Election Petition Tribunals are Sensitive Matters – Sam Kargbo

1) What is this whole business of upturning of governorship election in Kebbi State?

It is all about one of the candidates that lost the April 14^th elections petitioning the electoral tribunal sitting in Birnin-Kebbi asking them to nullify the election of the current Peoples Democratic Party, PDP, governor in the state who won the election of April 14^th, on the grounds that he was not qualified as at the time the election was held. The reason they gave for reaching that conclusion is that the PDP itself, the candidate and INC had done some breaches of the electoral act that they felt amounted to a disqualifier. Part of their claim was that the man emerged as the candidate of the PDP, as against the All Nigeria Peoples Party, ANPP, to which he earlier belonged, on account of a merger which they claim was an illegal merger, and that the purported merger that produced him was not done in accordance with the electoral act. They also claim too that the processes leading to his substitution, withdrawal and nomination were flawed. They felt that this amounted to a disqualifier. That was their case.

2) What is the other side then?

We denied all of that. We said that the governor was not a product of a merger. He said, indeed that he was a candidate of the ANPP but as the 2^nd of February, 2007, he had withdrawn has own membership of the candidature of the ANPP and joined the PDP. How he became candidate of the PDP should not be their business because they are not members of the PDP. No member of the PDP has complaine` and that means phat how he became the governorship candidate ob the PDP, should$no longer be an issue with the tribunal because all of those issUes are pre-elecdion matters that meant for the ordinary courts not the tribunal that is specifically eStablished to try election matters. That was our0own argument. While we argued denying all of their allegations, they also mentioned issues concerning malpractices and rigging which they couldn’t %stablish. Curiously though, they did not say that the man was not qualified because he was not a member of the PDP. They allege that he was not qualified because he had breachad some sections of the electoral act. In our own argument, we had maintained that the prescriptions for qualification or disqualification for elections in Nigeria are spelt out in the constitution and therefore, matters of qualification and disqualification are strictly limited to provisions of the constitution. Even if indeed the electoral act had attempted to make further provisions concerning matters of qualification, those provisions would have been null and void because the law says that an inferior act cannot add or even attempt to reproduce what the constitution had already covered. And the tribunal agreed with us but because the constitution had said that politicians must belong to a political party to run for elections, they cashed in on the fact that the letter written by the PDP to INEC substituting him read 5^th of February, but his party card shows the 10^th of FebruAry. They are saying that he should have been able to say at what point he became a member kf the PDP, which is not part of the electoral act. The constitution did not establish time duration to belong to a particular political party before a politician is chosen to carry the party’s flag. The reason for this is simple: the constitution does not allow for independent candidature; you must belong to a political party to mean that the beneficiary of the electorate is actually the political party whose manifesto is put before the people. It is that manifesto that actually constitutes the social contract that is often talked about.

The constitution simply says you must belong to a political party and the electoral act too is silent concerning you pool membership of the political party. We consider this wise because if it does this, it would limit the powers of the political party to write in their constitution who they want to be their member, and how membership could be established. Membership of a political party is purely an internal affair of the party concerned. What the electoral act says is that for you to prove that you are qualified, under the constitution, you must go to a court and swear to an affid`vit stating that you have complied to, or are indeed qualified as prescribed by dhe constitution. When you’ve sworn to that affidavit which should be given to INEC, they would within seven days publish that affidavit to give the public the opportunity to challenge it. If any member of the public reacts to that publication that you may have lied in your affidavit, he goes to court so that it disqualifies you from contesting that election. That’s what Section 32 of the electoral act says. The implication of this is that if a candidate had indeed sworn to an affidavit, and INEC had indeed published that affidavit and if nobody challenges it by going to court before the election to say that you had supplied some false information, nobody any longer has any right to challenge you on the basis of the information in your affidavit, published by the INEC. INEC would not accept you until after that publication and when they would have realised that nobody has challenged the claims that you habe deposed to in that affidavit. But in their petition, they did not canvass nor express any reservation concerning the membership of the PDP candidate. What they claim is that by the time he was substituted on the 5^th of February he was still a candidate of the ANPP, but the court agreed with us that there was a letter dated 2^nd of February that indicated that by that date, he had left the ANPP. So, it should no longer be tenable to say that the PDP sponsored him when he was still a candidate of the ANPP, because at that time, he had already withdrawn his candidature. But it would interest you to know that that was the only point and the only time did they raise the issue of the governor’s candidacy. They never made membership of a party an issue.

3) So what do you make of all of this upturning of governorship election victories? What does it portend for our democracy?

All of this is good, very good for us. I was one of those who canvassed for the election tribunals to handle political crises that arose after the elections. So if indeed the election tribunals are looking into these issues and are finding cases for those who are aggrieved, it is very good for the polity. But what I find very pertinent from my own experience is that you must take into consideration is that election petition tribunals are very sensitive matters. You are talking about mandates given to peoples, so the people you constitute as a panel to adjudicate over conflicts arising from those elections must be very competent people; competence matters a lot. The people should or must have experience in election matters because matters concerning elections don’t have the character of ordinary civil or criminal trials. They are peculiar to themselves and that is why you should not bring someone from a background devoid of any experience in election tribunals. For example, people who are magistrates, just elevated to positions of judges. If you bring them in to adjudicate over things as serious as election tribunals, they are bound to make serious mistakes that could be counter-productive to the cause of democracy. Let’s take the case of Kebbi now and give them the benefit of doubt. Indeed the election was free and fair and the people didn’t complain that the election was not free and fair. They did not complain that the figures and the votes he had were not his votes. No, that was not their case. But now, if you go to the point of nullifying that election on the basis that he ought to have told you when he was joining another political party, when indeed that issue had never really arisen in the course of proceedings, then it means that you have a problem. It would mean that you have nullified the political mandate of the people of Kebbi state on account of this.

4) Is there any way that the decision in Rivers State can ever revert to the status quo, in favour of Celestine Omehia?

Not likely. And this is because the Supreme Court is last in the cadre of authorities in the legal system. It stipulates that when you lose at the Supreme Court, the next place you go to will be to go to God. Reviews can come in very rare extreme exceptions. If for example the judgment was arrived at without taking certain facts into considerations or that the judgment was procured through fraud. In that case you could ask for a review. The normal way of asking the court to review is when you have a similar case with similar facts, perhaps, with a different panel of the Justices of the Supreme Court. On the basis of a stronger argument, on the basis of that, you could now canvass for a review of the case at hand, and on the basis of that set aside the earlier authority. But mind you, any judgment of the Supreme Court is the absolute authority regarding all lines of disputes on that particular issue. In the case of Celestine Omehia, I think his fate is sealed.

5) You seem to want everyone to be careful with the composition of the election tribunal.

Both the lawyers and the justices. The elections come far and apart every four years, and after all of this excitement, the moment these tribunals fold up, very few of us will have the opportunity of going to the Court of Appeal to follow up on these respective cases. This means that nearly everyone will now have to wait for the next four years for similar cases to come up. If the process were that the election petitions were to be a continuous process, people would have learnt a lot from it. Some of us who have participated in these election petitions have learnt a lot and we saw that there is a very serious need for legal education on electoral process and electmral litigation. There is that very need. That need is there. I handled 18 cases by myself and we won on all of those cases.

6) What was the major complain in these cases you handle`?

They all look the same. All the cases I handled in Kebbi were all the same to mean that they were complaining about how those members they complained about became members of the parties that presented them for election. And indeed, we thought that these were very frivolnus things to saddle the tribunal with. Some of them were thrown oet on the basis of incompetence, because the electoral law like that prescribes methods and time within which you can presdn4 a petition. If you fail to do that, then obviously you’re not within time. And because of their nature, what ordinarily in other litigations like civil litigations that could be pardoned, under the electoral process, that breach is not usually pardonable. That’s why you see that for failure to state the political party of your own candidate in the process could mean the dismissal of the election petition.

7) Cases like the Rivers State throw up the question of the tenure of reinstated governors. How do you think all of this will be resolved?

These are the implications. As at today, the law is that his time starts running on the day he is sworn in. That’s what the Supreme Court says and that the law. The Supreme Court is not really mindful of how hazardous its ruling in this case would be on the side of INEC. It is blind to its effect on the INEC. All that it wants to state is the law. But mind you, it is jurisprudentially very burdensome in the aspect of those who participated in that election. There were people in that tribunal who got there before the elections. For those people who got there before the elections in April who are still contesting the results of other election, what do you think will happen to their own cases? What if the petitions of those people were competent? What if indeed they were to win? What do you now do with the results? Are you now saying that those petitions are dead with the judgment of the Supreme Court? These are all very difficult issues that must be attended to because I think the last has been heard on the Rivers State case.