MY THOUGHTS ON THE BAYELSA ELECTION PETITION TRIBUNAL’S JUDGMENT OF 17TH AUGUST 2020.

Whereas the judgment has gone on appeal, or at least, the Respondents have indicated interest to appeal the judgment, it is healthy to stay further discussions on the matter. However, for ACADEMIC PURPOSES, I shall make but a few comments.

The majority opinion that upheld the doctrine of estoppel by conduct against the 1st Respondent (INEC) is very unfortunate. The facts of the case disclosed that the Petitioner (ANDP) submitted the details of their candidates to the INEC. INEC wrote to them, disqualifying the deputy gubernatorial candidate on the ground that he was below the constitutional age of eligibility. The party substituted the candidate with another who was equally found ineligible for the same reason as the first. This time around, INEC informed the party that nomination window had been closed. The party wrote again to the INEC requesting that it should revisit its decision about excluding the party having submitted its nominations within the time provided. This time, INEC didn’t reply.

Any diligent person/body would have headed straight to the Court the moment INEC communicated its decision to exclude its candidates. Even if the political party wanted to seek further administrative remedy, it should be guided by a sense of duty such that if within a reasonable time, nothing positive turns out, the party would approach the court. That was not done.

If there is any inference to make from the silence of INEC following the request by ANDP for a revisit of its decision, it should be the presumption that INEC stood by its latest decision and not that it accepted the claims of the party. Perhaps, the tribunal, via its majority opinion stretched the issue in this manner so as to accept the proposition that the exclusion came to the knowledge of the petitioner on the Election Day after it discovered that its name and logo were missing on the ballot papers. The implication, as the tribunal held, is that the cause of action accrued from that moment. Consequently, it became a ground to invoke the jurisdiction of the tribunal under section 138(1)(d) of the Electoral Act 2010 as amended since the exclusion would be deemed to have happened on the election day.

The next issue which demands attention is whether section 138(1)(d) of the Electoral Act 2010 as amended is not in conflict with section 285(9)(14) of the 1999 Constitution as amended by the 4th Alteration Act. The tribunal, in its majority opinion attempted to distinguish unlawful exclusion from unlawful disqualification in the instant matter. It is submitted, with the greatest respect, that the distinction attempted to be made by the tribunal especially as it applied to the facts of this case can only pass as a distinction without a difference as would be shown soon. The constitutional provision in question stipulated events which would qualify as pre-election matters. There is no denying the fact that aside the interpretation offered in the majority opinion of the tribunal as to the facts of the instant case, the events accepted by all the parties to this petition as the facts of the case are apparently within the purview of section 285(14)(c) of the 1999 Constitution, hence, a pre-election matter. It is also important to point out that the constitutional provision in question did not use the language “unlawful exclusion”. Neither did the Electoral Act itemize the actions or events that would qualify as unlawful exclusion. Therefore, rather than making a sheer recourse to judicial authorities (without prejudice to the doctrine of judicial precedent) which had hitherto opined that unlawful exclusion could be either a pre-election or a post-election matter, without giving full consideration to the constitutional provision, the pertinent question to ask is, “outside the circumstances or events enumerated under section 285(14) of the 1999 Constitution as amended, is there any other way a political party/candidate can be unlawfully excluded from participating in an election?” Did section 285(14) of the Constitution cover all the possible events that can qualify as unlawful exclusion from participating in an election?

The subtle scenario that can be conceived in order to preserve the legality of section 138(1)(d) of the Electoral Act 2010 may be a situation whereby INEC has concluded every preparation and has issued positive notices to the concerned political parties, only for a political party to discover on the day of election that its name and logo are conspicuously missing on the ballot papers. Incidentally, this is the scenario that the majority opinion of the tribunal wants to foist on us!

It is submitted that even this scenario should qualify as a pre-election matter under section 285(14)(c) of the 1999 Constitution. This is because the printing of ballot papers must have been done before the Election Day. The political party in question getting notice of the exclusion on the Election Day should only touch on the accrual of cause of action for the purpose of counting 14 days stipulated by the Constitution. I, therefore, agree with the reasoning of Hon. Justice Muhammad Ibrahim Sirajo that section 138(1)(d) of the Electoral Act is in conflict with section 285(9)(14) of the Constitution as amended by the 4th Alteration Act. We can only wait on either the Court of Appeal or, the Supreme Court or both to make the pronouncement.

On the issue of whether INEC has the capacity to disqualify candidates in view of the express provision of the proviso to section 31(1) of the Electoral Act, I perfectly align with the approach adopted by Hon Justice Sirajo in placing the provision side by side with section 285(9)(14) of the Constitution which contemplated disqualifications from INEC. His Lordship’s conclusion is quite plausible! In any case, the legislature would need to harmonise the said provisions to ease off some burdens from the judiciary.

Finally, since the tribunal, by its majority opinion validated the petition under section 138(1)(d) of the Electoral Act, there was yet another hurdle it had to scale through and that was the requirement of locus standi. Section 137 of the Electoral Act provides that only a candidate in an election or a political party which participated in an election can present an election petition. The tribunal wittingly made a recourse to the case of ABUBAKAR V. YAR’ADUA (2008) NWLR (PT 1120) AT 70 wherein Election was defined as “a process spanning a period of time and comprises a series of actions from REGISTRATION OF VOTERS TO POLLING.” Hence, the petitioner, having participated in other electoral activities, was a competent petitioner. While I choose not to defer with His Lordships (at least not in this opinion) on the propriety of the application of this definition in the instant case, it is becoming worrisome the manner in which the scope of certain terms are expanded unnecessarily and in some other times, limited needlessly by the Courts.

Be that as it may, since the tribunal eventually nullified the ELECTION, the logical implication, from the interpretation it offered on what an ELECTION is, should be that every activity starting with the registration of voters up to polling activities has been nullified. It is simply a reversal to the status quo ante bellum. Perhaps, APC whose candidature was earlier this year tampered with by the Supreme Court should approach a High Court for interpretation and inclusion into the race; old things having passed away, all things have become new! And if we decide to extend the implication to voters registration centres in Bayelsa, maybe, even the PVCs used for the polls would stand useless. I doubt if the tribunal intended these ridiculous consequences!

In all, I agree with the dissenting opinion of Hon Justice Muhammad Ibrahim Sirajo.

G,C. EJIDE ESQ

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