If INEC’s bias against particular leaders of the All Progressives Congress (APC) in Zamfara State was tacit in the build-up to the general election, but it grew into a full-blown hatred after the election.
In January 2019, INEC conveniently chose which order of courts of coordinate jurisdiction to adhere to regarding Zamfara APC primaries, and in March, 2019 the commission chose to make a convenient meaning out of the order of the Court of Appeal.
The electoral commission’s queer decision to suspend the presentation of certificates of return to the governor-elect and members-elect in Zamfara State without clear backing of the law or express order of the court is the pinnacle of injustice done to the elected members of the APC in the state.
The truth of the matter is that in the judgment, the court allowed the Appellants’ Appeal and set aside the judgment of the trial court, but did not make any positive consequential order that warranted INEC to take such a rash and unfair decision.
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For a supposedly independent and unbiased electoral umpire, INEC must to act on a letter written by counsel to the Appellants (Marafa and 140 others) Mr. Mike A.A Ozekhome, SAN dated 25th March, 2019 wherein he stated that “there is absolutely no legal basis for any of the APC candidates that allegedly emerged victorious from the said sham elections to be issued with any certificate of return”.
Issues of law of this nature are regulated by an Order of Court or Court of law and not by opinion of counsel via a mere letter from chambers.
Looking at the entire judgment of the Court of Appeal, there was neither a positive order made against our APC candidates in Zamfara State nor in favour of the Kabiru Marafa and co-travelers.
INEC was absolutely wrong to rely on Ozekhome’s speculative letter at post-election state after candidate contested and won elections. The only institution that is empowered to make a positive order in respect of this subject matter is the court of law; and no court of law have made or given an order to that effect.
Counsel to APC candidates in Zamfara State, Mahmud Magaji, SAN in a letter addressed to the INEC chairman put the whose issue into perspective and asked salient questions that ensnared INEC into a trap of complicity.
He wrote: “Assuming without conceding that the judgment of the court of Appeal had a positive Order, the Court of Appeal is not the final court of law in respect of this subject matter.
“Our clients reserved the right of Appeal on the said subject matter to the Supreme Court, which is the Apex Court of the land and you may wish to note that our clients have taken positive steps towards exercising their constitutional right of the appeal to the Supreme Court.
“The law is trite that, right of Appeal to the Supreme Court is constitutional and no Court or any person can take it away by mere letter, thus Section 223 (3) of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) provides as follows.
“233 (3) Subject to the provisions of subsequent (20) of this section, and appeal shall lie from the decisions of the Court of Appeal to the Supreme Court with the leave of the Court of Appeal or the Supreme Court.”
“Consequently, any reliance on the purported letter of the Appellants’ Counsel dated 25th March, 2019 will be highly prejudicial and injurious to the interest of our clients. Particularly, where there are two letter from both the appellant counsel and respondent counsel.”
The learned silk argued further that the only forum for challenging an election or otherwise the mandate of a successful candidate at the General Election is the Election Petition Tribunal/Court. Section 69 and 75 of the Electoral Act, 2010 (as amended) are very clear and unambiguous in this regard. The sections read:
“69. In an election to the office of the President or Governor whether or not contested and in ay contested election to any other elective office, the result shall be ascertained by counting the votes cast for each candidate and subject to the provisions section 133, 134 and 179 of the Constitution, the candidate that receives the highest number of votes shall be declared elected by the appropriate returning officer.
75 (1). A sealed Certificate of return at an election in a prescribed form shall be issued within 7 days to every candidate who has won an election under this Act Provided that where the Court of Appeal or Supreme Court being the final appellate court in any election petition as the case may be nullifies the certificate of return of any candidate, the Commission shall within 48hours after the receipt of the order of such court issue the successful candidate with a valid certificate of return.”
Mahmud Magaji, SAN further berated Ozekhome, saying it’s bad practice for Counsel to resort to letter writing, thus misleading a responsible organization like the Independent National Electoral Commission (INEC) by twisting facts.
“Our clients will definitely exercise their Constitutional right of appeal to the Supreme Court, what is apparent from the above provision of the Electoral Act, 2010 (as amended) is that if at the end, our clients’ appeal succeeds, there will be no need to start the process of issuing Certificates of Return afresh. The Commission always has at its disposal the option of issuing another certificate of return to whoever emerges victorious at the Supreme Court.
“We urge you and the entire Commission to discountenance the letter of Mr. Mike A.A Ozekhome, SAN dated 25th March, 2019 wherein there was no positive order at the court of appeal.”
Setting aside the order of of the lower court by Court of Appeal does not amount to nullification of the candidature of the elected APC members or making the appellant the winner of an election he did not participate in.
With the foregoing submissions and copious references from the constitution, the onus now lies on INEC to either abide by what the law says or what Ozekhome says.
Lawal Nuhu Alhaji, a lawyer, writes from Abuja.