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Legal implications of Zamfara’s political imbroglio

By Lawrence Anyia
16 April 2019   |   3:49 am
The internal democracy and the anticipated victory of the All Peoples Congress (APC) in Zamfara State came under fire in a test of ambition and failure on the part of the party’s leadership to curb the crisis in the state chapter.

Attorney-General of the Federation, Abubakar Malami (SAN)

The internal democracy and the anticipated victory of the All Peoples Congress (APC) in Zamfara State came under fire in a test of ambition and failure on the part of the party’s leadership to curb the crisis in the state chapter.The trajectory of recent events can be traced back to the botched party congress of 2018 at the state level. State Governor Abdul’Aziz Yari was resolute in his desire for an affirmation during the State Congress in place of Primary Elections.

This met stiff opposition from a faction of the party in the state which was led by Kabiru Marafa; the Chairman of the Senate Committee on Petroleum (Downstream). True to his word and resolute in his stance, the State Party Congress could not hold as Governor Yari was bent on having an affirmation.Had Marafa’s incessant pleas to the Party leadership been heeded, the looming crisis would have been averted. Sadly, all his appeals to the party leadership fell on deaf ears. All attempts to hold the primaries at various instances failed, as there were constant clashes between the supporters of Governor Yari and Senator Marafa. 

THE TIPPING POINT
In the face of Marafa’s cries and the party’s failure to hold its congress, Governor Yari proceeded to submit a list of candidates to INEC, the commission however refused to act on the list as the time within which candidates should be presented to the Commission had passed in line with Section 31 of the Electoral Act, 2010 (as amended).This clumsy situation led to a multiplicity of suits. The Yari led faction went before the Zamfara State High Court, while the Marafa led faction represented by Chief Mike Ozeokhome (SAN) chose to go before the Abuja Division of the Federal High Court.Both suits went into trial and in a very strange twist of coincidence; both judgments were delivered on the same day; the 25th day of January, 2019.

THE QUAGMIRE
In a considered decision, the Federal High Court presided over by Hon. Justice Ijeoma Ojukwu held that the failure to conduct valid primary elections within the stipulated time was a fault of the APC and not INEC. Consequently, INEC was enjoined to refuse the list of candidates that had been submitted by Governor Yari.At about the same time this judgment was being read, the Zamfara State High Court in its own decision ordered INEC to accept Governor Yari’s list and field the candidates in the forth coming General Elections. A near simple situation that was ignored by the leadership of the Party opened the floodgates for the filing of appeals and counter-appeals at the Sokoto and Abuja divisions of the Court of Appeal, with legal practitioners and political commentators having a field day with personal opinions and interpretations of both judgments as well as the import of the political quagmire that has beclouded the state.

THE ATTORNEY GENERAL WEIGHS IN
In the wake of one of the Appeals before the Sokoto Division of the Court of Appeal being dismissed, the Attorney General of the Federation Abubakar Malami (SAN) wrote to INEC advising that the Commission should postpone the elections in Zamfara State. The Honourable Attorney General was of a view that the Commission could invoke Sections 38 and 39 of the Electoral Act 2010 (as amended) to enlarge the time for nomination and also for the general elections.

This Position was countered by the Marafa led group on the basis that the warring factions were already before the court of law and other political parties had concluded the nomination process. The commission refused the Attorney General’s advice and held that the Party did not have any valid candidates in the general elections as provided for by Section 87(9) of the Electoral Act 2010 (as amended).

RAY OF LIGHT?
The Abuja Division of the Court of Appeal dismissed the Appeal filed by the party challenging the decision of the Hon. Justice Ijeoma Ojukwu that the party did not conduct valid primaries in Zamfara State. This was upon an application by the party to withdraw the appeal.
A LITTLE TO THE RIGHT, A LITTLE TO THE LEFT

In dismissing the Appeal, the Court of Appeal, Abuja did not make a specific finding or direct as to what should become of the list of candidates submitted by Governor Yari. The court further held that a cross appeal partly succeeded and set aside the judgment of the trial court on grounds of jurisdiction.In light of the above both factions have been left to interprete this judgment as it suits them. The Judgment has ended up not straying too far right or too far left. The fate of the nominees submitted having not been determined and INEC still left without any judicial direction as to what to do.

ANOTHER RAY OF LIGHT?
Chief Mike Ozekhome (SAN) while holding fort for the Marafa led faction had approached the Sokoto Division of the Court of Appeal and prayed that the Judgment of the Zamfara State High Court be set aside. In its decision, the Court found and held that at best, there were attempts to hold primary elections in the State but the party did not and thus the list of the candidates was not valid, same not having been submitted to INEC by the national headquarters of the party.Their Lordships in setting aside the judgment further held that “This must be a hard and bitter lesson for all political parties, who will not follow the guidelines before them”.

WITHDRAWAL OF CERTIFICATES OF RETURN AND THE LAW
It was originally on the premise of the judgment of the Zamfara State High Court that INEC accepted the list of candidates submitted to it by the Yari faction. The said primaries having been voided, it remains that there were no valid elections in Zamafara State. This is in line with two of the most basic tenets of the legal profession, to wit; no legal right can arise from an illegality and you cannot place something on nothing and expect it to stand.

The Supreme Court of Nigeria has on multiple occasions had reason to reecho this position of the erudite jurist and Master of the Rolls, Lord Denning in U.A.C. v Macfoy (1962) A. C. 153 as follows;“If an act is void, then it is in law a nullity… it is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding, which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there, it will collapse”.

This has gotten judicial backing in cases such as Akpene v Barclays Bank of Nigeria & Anor (1977) LPELR 386 (SC), Osafile & Anor v Odi & Anor (1990) 5 SCNJ 118, Skenconsult (NIG) & Anor v Ukey, Godwin Sekondy (1980) 1 SC 6 @ 26, Okafor v Nweke (2007) 10 NWLR (Pt 1043) 521 etc. As a resultant effect, no certificate of return shall be issued to a person who participated in a so-called election that never took place in the eyes of the law, same having been predicated on a non-existent primaries election. Where a certificate of return has been issued to such an “imposter” in office, same should be withdrawn with haste as it was issued in error and at cross purpose with the provisions of our electoral laws.

At this juncture, it behooves on INEC once again to listen to the voice of the law and to withdraw any and all such certificate(s) of return that might have been issued in error.Going by the Spirit and letters of Section 87 (9) of the Electoral Act, no candidate from an invalid or non-existent primaries election may be included in the general elections. This provision reads “Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for the election shall not be included in the election for the particular position in issue”.

In this scenario that has played out, candidates have been erroneously included in the election for the particular positions in issue. The import of this provision of the Electoral Act and the Judgment of the Court of Appeal, Sokoto Division is that the APC’s candidates for election shall not be included in the election for the particular position in issue.

In the light of this erroneous but orchestrated inclusion in the election (now pronounced void), there is no justification to allow this people that have immerged from an irredeemably bad/defective process to remain in custody of their certificates of return, more so as they were never entitled to receive same in the first instance.

THE SUPREME COURT BECKONS
It is an open secret the Yari led faction have expressed their desire of lodging an appeal at the Supreme Court, they claim it is to get a better interpretation of the judgment of the Court of Appeal, Sokoto Division.The Supreme Court being the highest court of law in the land and also the final arbiter should really wade into this matter and give a proper direction to INEC.

Going by the 4th alteration of the 1999 Constitution of the Federal Republic of Nigeria, any appeal in a pre-election matter shall be determined within 60 days of the bringing of same. There is more than enough time for the determination of the appeal, well before the inauguration of the 9th Assembly at both state and national levels. This will still in no way foist hardship or injustice to the intending Appellants should the Certificates of Return be withdrawn pending a decision from the Supreme Court.
 •Anyia, former Chairman of the Nigerian Bar Association, Plateau State writes from Jos.

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