Learn from Jonathan, Fayemi, Judge advises politicians

GovernorIdris Wada of Kogi State and the Deputy Governorship Candidate of the All Progressives Congress, APC, James Faleke, yesterday, lost their bid to stop the  Independent National Electoral Commission, INEC, from conducting today’s supplementary election  in the state. They failed to persuade the Federal High Court sitting in Abuja to declare the make-up polls as illegal, unconstitutional and ultra vires the powers of the electoral body.

Whereas Wada, who is the flag-bearer of the Peoples Democratic Party, PDP,  contended that being the surviving candidate with the majority of lawful votes cast at the initial election held on November 21, he  ought to have been declared and returned by the INEC as the winner of the election having secured not less than one-quarter of the votes cast in two-thirds of all the local councils of the State.

Faleke on the other hand, while insisting that INEC goofed when it declared the November 21 election inconclusive,  prayed the court to not only abort the planned supplementary polls, but to also declare that going by the totality of the results already declared  by INEC, he ought to be declared the governor-elect.

Faleke argued that results INEC announced after the election clearly produced him as the Deputy-Governor elect of Kogi State, saying with the death of his principal, Prince Audu Abubakar, he ought to have inherited all the votes owing to the fact that he shared a joint ticket with the late Audu.

The court ruling

However, in its ruling yesterday, the court declined jurisdiction to determine the merit of both Wada and Faleke’s suits. Specifically, Justice Gabriel Kolawole, dismissed five separate suits that sought to stop today’s supplementary governorship election. While refusing to  resolve any of the constitutional issues that were raised in the five suits, Justice Kolawole stressed that Section 285(1) of the 1999 Constitution and Section 87(10) of the Electoral Act, as amended, de-limited the jurisdiction of the Federal High Court to grant all the reliefs the plaintiffs sought.

Faleke

Noting that the legal actions were precipitated by the governorship election held in Kogi State on November 21, Justice Kolawole,  directed all the plaintiffs to go and ventilate their grievances before the Election Petition Tribunal. He described all the issues that were canvassed in the various suits as “post election matters”, which he said could be effectively decided by the Governorship Election Petition Panel that will be duly constituted by the President of  the Court of Appeal.

Justice Kolawole held that though the Federal High Court has the power to interpret the provisions of both  the Constitution and the Electoral Act, delving into the Kogi matter, which Section  285(2) of the constitution has given the Election Tribunal the powers to handle, “will amount to embarking on a mere judicial exercise.” The court said it would neither affirm that INEC acted rightly when it declared the November 21 election inconclusive, nor confirm the validity of the supplementary election taking place today.

“To proceed to affirm or otherwise  the 1st defendant’s (INEC) decision will be nothing short of exercising jurisdiction, which this court does not have under section 87(10) of the Electoral Act. “Once electorates have gone to the polls, whatever happens thereafter can only be entertained by the tribunal which have the powers to hear petitions by candidates or political parties that sponsored them”, the Judge held.

He said the danger in allowing the Federal High court to interfere in an electoral dispute where virtually most of the results have b een announced, will occasion the situation where “bad losers in an election” will quickly rush to court  before the conclusion of the  process,  to seek declarative and injunctive relieves.

Learn from Jonathan, Fayemi, Judge advises politicians

The judge urged politicians to learn from former President Goodluck Jonathan and erstwhile Governor of Ekiti State, Kayode Fayemi, who he said were exemplary  political characters. Besides, Justice Kolawole took an indirect swipe at the Attorney General of the Federation and Minister of Justice, Mr. Abubakar Malami, SAN, for giving “a partisan or otherwise legal opinion in a contest that is not exclusively an APC affair, but involves multiple political parties”.

The judge observed that the opinion the AGF expressed at a public forum concerning the Kogi matter, probably informed INEC’s decision to allow APC to substitute its late governorship candidate, a development he said culminated into the flurry of suits that were lodged before the High Court. Justice Kolawole however acknowledged that under Section 150(1) of the 1999 constitution, as amended, the AGF, can be called upon as the Chief legal adviser of the Federation, to give clear legal directions to agencies of the Federal Government.

“I am not in doubt that all the issues of law and facts that were raised before this court can be canvassed before the governorship election petition tribunal. I have no doubt that all the legal issues are such that the tribunal has jurisdiction to entertain. This judgement shall not operate before the election tribunal as res-judicata as this court has not decided any of the suits on the merit.

Though the court as the judicial arm of government, has a duty to not only uphold and protect the constitution, but to avoid decisions which will undermine or endanger the democratically laid down electoral process. “The process, no matter how imperfect or faulty it may be, is the only means by which any citizen who is aspiring for an elective office can assume governmental power.

“Court has power to assume jurisdiction in a way and manner that will assist the system to run its full course. The laws have made provision for an election tribunal, which is an alternative forum where disenfranchised candidates can go to ventilate their grievances. “Let me state it again lest I be misunderstood, this court has not in this matter, taken a position similar to that of the Biblical Pontius Pilate, the governor of the Jews who washed his hands off the blood of the innocent.

“Where the court has jurisdiction, I am confident that the arms of the law is not too short for it to make the necessary declaratory orders. However, the court will only do so within the parameters of its statutory and constitutional powers.

“The plaintiffs’ course of action is within the event of the Kogi state election of November 21, which is not cognizable by the Federal High Court under section 285(1) of the constitution and section 87(10) of the Electoral Act. “With all I have said, the four suits are hereby struck out for lack of jurisdiction. There shall be no order as to cost”, Justice Kolawole added.

The court yesterday adopted the same reason and also struck out Faleke’s suit yesterday. Aside Wada and Faleke, the three other suits were lodged before the high court by the governorship candidate of the People for Democratic Change, PDC, in Kogi state, Hon. Emmanuel Daikwo, a legal practitioner, Mr. Johnson Usman, a House of Reps member for Ahiazu Ezinaehitte Mbaise Federal Constituency of Imo State,  Hon. Rafael Igbokwe and an electorate from Omala LGA in Abelijukolo Ife of Eche ward in Kogi state, Mr. Stephen Wada Omaye.

With the exception of Falake’s case, the court earlier consolidated the other four suits that were dismissed, yesterday.  The plaintiffs had upon consolidation of their suits, distilled out three issues they urged the court to determine. They prayed the court to go ahead and determine, “ Whether in view of Section 181 of the Constitution of the Federal Republic of Nigeria,1999 (as amended) INEC ought to conduct a fresh Governorship election in Kogi State.

As well as “ Whether having regard to the provisions of sections 31(1)(2)(4)(5)(6)(7) and (8), 33, 34, 36, 85 and 87 of the Electoral Act, 2010, as amended, as well as sections 178-181 of the constitution of the Federal Republic of Nigeria, as amended, INEC, can lawfully conduct a second/supplementary election into the office of Governor of Kogi state on December 5, 2015, or any other date at all let alone accepting the nomination/substitution by the APC of any candidate on the basis of votes computed and credited to the deceased candidate of the APC when the new or substitute candidate was not part of the original election.