Revisiting the Qualification of Buhari

By Sam Kargbo…This effort is inspired by the need to put into proper perspective the questions of the eligibility of General Muhammadu Buhari to contest the last presidential election that he won by overwhelming votes. The challenge to Buhari’s qualification commenced on the eve of the last election. His qualification to contest the election is being challenged on the allegation that he failed to present a copy or copies of his educational certificate(s).

 

Buhari claims that he was educated up to school certificate level; and that his certificate was with the military authorities –a claim that triggered the suspicion that he might not have told the whole truth about his educational qualification. This suspicion was heightened when the highly partisan military authorities did not only deny having possession of his certificate but also announced that what they had in his records was a recommendation from the principal of the school he claimed to have attended. The fact that the school in question came to state that he attended the school, and published a statement of the West African School Certificate (WASC) result of the General did not assuage those calling for the Independent National Electoral Commission (INEC) to disqualify him. Many lawyers who claim to have exceptional expertise in the law regarding elections declared that INEC could disqualify General Buhari on account of his failure to present his certificate. Some other lawyers asserted that Buhari may have subscribed false information in the affidavit and/or documents he submitted to INEC. Relying on the provisions section 31(5)-(6) of the Electoral Act, 2010 that provides that “(5) Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, High Court of a State or FCT against such person seeking a declaration that the information contained in the affidavit is false and (6) If the Court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the Court shall issue an order disqualifying the candidate from contesting the election” some lawyers have even taken out suits at the Federal High Court praying that court to disqualify him on the reasoning that he did not provide proof or evidence of his educational qualification in his INEC Nomination Form in line with the qualification criteria set out in Section 131(d) of the 1999 Constitution (as amended). Some even went to the ridiculous extent of asking for his disqualification on the allegation that he stated in his affidavit that his certificates are with the Secretary of the Military Board when the army has no Military Board.

 

First, those who urged INEC to disqualify Buhari totally misconstrue the limits of INEC’s administrative powers to disqualify a candidate for elections and its lack of judicial powers to adjudicate and deliver a decision on the qualification or disqualification of a candidate for election. Neither the Constitution nor the Electoral Act confers on the Independent National Electoral Commission (INEC) the power to disqualify a candidate for an election. See Action Congress vs. Independent National Electoral Commission (2007) 12 NWLR (Pt.1048) 222. There was a point in time in the history of elections in Nigeria when the law of the land granted the Electoral Body the power to disqualify candidates. Section 21(8) and (9) of the Electoral Act (2002) granted INEC the power to disqualify candidates, but those sections were excluded in the 2006 and 2010 Electoral Acts. Even if those provisions were retained, they would have been voided on account of the provisions of Section 137, which do not authorise the National Assembly to grant such powers to INEC. The disqualification of a person from any elective office under the Constitution involves the determination of that person’s civil rights and obligations and which determination is, by virtue of sections 6 and 36 of the Constitution specifically assigned to courts or other tribunals established by law and constituted in a manner as to ensure their independence and impartiality. The respondent (INEC) is not a court or other tribunal established by law under the Constitution. And it is not even constituted for the proper determination of matters pertaining to a person’s civil rights and obligations. See AC vs. INEC supra.

 

Non-submission of educational certificates or other qualification credentials does not disqualify a person. What is required of a candidate is to subscribe information about his or her qualification in INEC Form CF001, which is the Affidavit in support of Personal Particulars of persons seeking election to Office/Membership of President. See Terver vs. Peoples Democratic Party, SC.236/2013, and Action Congress vs. Independent National Electoral Commission (2007) 12 NWLR (Pt.1048) 222. In that respect, Buhari had subscribed that he had his WASC in 1961 and that he attended the following institutions: Nigeria Military Training School in 1963; Defence Service College, India in 1973 and the United States Army War College in 1980. Having done that, he had done the right thing under the law.

 

This, however, cannot be interpreted to mean that INEC does not have a duty to ensure that candidates comply with the provisions of the Constitution regarding qualification. Section 31 (2)-(6) of the Electoral Act, 2010 (as amended) and other similar provisions in the earlier Electoral Acts are meant to ensure that only qualified candidates contest elections. After a candidate has submitted his or her particulars along with the affidavit, INEC is enjoined to publish the particulars and the affidavit in the candidate’s constituency within seven days to enable members of the public to challenge the veracity of the candidate’s qualifications. See AC vs. INEC, and Kakih vs. PDP supra.

 

The provisions of Section 31(4)-(6) of the Electoral Act, 2010 give the impression that a candidate can be disqualified on account of giving false information of any kind in the affidavit or any document submitted by a candidate to INEC. With due respect, those provisions will only be valid and operational if the false information concerns – and is limited to – the candidate’s qualification as prescribed in the Constitution. If it is interpreted to mean false information of any kind, then it will be challenged on at least two grounds. First, because the Constitution has covered that field and therefore the provisions of Section 4(2) of the Constitution empowering the National Assembly to make laws for the peace, order and good government of the Federation or any part thereof with respect to elections cannot apply; second, because it will be inconsistent with the Constitution. The Constitution of the Federal Republic of Nigeria, 1999 (as amended) has made provisions for the qualification of a person for election to the office of President in Section 131 and disqualification of a person for election to the office of President without any enabling power to the National Assembly to prescribe further conditions. So long as the Constitution has covered that field, any attempt by the National Assembly to make further enactments or provisions concerning or touching on that field without the express authorization of the Constitution will amount to a trespass into that field. “The doctrine of covering the field can arise in two distinct situations. First, where in the purported exercise of the legislative powers of the National Assembly or a State House of Assembly, a law is enacted which the Constitution has already made provisions covering the subject matter of the Federal Act or the State Law. Second, where a State House of Assembly, by the purported exercise of its legislative powers enacted a law which an Act of the National Assembly has already made provisions covering the subject matter of the State law. In both situations, the doctrine of covering the field will apply because of the “Federal might” which relevantly are the Constitution and the Act. See” Per TOBI, JSC. (P.108, Paras. C-F) in INEC v. Musa (2003) 3 NWLR (Pt.806)72

 

On the second ground, the sum of the judicial reasoning on it is that there should be no disconformity between a statute and the Constitution on any subject or issue whatsoever. Once, as in this case, the conditions, situations or happenstances under which a person is disqualified from contesting an elective post or office are exhaustively entrenched in the Constitution; they cannot be amended, varied or expanded by legislation. See AG Abia State vs. AG Federation (2002) 6 NWLR Pt. 763 Page 264

 

Since Section 131 of the Constitution is not self-executing, Section 31 of the Electoral Act, 2010 is wholly and solely meant to give effect to that section and not to add to the conditions for disqualification prescribed in Section 137 of the 1999 Constitution. The Electoral Act cannot add to or subtract from the elaborate provisions on the subject of qualification and disqualification for election into the office of the President provided for by the Constitution of the Federal Republic of Nigeria, 1999. See AG Abia State vs. AG Federation (2002) 6 NWLR Pt. 763 Page 264; ANPP vs. Usman; ANPP vs. Hon Balla Na’Allah.

 

A candidate does not need to go beyond subscribing or swearing to an affidavit, since, by doing so, he or she is taken to be telling the whole truth and nothing but the truth. Where, therefore, a candidate subscribes or swears to an affidavit stating that he or she is qualified, INEC is bound to accept the rebuttable presumption that the candidate is qualified. It is the duty of members of the public to present to the court facts that can rebut that presumption.

 

The qualification of a candidate can be challenged in two circumstances. Firstly, where a Nigerian citizen has reasonable grounds that the candidate subscribed false information concerning his or her qualification in a document or affidavit he or she presented to INEC. In this circumstance, the case must be filed at the Federal High Court, State High Court or FCT High Court. See Section 31(5) of the Electoral Act, 2010, as amended. The term “any person” in Section 31(5) cannot mean more than “any Nigerian citizen” with the capacity to sue. The interpretation given by the Supreme Court in Terver Kakih vs. Peoples Democratic Party regarding the discretion that an aggrieved party has over the court to ventilate a grievance under Section 87 (9) seems to suggest that a case instituted pursuant to Section 31(5) can only be instituted at the Federal High Court when the main reliefs are against INEC or any other Federal agency and in all other cases at the State High Court or FCT High Court. This can hardly be so. It is highly unlikely that one can have and canvass in court reliefs that are mainly targeted at INEC in a suit challenging the qualification of a candidate. Most times the reliefs against INEC in such a matter are ancillary to the reliefs against the person whose qualification is being challenged and his party. The earlier decision of the Supreme Court in Jev vs. Iyortyom (2014) 14 NWLR (pt.1428) 443-633 makes it clear that the choice as to the court is one dictated by convenience and nothing else. The sorry point here is that the Kakih v. PDP is later in time and by our jurisprudence, it represents the extant law.

 

It is also very unlikely that a challenge of the qualification of a candidate can be maintained in a suit commenced by an Originating Summons. “ Reasonable grounds” referred to in section 31(5) do not mean anything less than proof beyond reasonable doubt. The determination of a suit calling for a person’s disqualification is riddled with complex questions of law and facts which can hardly be by affidavit evidence.

 

The second instance is when the candidate wins an election and is returned by INEC. See Section 138 (1)(a) of the Electoral Act. In this case, the right to challenge the qualification of a winner declared by INEC is restricted to a candidate in the election in question and/or a political party which participated in the said election. See Section 137(1) of the Electoral Act, 2010. In the case of State Assembly, National Assembly and Governors, the forum is the electoral tribunal, and in the case of the President, it is the Court of Appeal.

 

Let me humbly demonstrate my arguments here with cases. In the case of MOH’D BALA KALGO & Anor v. HON. ENGR. ABDULLAHI UMAR FARUK & ors (2008) LPELR-4495(CA), which I had the privilege of handling for 1st and 2nd Respondents, the issue of whether the tribunal below was right holding that the question whether or not a person is qualified to contest an election within the meaning of section 145(1 )(a) of the Electoral Act, 2006 can only be determined exclusively by reference to the constitutional requirements of sections 65 and 66 of the 1999 Constitution was determined by the Court of Appeal. In the case, counsel for the Appellant argued that “where a candidate fails to withdraw properly or a political party improperly substitutes a candidate and as a result of which double nomination arises, the affected candidate is thus not qualified to contest the election. Reference was made to S. 145 (1)(a) of the Electoral Act, 2006 and we were urged to so hold, since such a nomination is void ab initio and you cannot put something on nothing and expect it to stand or stay.” In response, I submitted that “the phrase, “at the time of the election not qualified to contest the election,” under S. 145(1)(a) of the Electoral Act, 2006 means not qualified under Sections 65 or 66 of the Constitution of the Federal Republic of Nigeria, 1999. Thus, in order to succeed, the Appellants must have pleaded and proved that at the time of the election, the 1st Respondent suffered from one constitutional disability or the other. He added that the Appellants failed in this and other directions, because they simply made spurious and unproven allegations which bordered on non-compliance with provisions of the Electoral Act, 2006 and which said provisions viz SS. 34, 36 and 38 thereof, cannot be interpreted as having added to, enlarged and or expanded the provisions of Sections 65 and 66 of the 1999 Constitution. Furthermore, that the qualification of 1st Respondent cannot be validly questioned under S. 145 (1) (a) of the Electoral Act, 2006 on the basis of Sections 34, 36 and 38 of the same.”

 

In resolving the issue, the Court of Appeal held among other things that “Anyway, issue of qualification or disqualification is a constitutional one. It is quite distinct from issues involving withdrawal of nomination and or change, replacement or substitution, which are issues of compliance or non-compliance with provisions of the Electoral Act, 2006.”

 

In the case of IBRAHIM MUSA ARGUNGU & ANOR V. UMAR ABUBAKAR T. ARGUNGU & ORS (2008) LPELR-4275(CA), in which I also had the privilege of representing the 1st and 2nd Respondents, one of the two issues before the Court of Appeal was “whether having regard to the combined Effect of Sections 34, 36 and 38 of the Electoral Act 2006, the 1st Respondent “was at the time of the election not qualified to contest the election” held on the 21st of April, 2007 into the Kebbi North Senatorial District of the National Assembly of the Federal Republic of Nigeria.”

 

For good reason, I will reproduce some of the arguments proferred by counsel in the matter. “On the first issue, it was the contention of the Learned Senior Counsel for the appellants that invalid nomination implies non – qualification to contest an election even if the candidate is qualified to hold the elective office. He referred to the case of Anazodo V. Audu (1999) 4 N.W.L.R. (Pt. 600), 530. Also, that the Electoral Act 2006, does not, and cannot provide for disqualification of a candidate from being elected and so it limits its application to matters regulating being qualified to contest. That way, it never re-enacted, abridged or modified the extant and express provisions of Sections 65 and 66 of the 1999 Constitution as to qualification and disqualification of any person to be elected into the Senate of the Federal Republic of Nigeria.

 

Further, the Learned Silk submitted that in order to appreciate whether a winner at an election was not qualified to contest, recourse ought to be had to Section 40 and 41 of the Electoral Act, 2006 and read along with Sections 145 (1) (a) and 146 (1) of the same Act. Moreover, that the stand taken by the lower Tribunal that if a person was not validly nominated, in that his nomination was in breach of the Electoral Act, he cannot be said not to be qualified to contest at the time of the election cannot be allowed to stand. It was the Appellants’ further contention that the provisions of Section 65 and 66 of the Constitution prescribe criteria for general qualification for any person to be elected as a Senator but do not prescribe the conditions to be met by a person to qualify to contest election.

 

Furthermore, that those who do not qualify to contest by reason of invalid nomination cannot be heard to assert that at the time of the election they were qualified to contest and that all the hurdles set up by the Constitution and the Electoral Act must be surmounted before a candidate can lawfully contest an election and cited the case of Ugwu V. Ararume (2007) 12 N.W.L.R. (Pt. 1048) at 498. Moreover, that if a person meets the entire constitutional requirements but is not validly nominated owing to breach of the mandatory provisions of Sections 32, 34, 36 or 38 of the Electoral Act, Section 40 of the Electoral Act does not recognise such a person as a contestant entitled to be placed on the ballot at the election. Learned Senior Counsel argued that the Tribunal misapplied the ratio in Attorney General Abia State V. Attorney General Federation (2002) 6 N.W.L.R. (Pt. 763). Learned Counsel then referred this Court to Item 22 on the Exclusive Legislative list under the 1999 Constitution and the power of the Independent National Electoral Commission to “carry out such other functions as may be conferred upon it by an Act of the National Assembly” under paragraph (i) of Part I in the Third Schedule to the 1999 Constitution.

 

On pages 15 – 16 of the brief of the appellants, the lists of Exhibits tendered at the trial are listed. The Learned Senior Counsel submitted that since the parties had agreed that the petition should be determined solely on the basis of the listed exhibits, the Tribunal ought to have properly evaluated the documents in order to come to a just determination of the case in their judgment. Reliance was placed on the cases of Tangale Traditional Council V. Fawu (2001) 17 N.W.L.R. (Pt. 742) 293 and UBA PLC V. Mustapha (2004) 1 N.W.L.R. (Pt. 855) 443.

 

It was a further contention of the Learned SAN that the lower Tribunal failed to evaluate the evidence placed before it and then from pages 16 – 27 of their brief, efforts were made to show how the Tribunal ought to have evaluated the documentary evidence placed before it. I need not go beyond this as the issue before us has nothing to do with non evaluation of evidence by the Tribunal.

 

Again, that the 1st Respondent having not shown that prior to the submission of his name by the 2nd Respondent as its candidate he had withdrawn his candidature under ANPP, his nomination was in breach of the provisions of Sections 34 and 36 of the Electoral Act 2006 and as such he was not qualified to contest notwithstanding that he might have met all the Constitutional requirements to be elected to the Senate. Finally on the issue, it was submitted that Section 38 of the Electoral Act frown at double nomination and that a person who is afflicted by this fundamental vice like the 1st Respondent cannot be said to be qualified. He then urged this Court to resolve the 1st issue in favour of the Appellants.”

 

In response to the first issue, the Learned Counsel for the 1st and 2nd Respondents, Sam Kargbo Esq. submitted that the lower Tribunal was right in holding that the 1st Respondent was qualified to contest election into the Senate for the Kebbi North Senatorial District of the National Assembly of the Federal Republic of Nigeria. Furthermore, that “not qualified at the time of the election” under Section 145 (1) (a) of the Electoral Act means not qualified under Sections 65 and 66 of the 1999 Constitution of the Federal Republic of Nigeria. That contrary to the contention of the Appellants to establish a case under Section 145 (1) (a) of the Electoral Act, 2006, the Appellants must have pleaded and proved that at the time of the election, the 1st Respondent suffered one form of Constitutional disability or the other. This, he submitted that the Appellants failed to do.

 

He further contended that Sections 34, 36 and 38 of the Electoral Act 2006 relied upon by the Appellants cannot be interpreted to the effect that they have enlarged, added to or expanded Sections 65 and 66 of the Constitution. That once the qualification of the 1st Respondent under Section 65 of the Constitution is not in issue, the only other provision relevant to the determination of whether or not the 1st Respondent was qualified to contest the election are the clear wordings of Section 66 of the Constitution to which Section 65 is subject to. That apart from Sections 65 and 66 of the Constitution, no provision of the Electoral Act can introduce a new set of criteria for qualification or disqualification. He cited and relied on the cases of INEC V. Musa (2003) 3 N.W.L.R. (Pt. 806) 72 and Attorney General Abia State V. Attorney Federation (2002) 6 N.W.L.R. (Pt. 763) 264. Also PDP V. Haruna (2004) 16 N.W.L.R. (Pt. 900) 597.

 

Learned Counsel submitted further that the matters complained about by the Appellants are pre-election matters which by the provision of Section 32 of the Electoral Act 2006 ought to have been challenged at the High Court or Federal High Court. He relies on the case of Amaechi V. INEC (2008) 5 N.W.L.R. (Pt. 1080) 227. He further contended that if at all the Appellants were to establish an action on the basis of non – compliance with Section 34, 36 and 38 of the Electoral Act, then they should have come under or hinged their complaints on Section 145 (1) (b) and not under Section 145 (1) (a). Furthermore, that when Sections 65, 66 and 285 (2) of the Constitution of the Federal Republic of Nigeria are read together with Section 145 (1) of the Electoral Act, 2006 it would be seen that the 1st Respondent was qualified to contest the election.

 

It was the further submission of the Learned Counsel for the Respondents that averments and the allegations in the petition concern nomination, withdrawal and substitution of candidates which are matters between a political party and its members and they do not constitute any of the bars itemised in Section 66 of the Constitution. He relies on Alliance for Democracy V. Fayose & Ors (2005) 10 N.W.L.R. (Pt. 932) 151 at 187.

 

Furthermore, Learned Counsel submitted that there is no scintilla of evidence adduced at the trial in support of the pleadings and that the address of Counsel does not amount to evidence. He relies on the case of Jimoh Adukoya Odubeko V. Victor Oladipo Fowler & Anor (1993) 7 N.W.L.R. (Pt. 308) 637.

 

On issue of the Exhibits tendered before the lower Tribunal, Learned Counsel submitted that it is wrong for the appellants to think that all that was required of them to prove their case was just to tender Exhibits P 1 – P 5. That admissibility of Exhibits P 1 – P 5 is one thing and their cogency or probative value is another thing. He urged us to hold that the lower Tribunal was quite right in holding that in the context of the issues in controversy between the parties, the Exhibits did not prove the case of the Appellants but rather reinforced the case of the Respondents. He cited the cases of Raphael Udenze & Ors V. Paul Chidebe & Ors (1990) 1 N.W.L.R. (Pt. 125) 141, Frida U. Abalogu V. Shell Petroleum Dev. Company (Nigeria) Limited (1999) 8 N.W.L.R. (Pt. 613) 12. He then concluded that Exhibits P 1 – 3 clearly proved that the 1st Respondent was a member of the 2nd Respondent and was sponsored by the 2nd Respondent and that there was no evidence to contradict what those Exhibits convey. He then urged this Court to resolve this issue in favour of the 1st and 2nd Respondents.

 

In resolving the issue, here is what the Court of Appeal said:

 

“The main and only grouse of the Appellants in their first issue is that the first Respondent was not qualified to contest election into the Kebbi North Senatorial District of the National Assembly of the Federal Republic of Nigeria in an election held on April 21st, 2007. The arguments for and against this issue are well stated above. In any election year, before any person decides to put forward himself for nomination to contest an election into any office whatsoever, he has to ask himself one searching question and that is “Am I qualified to contest the election?” To get an answer, he has to consult the relevant laws to satisfy him that he has the requisite qualification to contest the election before putting forward himself to seek his party’s nomination to contest the election. And as regards an election into the Senate of the Federal Republic of Nigeria, it is only the Constitution of the Federal Republic of Nigeria 1999 which makes provision for the qualification and / or disqualification of a person seeking to contest for that office. Both the Learned Senior Counsel for the appellants and Learned Counsel for the 1st and 2nd Respondents agree that issue of qualification or otherwise are contained in section 65 and 66 of the 1999 Constitution. They also agree that the Electoral Act, 2006 does make specific provision for the qualification or disqualification of any candidate. Both Counsel however part ways when it comes to whether sections 34, 36 and 38 of the Electoral Act, 2006 are part of qualification and disqualification provisions or that these sections address other matters apart from qualification. Whereas the Learned Senior Counsel for the Appellants opine that a candidate must satisfy both the constitutional and statutory requirements before he is said to have been qualified, the Learned Counsel for the Respondents strongly feels that issue of nomination and substitution are distinct from issue of qualification.

 

As I said earlier, conditions relating to qualification and disqualification are provided for in Sections 65 and 66 of the 1999 Constitution respectively. Section 65 thereof provides:-

 

“65 (1) Subject to the provisions of Section 66 of this Constitution a person shall be qualified for election as a member of-

 

(a) The Senate if he is a citizen of Nigeria and has attained the age of thirty five years and

 

(b) …

 

(2) A person shall be qualified for election under subsection (1) of this section if

 

(a) He has been educated up to at least school certificate level or its equivalent and

 

(b) He is a member of a political party and is sponsored by that party.

 

Section 66 is a bit lengthy and I do not intend to reproduce it here. No other statute, not even the Electoral Act has any provision for qualification or otherwise to contest election into the Senate of the Federal Republic of Nigeria. I mean qualification, simpliciter. Needless to reiterate the axiomatic fact that by virtue of Section 1 (i) of the 1999 Constitution, the provisions of the Constitution are superior to every provision made in any Act or law and are binding on and must be observed and respected by all persons and authorities in Nigeria. All other legislations, as it were, take their hierarchy from the provision of the Constitution. It is significant that both Counsel have agreed that the Electoral Act 2006 or any other legislation for that matter cannot re-enact, abridge, modify, expand, amend or even explain the extant and express provisions of Sections 65 and 66 of the 1999 Constitution as to qualification and disqualification of any person to be elected into the Senate of the Federal Republic of Nigeria. See Attorney General, Abia State V. Attorney General, Federation (2002) 6 N.W.L.R. (Pt. 763) 264.

 

It is well settled that 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 conditions in any way directly or indirectly, unless the Constitution itself as an attribute of its supremacy expressly so authorises. See INEC V. Musa (2003) 3 N.W.L.R. (Pt. 806) 72 at 157 paragraph D – G.

 

The Learned Senior Counsel for the Appellants had argued that even though the 1st Respondent was constitutionally qualified to contest the election and that even though he was not in any way disqualified under section 66 of the Constitution, his alleged non compliance with section 34, 36 and 38 of the Electoral Act had disqualified the 1st Respondent from contesting the election. Learned Counsel for the 1st and 2nd Respondent thinks otherwise.

 

Now, what is the relationship between sections 65 and 66 of the 1999 Constitution on one hand and sections 34, 36 and 38 of the Electoral Act 2006 on the other hand?

 

I had already set out the sections of the Constitution concerned and I intend to also bring to the fore the relevant sections of the Electoral Act for ease of reference as follows:-

 

“Section 34 (1) A Political Party intending to change any of its candidate for any election shall inform the Commission of such change in writing not later than 60 days to the election.

 

(2) Any application made pursuant to subsection (1) of this section shall give consent and unfavorably reasons.

 

(3) Except in the case of death, there shall be no substitution or replacement of any candidate whatsoever after the date referred to in subsection (1) of this section.

 

36 (1) A candidate may withdraw his candidature by notice in writing signed by him and delivered by himself to the Political Party that nominated him for the election and the Political Party shall convey such withdrawal to the Commission and which shall only be allowed not later than 70 days to the election.

 

(2) Where the Commission is satisfied that a candidate has withdrawn as provided in subsection (1) of this section, his political party shall be allowed to nominate another candidate not later than 60 days before the date of the election.

 

38. Where a candidate knowingly allows himself to be nominated by more than one political party and or in more than one Constituency, his nomination shall be void.”

 

There is no doubt that sections 34, 36 and 38 of the Electoral Act 2006 provide for issues of nomination, withdrawal and substitution of candidate by political parties in an election. It is a cardinal principle of interpretation of statute that where the words used in the legislation are clear and unambiguous, the court should give it its ordinary meaning. See C.B.N V. Adedeji (2004) 13 N.W.L.R. (Pt. 890) 226 Ndoma – Egba V. Chuk wuegor (2004) 6 N.W.L.R. (Pt5. 869) 382; Egbe V. Belgore (2004) 8 N.W.L.R. (Pt. 875) 336.

 

The provisions in sections 34, 36 and 38 of the Electoral Act are very clear and need no splitting of hair as to what meaning they convey. At least nobody has said that they are ambiguous. The Lower Tribunal has this to say in its judgment regarding those sections:-

 

“No matter the interpretation placed on sections 34, 36 and 38 of the Electoral Act, they remain breaches of Electoral Act provided for in section 145 (1)(b) of the Electoral Act and can never be elevated to the status of making their transgression a matter of qualification under section 145 (1) (a) of the Electoral Act. See Attorney General Abia V. Attorney General Federation (Supra). As the Constitution has already made elaborate Provisions on qualification and disqualification in section 65 for persons seeking election into the National Assembly noting in our view can be read into these provisions of the Constitution to include the issue of double nomination expressly provided for in section 36 and 38 of the Act (Supra)”

 

See page 290 of the Record of Appeal.

 

I agree entirely with the Lower Tribunal on this issue. It is my strong view that sections 65 and 66 of the 1999 Constitution of Nigeria provide for qualification and or disqualification of a candidate seeking to contest election into the senate of the Federal Republic of Nigeria. I also strongly hold that apart from the Constitutional provisions for qualification and disqualification, no other law can add to, amend or even explain those constitutional provisions. Section 34, 36 and 38 of the Electoral Act are therefore procedural as to nomination, substitution and withdrawal of candidates by political parties. Therefore, whereas sections 65 and 66 of the 1999 Constitution of the Federal Republic of Nigeria state conditions for the qualification or disqualification of a candidate seeking election into to senate, sections 34, 36 and 38 of the Electoral Act regulate the nomination, substitution and withdrawal of candidates in the Election.

 

What I am trying to say, perhaps imperfectly, is that there is obviously a distinction between qualification and procedure for nomination albeit narrow. Qualification is a constitutional issue whereas nomination and/or substitution are issues regulated by the Electoral Act.

 

See PDP V. Haruna (2004) 16 N.W.L.R. (Pt. 900) 597.

 

The point where the issue of qualification under the constitution and the issues of nomination, withdrawal and substitution under the Electoral Act meet relate to the fact that although a person may be constitutionally qualified to contest election into the senate, if he does not satisfy the procedure for his placement on the ballot, even if he is elected, his election can be challenged in the appropriate Court or Tribunal for breach of the provision of the Act. And that brings me to section 145 of the Electoral Act, 2006. The section states:-

 

“145 (1) An election may be questioned on any of the following grounds, that is to say:

 

(a) That a person whose election is questioned was, at the time of the election, not qualified to contest the election;

 

(b) that the election was invalid by reason of corrupt practices or non compliance with the provisions of this Act,

 

(c) that the respondent was not duly elected by majority of lawful votes cast at the election or

 

(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.”

 

It was the contention of the Learned Senior Counsel for the Appellants in their brief that the Lower Tribunal misinterpreted section 145 (1) (a) of the Electoral Act as being limited to constitutional provision of qualification to be elected. That the subsection emcompasses the valid nomination to contest, failing which the election of the candidate wrongly nominated, will be liable to be nullified. With due respect, I find it difficult to pitch my tent with this argument. I rather hold the view that whenever a petitioner intends to ventilate his grievance on the ground that the Respondent was not qualified to contest election, it is under section 145 (1) (a) of the Electoral Act that the petition should be brought. Where however, the ground for questioning the election is on a breach to sections of the Electoral Act, it should be ventilated under section 145 (1) (b) of the said Act. Section 145 (1) (a) has to do with qualification whereas section 145 (a) (b) relates to non compliance with provisions of the Electoral Act. Since the complaint of the Appellants at the Lower Tribunal was on the basis of non – compliance with Section 34, 36 and 38 of the Electoral Act 2006, they ought to have come under section 145 (1) (b) and not section 145 (1) (a) of the Act.

 

The Learned Counsel for the 1st and 2nd Respondents had submitted that the matters complained about by the Appellants are pre – election matters which by the provision of section 32 of the Electoral Act, 2006 ought to have been challenged at the High Court or Federal High Court. It is not in doubt that issues relating to nomination, withdrawal and substitution are clearly pre -election matters and by Section 32 of the Electoral Act 2006, pre – election matters are to be ventilated either in the High Court of a State or Federal High Court. Election Tribunals are set up under Section 285 (1) of the 1999 Constitution and their jurisdiction is also prescribed by the same section. Nothing in that section suggests that pre – election matters relating to nomination, substitution or to withdrawal can be ventilated at the Election Tribunal. In the recent case of Charles Chinedo V. Independent National Electoral Commission & 2 ors, Suit No S.C. 208/2007 (unreported) delivered on 11th July, 2008, the Supreme Court per Tobi JSC, held on page 21 as follows:-

 

“It is not my understanding of section 225 (1) (a) of the Constitution that the sub – paragraph can accommodate pre – election matters. It is rather my understanding that the sub – paragraph provides for the determination whether any person has been validly elected as a member of the National Assembly. In my humble view, the sub – paragraph provides for election matters which give rise to post election and not pre – election proceedings. As the reliefs sought by the appellants are on pre – election matters, Section 285 (1) (a) could not avail him as that sub – paragraph does not provide for litigation arising from party primaries. And that was what this Court dealt with in Amaechi…”

 

See also Amaechi V. INEC (2008) 5 N.W.L.R. (Pt. 1080) 227 Ugwu V. Ararume (2007) 6 S.C. (Pt. 1) 88; (2007) 9 N.W.L.R. (Pt. 1038) 137.

 

The Learned Senior Counsel has placed reliance on the cases of Ararume and Ameachi (Supra). I think these two cases do not support the Appellants’ case. The two cases were commenced at the High Court and not before the Tribunal. Secondly the two cases are intra party disputes that were decided within the context of Section 34 (2) of the Electoral Act and the cases were instituted by persons directly affected by the action of their party which substituted them. This is not the case in the instant appeal.”

 

The same issue was canvassed and resolved in the same manner in the case of ERNEST NAMA BAMAIYI & ANOR V. HONOURABLE BALA NA-ALLAH & ORS (2008) LPELR-CA/K/EP/NA/41/2007, in which I also represented the 1st & 2nd Respondents. In fact, all the 2007 State Assembly and National Assembly elections in Kebbi State were contested by the ANPP and its candidates on the same issue and me, your humble one, represented the respondents at both the Tribunal and the Court of Appeal. Incidentally, I also represented the Appellant in Kakih v. Suswam from the Federal High Court in Makurdi to the Supreme Court. I can, therefore, without meaning to ingratiate myself, say that I have for a long time been grappling with issues of qualification and disqualification of candidates.

 

Ripples Nigeria…Nigerian Newspapers

 

Join the conversation

Opinions

Support Ripples Nigeria, hold up solutions journalism

Balanced, fearless journalism driven by data comes at huge financial costs.

As a media platform, we hold leadership accountable and will not trade the right to press freedom and free speech for a piece of cake.

If you like what we do, and are ready to uphold solutions journalism, kindly donate to the Ripples Nigeria cause.

Your support would help to ensure that citizens and institutions continue to have free access to credible and reliable information for societal development.

Donate Now