This piece is meant to be a different perspective from an article written by Inibehe Effiong published here on SaharaReporters yesterday November 7, 2015 on the same issue. I must admit that the writer did a good job of analysis but in my opinion erred with regards to certain conclusions of law considering the totality of our electoral and case laws.
Just like the writer, I must issue a caveat that I am yet to read the text of the judgment, therefore, my legal opinion is based on what is already out there, which is the legal reason for nullifying the election of the incumbent Governor Darius Isyaku while declaring the runner-up Senator Aisha Jumai AlHassan the winner of the election.
According to a Premium Times report:
“The three-member tribunal held that Mr Ishaku was not validly nominated as candidate of the PDP and therefore did not qualify, from start, to contest the governorship election.
Specifically, the tribunal held that the governorship primaries purportedly conducted by the PDP in the statewas 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 news outfit further reported that:
“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 ofvote 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 said 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 Mr Ishaku through the purported election in Abuja was after the statutory stipulated time for party primaries had elapsed.
It held that since Mr 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 Mr Ishaku in the election saying “it is a waste’’ and declared the APC and its candidate, who came second, as the valid winner of the April 11 election.
Now let us examine this decision vis a vis the extant laws and available judicial authorities.
First of all, the relevant section of the 2010 Electoral Act as amended wrongly quoted by Premium Times and adopted by my learned friend Inibehe is actually Section 87, generally, and with particular reference to Section 87 (4) (b) (i) (ii) as opposed to Section 78 (b) (1) (2)
I agree with my learned friend Inibehe to the extent that this case is different in substance and form from Rotimi Amaechi’s case where the contention was who was duly nominated by the party. The issue with Taraba judgment is whether PDP complied with the law in nominating Darius Isyaku as its candidate. We can quickly throw the Amaechi’s comparison out the window.
The first question that comes to mind was ‘on what ground(s) was Darius election nullified and the second runner-up declared the winner”?
There are four grounds of Election Petition as stipulated by the Electoral Act at Section 138
(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.
(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election
Going by the ratio decidendi in this case, we can easily throw out grounds a, c, and d leaving us with ground b, non-compliance with Electoral Laws for nomination and conduct of primaries.
I totally disagree with Inibehe here that the issue of non-compliance goes to qualification/disqualification matter. The law specifically states non-compliance and qualification as different grounds with different consequences for each. Qualification is ground 1 (a) of section 138 while non-compliance is section 1 (b) of the same section, qualification is a matter of substantive law in essence, non-compliance is a violation of procedure.
Section 87 of the 2010 Electoral Acts as amended deals generally with the procedures for nomination and conduct of party primaries. But specifically as it relates to this case, it states at subsections 9 and 10 as follows:
“(9) Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue.
(10) Notwithstanding the provisions of the Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State, for redress”
It is clear from this provisions that the drafters of our laws intended to make failure to comply with the provision of the Act a pre-election issue. The provision stated that” the candidate shall not be included in the election” The erring party is not expected to participate in the election at all.
The question must then be asked, “what happens where INEC fails to comply with this provision and includes such candidate in the election?” Sub-section 10 took care of that, an aspirant whose interested is affected may apply to the Federal High Court of the State High Court to have the name removed.
Both INEC and APC failed in this regard, INEC acquiesce by including Darius Isyaku on the ballot and APC failed to challenge it in court before the election. Since equity will only aid the vigilant, APC slept on its right and as Justice Okwudifu Oputa of blessed memory would say, it “should be allowed to continue peacefully in its slumber deep”
I submit that it amount to judicial rascality and tyranny to introduce a “doctrine of wasted votes” when there is no lacunae in law and especially where the law has provided a remedy. Did PDP participate in the election yes, they certain did and was declared the winner. It is incongruous for the court to have held that PDP did not participate in the election in the eyes of the law because the law actually envisaged non-compliance with the procedure before the election and provided a remedy, where there was an election without compliance with the procedure a remedy is provided as well, but with a different standard.
This should take us to Section 139 of the Electoral Act, in buffering Section 138 (1) (b) it states as follows:
“(1) An Election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non-compliance did not affect substantially the result of the election”
So in the eyes of what law was the Tribunal talking about?
Belgore JSC stated in Buhari v Obasanjo  50 WRN 1 at p.178, that:
“The burden on petitioners to prove that non-compliance has not only taken place but has also substantially affected the result must be fulfilled. There must be clear evidence of non-compliance, then that non-compliance has substantially affected the election.”
Justice Ejiwunmi in the same case stated that “I have no doubt that the Learned Justice of the Tribunal rightly interpreted the provisions of section 135(1) of the (2002) Electoral Act. This in effect means that the onus lies on the appellants to establish first, substantialnon- compliance and secondly, that it did or could have affected the result of the election”.
The Electoral Act provided remedies pre and post elections for non-compliance with the provision of the law. The test of whether an election must be overturned for non-compliance which has been adopted in almost all the decided case under this Act is the “substantial compliance” test. Is the non-compliance so grave that it could have made the result of the election different? If yes, the election must be overturned, if no, the election remains valid.
This provision with regards to non-compliance of electoral laws has been with us forever, it was copied from the English Electoral Law, the Representation of the People Act of 1949 imported from a similar 1892 Act. The law founds its way into our Electoral Decree of 1977 (as a matter of fact, this issue came up in Awolowo v. Shagari) then into our 2002, 2006 and 2010 amendments.
The locus classicus case under the British system was Morgan v. Simpson. There are tons of cases relating to non-compliance, but there was never a case decided in relation to Section 139 (1) or similar provision in other jurisdictions where the election was nullified and the runner-up declared the winner, just because of non-compliance with electoral procedure. In some cases where substantial compliance is found or where it would affected the outcome of the election, the election was avoided all together and new elections were ordered.
Therefore, the law is settled in this regard.
We are yet to get it on any good authority that the Tribunal even bothered to examine the weight of the non-compliance and whether it would have affected the outcome of the election at all but instead went on a frolic of judicial activism.
APC had the opportunity to nullify the nomination Darius Isyaku before the election, but since it failed to do that, the standard of remedy available to it after the election had been conducted and concluded has changed. They now have the non-compliance rule where the purportedly erring party has won and its remedies to deal with. Then it is absurd that a representative of INEC, the body shouldered with the responsibility not to list the non-complying candidate on the ballot was the one before the court to testify to non-compliance. When did INEC realize that? Did they do the needful then? If not, why? His testimony should have been disregarded altogether as discredited.
If PDP out of impunity or whatever reason failed to comply with the Electoral laws in appointing its candidate in that election, the rule of law must still prevail. The grounds set out in the law for correcting such wrongs must be adhered to, not a resort to “judicial-legislation” You do not correct one aberration with another.
I hope the Court of Appeal will overturn that decision and the Supreme Court will uphold that of the Court of Appeal.
Ayo Turton is a US based Attorney.