Faleke’s House of Representatives’ ticket and Constitution, Electoral Act challenge
THE recent request by Lagos chapter of the People Democratic Party (PDP), in the House of Representative for James Faleke, who is now allegedly elected as the deputy governor of Kogi State to declare his place of voter’ registration or vacate his seat in the House of Representatives within seven days is compounding the outcome of the just concluded Kogi State gubernatorial election.
The governorship election is one that has brought an unimaginable challenge to the Constitution and Electoral Act raising posers whether our electoral process has actually reached anywhere near perfection.
It all started following the sudden death of the standard-bearer of the All Progressives Congress (APC), governorship candidate, Abubakar Audu at an inconclusive stage of the election he has already been perceived as winner. The situation left a void in both the Constitution and Electoral Act raising very serious legal debate that yet to abate.
Last week, Lagos State chapter of the People Democratic Party (PDP), in the House of Representative gave James Faleke, who is also a lawmaker representing Ikeja Federal Constituency, a seven day ultimatum to declare his present place of voter’s registration or vacate his seat in the House.
One of the reasons adduced is that, his continued present in the House while he still holds onto his mandate as the Deputy Governor of Kogi, is an indictment on the fairness, adherence to constitutionalism and the non-partisanship of the House leadership.
As a result of this unfolding scenario, some lawyers have stepped in to offer legal opinions on the position of the law in resolving the debacle.
Reacting to the issue, a senior advocate of Nigeria, (SAN), Norrison Quakers opined that all the hue and cry about Hon. Faleke resigning his appointment and giving up his seat in the House of Representatives is absolutely unnecessary. He justified this by referring to a constitutional requirement set out in Section 68 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and maintained that until he is adjudged to run foul of this provisions, he remains a member of the Legislative House.
“Two subsections of Section 68, which in my view, some persons might want to rely on are Section 68 (1)(d) & (f), which for ease of reference are hereunder set out:
68 (1) A member of the Senate or of the House of Representatives shall vacate his seat in the House of which he is a member if:
(d) He becomes President, Vice President, Governor, Deputy Governor or a Minister of the Government of the Federation or a Commissioner of a State or a Special Adviser.
(f) Without just cause he is absent from meeting of the House of which he is a member for a period amounting in the aggregate to more than one-third of the total number of days during which the House meets in any one year.
Even though there are other subsections in this Section in relation to cessation of office of a member of either of the Legislative House, none is applicable to Hon. Faleke.
“It is imperative to state that being a member of the Federal Legislature for Lagos State does not debar him from seeking to enforce the mandate given to him and the late gubernatorial candidate of the APC in the concluded governorship election of Kogi State”.
Quakers claimed that Faleke would be barred or advised to withdraw from holding office as a member of the House of Representative the very minute his quest for actualization of his mandate is given positive judicial expression and he becomes the Governor of Kogi State, as was the case when Hon. Aminu Tambuwal then Speaker of the House of Representatives in the course of Legislative proceedings, became Governor of Sokoto State.
Therefore, “it is my humble opinion that it is improper and legally impermissible for anyone to call on Hon. Faleke to resign his membership of the House of Representatives. He remains a member of the Legislative House until his judicial train for justice, comes to his desired destination”, Quakers concluded.
Contrary to this position, Lagos-based lawyer and human rights activist, Ebun-Olu Adegboruwa stated that Faleke was resident in Lagos and also registered there as a voter and presented himself as a representative of Ikeja Constituency one. He won and was sworn in.
“For him to be presented again as the deputy Governor of Kogi state he should have complied with section 12 and 13 of the Electoral Act because he cannot be a registered voter in Lagos State and at the same time in Kogi State. All he should have done is to transfer his polling unit in accordance with Section 13 which has already taken care of his desire to run for an election in another state. It stated thus: “That anyone who wish to transfer his polling unit must write and fill a form and attach the original voter card which he had obtained and then apply to be registered in the new desired constituency and polling unit of the state to the Resident Commissioner in that intended state and the electoral officer will check through the state’s electoral register and entered the name of the person and assign a constituency and polling unit to the person”.
“After this, the officer will write back to the state informing it of the transfer of such person to another state so as to delete such name from the register of the previous state”.
Adegboruwa said this is what Faleke should have done and what the law demands from him before he embarked on his election that qualified him as deputy governor of kogi State.
Therefore, that Faleke failed to follow these processes, he has no locus standi to go back to the House as representative of Ikeja Constituency One, in a state where his name should not be in the register of voters again if we should go by Section 13 of the Electoral Act.
He advised on the need for the law to be adhered to in this matter and cautioned stakeholders to set aside emotions and proffer legal solution without taken sides. “I believe all the players and the stakeholders in the Kogi issue must go back to the drawing board to get the position of the law in this crisis. Faleke cannot competently exercise the mandate conferred on him, neither can Yahaya Bello inherit the votes that were cast for a dead man, Abubakar Audu,” he said.
And on the conferment of the mandate on Bello to replace the Late Audu, he said ‘such decision is misleading and will not work, it is just a matter of time, it cannot stand’.
Adegboruwa also warned the APC stakeholders against the attitude of ‘winner must take all’ that seems to be the impression from recent happenings. “I think it is important that the APC, who has ‘change’ for us in this country must do so according to the law. The emerging scenario being witnessed in Kogi State is this attitude of, I must get there at all cost,” he said.
He also bemoans the manner in which the judiciary is being dragged to resolve electoral matters in recent times, noting that there should be limit to what the judiciary is allowed to intervene. “The purpose of an election will be defeated, if we allow the judiciary to continue interfering in the elections of leaders by the people. The purpose of the judiciary is to verify if an election complies substantially with the law”.
Corroborating the position of Adegboruwa is another senior advocate of Nigeria, Olu Daramola, who stated that, ‘having been elected as the Deputy Governor in Kogi State, Faleke has automatically lost his right of membership of the House of Representatives. And since he has even gone to the tribunal, it is not permitted by law that he should be in two places or lay claim on them’.
‘As far as INEC is concerned, its position is that Faleke still remains the elected Deputy Governor of Kogi State under APC’.
Daramola also added that with the way things are, Faleke is not qualified to be in the House again. ‘All he can do is to pursue his case vigorously, he may likely win the case’, he predicted.
Another lawyer and partner in Alao, Lambo & Co Chambers, Charles Lambo, claimed that PDP’s request is not tenable until Faleke voluntarily resigns to take up a new assignment.
“For now, Faleke still remains a representative of Ikeja Federal Constituency One. It is not possible for someone who did not participate in an election to be declared winner of same election. The whole scenario in Kogi would have been resolved if INEC had cancelled the primary election of the APC. Yaya Bello cannot take the oath of the late Audu, it is against the law and Electoral Act. The present arrangement in Kogi cannot stand”, he stated.