A critical appraisal of the Supreme Court’s verdict in the Kogi State Governorship Election (2)

Posted by Davidson Obabueki | 14 October 2016 | 1,903 times

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The Constitution of the Federal Republic of Nigeria makes provisions no further regarding a case of the death of a governorship candidate after nomination at the primaries and, before the declaration of the election results.

It stifles reason why such an omission was never included nor contemplated by the legislators for if there is a law that regulates the demise or incapacitation of a governorship candidate at the nomination level to have another party primary for the purpose of nomination, and another that regulates a governor been replaced by the deputy governor upon the former’s death, after declaration of election results but before taking and subscribing the Oath of Allegiance and oath of office pursuant to Section 179 and 181 of the Constitution of the Federal Republic of Nigeria respectively, how could a median provision be avoided or not even contemplated?

The death of a governorship candidate before the declaration of results is no far different from death after nomination and death after declaration of results to have escaped the detailed particulars of the Constitution of Nigeria, let alone not been contemplated. The awfulness of this lacklustre gap is terribly shocking and could not have and did not give into the hands of the appellant the governorship status.

The appellant’s stance would have availed much had it the deceased died shortly after he was pronounced winner. He would have had the fortress of the law to nominate another candidate as Deputy Governor upon a simple majority votes of the House of Assembly of Kogi State, whilst he hops to the status of Governor and not even his party could have stopped him for the very fact that he is shielded by the law pursuant to Section 181 (1) of the Constitution of the Federal

Republic of Nigeria as amended in 2011.

The decision of the Supreme Court is indeed laudable. It is such to the extent that she did not give in to caprices and the bending sways of circumstances. The said Section 141 of the Electoral Act is to effect that; “a court or an election tribunal may not declare a candidate winner of an election if any such candidate has not fully participated in all the stages of the said election.”

From the onset Prince Audu Abubakar and James Faleke were made both Governor and Deputy-Governor representatives respectively of the All Progressives Congress. At the party primary, Prince Audu won the primary election whilst Mr. Yahaya Bello came as runner-up and it would not have been expected of the party to have allowed Faleke Governorship ticket since constitutionally, Prince Audu upon his victory at the primary would have personally nominated James Faleke which he did, as his Deputy as mandated by Section 187 (1) of the Constitution of the Federal Republic of Nigeria.

The very fact that Faleke did not go through the party procedure of becoming the governorship representative rather cherry-picked as deputy without any party struggles in a bid to certify the

constitutional linings of said Section 187 (1) CFRN “...for the governor to be deemed validly nominated, he must take with him an associate as deputy governor...”, he misfired the procedure to becoming a governorship candidate.

The details of Section 141 of the Electoral Act is aptly lucid simpliciter even as the Supreme Court has held. The said section only mandates appropriateness of procedures and adherence thereto and nothing more pretentious. In so much as the court has no jurisdiction to mandate a political party and lead her in the way and manner candidates are to be chosen, save in cases of contradictions with the constitution that directly affects the appellant’s right to contest, it cannot then be said that the Supreme Court burnt the bridges.

In this case, the appellant’s right to contest for the governorship position was not bereft off him had he returned back to the party for nomination to claim the governorship ticket but, obviously in tune with the party’s constitution the adoption of Yahaya Bello as the governorship candidate was the fulfilling of the procedures, the condition precedent to becoming a governor as stated in Section 141 of the Electoral Act. It is in such reasoning that the Supreme Court gave judgment in favour of the respondents (Yahaya Bello and his party APC).

The court indeed was devoid of the power to dictate and could not have decided for the appellant’s party as the law makes judges non-partisan in nature. Faleke in trying to gain from the roundabouts (court) after losing at the swings (party) eventually lost everything.

On the other hand, one cannot fully agree with the decision of the Supreme Court to forbid a person as winner who did not participate in all stages of an election. For the very fact that the appellant contested or even chosen as running mate with Audu were simply procedural stages before Audu’s death and as such the Supreme Court ought to have given bright-eyed view to the stages fulfilled albeit marginally by Faleke. The Supreme Court ought to have considered the fact that the votes gathered before Audu’s death was the combined votes of Faleke and Audu and as such, for that mere fact that he contributed squarely to gulping 240,873 votes for his party before Audu’s death would not have had Faleke's caution and cry thrown to the wind.

This point of view however consolidate its standing, I still could not have agreed less with the Apex court’s assertion that election won by a candidate is one won for the party as there existed an agency relationship between the candidate and principal (party). The appellant who was never adopted as party’s choice could not have stepped into Audu’s place having failed to meet the condition precedent, he marred his chances of returning back a soldier of fortune.

The appellant could have properly wore the dress of Audu if he did what Audu did. Did Faleke follow the procedure Audu complied with? Was he nominated as Governorship candidate for the party? Did the people vote him with the mind set as Governorship representative of APC? If

that was not done, then Faleke has not a moral or legal justification to take a position not merited. Similarly, had Faleke gone through his party for nomination and probably got the ticket, he would not have nurtured palps and made noises of pules.

The appellant would not have missed his golden chance as I call it as he probably may have been affected by the party factor. Had it been the constitution of Nigeria guaranteed an individual candidate right to contest without belonging to a political party, Faleke would simply have himself become the Governor but, Section 221 of the Constitution of the Federal Republic of Nigeria (CFRN) says otherwise. It insists that no one can contest or canvass for votes for any candidate at any election save he is sponsored by a political party and belongs to the said party.

It remains a great precedence in our legal annals the Faleke’s case even as the law contemplates growth as its foremost principle. It is trite to posit that her growth must be a conscious one assisted by a deliberate caution as legislators may not all the time have the garb to incorporate every bit resulting from the circumstances of man’s action, and so judicial precedence would not be a bad hat to filling the crevice.

There is an urgent need for the Nigerian legislators to be very pedantic with details as there is really no excuse for omissions that obviously can and could be avoided even in view of the constitution of the Ken Nnamani Electoral Reform Committee.

The said committee should take into consideration salient constitutional and electoral matters such as recommending to the National Assembly the right of an individual candidate to contest

elections in Nigeria without been sponsored by any political party.

Amongst other defects in the Act, to take cue from the Supreme Court verdict by remedying the crevasse that could not avail the appellant.

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Source: News Express

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