladimeji
