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MONDAY QUARTER-BACKING: On the Power or Lack Thereof - of INEC to Disqualify Candidates By Mobolaji E. Aluko, Ph.D.
Burtonsville, MD, USA Monday, March 12, 2007
Introduction
One of the most intriguing characters of the current political dispensation is none other than Professor Maurice Iwu, Chairman of INEC (Independent National Electoral Commission). The brimming confidence with which he makes pronouncements about Nigeria and his work at the INEC particularly his mantra about changing the "mindset" of Nigerians towards INEC and other Nigerian matters, not to talk of his academic and activist antecedents before getting the INEC job - is quite remarkable, more so when you are quite sure that he has an Aso-Rock-driven agenda which belies all of what he says.
Take the dissembling and maddening statement that he has made several times now that "it is only the Constitution that disqualifies candidates, not INEC." What the heck does that mean? Who writes to or tells the candidates that they will not be on the ballot is it "the Constitution" or INEC? For example, when the pair of Nigerian-born dual citizens New Democrats party Presidential and Vice-Presidential candidates Prof. Isa Odidi and Hon. Akeem Bello went before INEC on 23rd and 24th January, 2007 for screening, who but INEC officials told them they were disqualified based on their dual citizenship? Was it the "Constitution"? Odidi and Bello immediately proceeded to court. Now that on February 14, 2007, Justice A.I. Chikere of a Federal High Court in Abuja ruled (see http://www.nigerianmuse.com/important_documents/?u=Odidi_Bello_Dual_Citizenship_Judgement.htm ) that with respect to an existing 2004 appellate court decision "a person who is a citizen of Nigeria by birth cannot have such citizenship forfeited or become ineligible to contest election under any circumstance even where Section 65(1) in the present case Section 28 is read together with section 137 of 1999 Constitution", has the Constitution "reversed" itself?
Or when Prof. Iwu states authoritatively that AC gubernatorial candidate Dr. Ngige, once-and-intending-again-to-be-future Governor of Anambra State, was disqualified simply because he (Ngige) was NOT in the country when his nomination papers were submitted, or that he (Ngige) swore an affidavit in the US and not in Nigeria: Where the heck in the Nigerian Constitution or the Electoral Laws does it say that you MUST be in the country to submit your nomination, or that legally valid papers in the US are no longer valid in Nigeria?
After all, Section 32(2) of our Electoral law simply states that "an Affidavit sworn to by each candidate at the High Court of a State, indicating that he has fulfilled all the constitutional requirements for election into that office" should be submitted by each party. It says "the High Court of a State", and not "the High Court of a State inside Nigeria" so why can Ngige not swear an affidavit in a High Court of a State of Maryland, USA?
Let us leave the ridiculous for the sublime
The Kuewumi Ruling
On Wednesday, March 7, 2007 Justice Babs Kuewumi, sitting in a Federal High Court in Abuja, made a landmark ruling that the Independent National Electoral Commission (INEC) has no powers, under the law, to disqualify candidates already cleared by their political parties for the April 2007 general elections, while at the same time declaring that it was the duty of INEC to conduct a verification exercise on the names of candidates presented to it by political parties to ensure that the condition set in sections 66, 106,107,117 and 137 of the 1999 constitution for candidates contesting elections are complied with. The summary of the reliefs sought by the AC/Atiku Abubakar plaintiffs, and the reliefs granted and refused, are outlined in Table 1 below for our readers to CLEARLY read and understand.
The table is DEVOID of the spins either of the Action Congress/Atiku Campaign team, or of INEC's Iwu, who has been quoted as saying that the court only approved one out of the six reliefs sought, and that the Media was deliberately under-reporting that fact.
The table is also one lesson in understanding legal rulings and reliefs primarily that you cannot SIMPLY count the number of reliefs granted and say that one side won and the other side lost: you have to look in detail at the SUBSTANCE and CONSEQUENCES of the rulings.
These reliefs sought both INTERPRETATIONS of the Constitution as well as PREVENTION of certain actions. Courts NEVER wish to issue empty orders, and time caught up with those particular reliefs seeking prevention, and hence they were not granted. However, I can assure you that ALL the interpretations were as EXPECTED, INLCUDING the ones that were refused, because they allowed the Judge an opportunity to show BALANCE, and hence strengthen one hand or the other in an appeal process. In these political contests, INEC is by law SUPPOSED to be INDEPENDENT to the greatest extent humanly possible, and the Constitution/Electoral law ASSISTS it to be so. By the same token, the appropriate courts are expected to assist it in being SEEN to be independent to the greatest extent possible, knowing that INEC is composed of human beings who might have their biases or political leanings. That is why the courts are invoked as the final arbiter in matters where there is evidentiary controversy.
The Constitution/Electoral Act stipulates that political parties are FIRST given the option to verify and QUALIFY their candidates, which are then passed on to INEC for its own verification. INEC should then pass on the results of its own verifications back to the parties AND publish them to the world, whereupon the parties can either act upon them in one way or the other, but more importantly political opponents can GO TO COURT to challenge individual candidates, which courts can then rule one way or the other on their final qualification. In fact, the Electoral Law specifies PUNISHMENT for political parties submitting candidates not fulfilling the requirements - up to N500,000 quite stiff and hence not to be taken light. So why is INEC NOT choosing to fine such political parties? More importantly, why would that section exist if INEC is the one supposed to DISQUALIFY?
Here is Section 32 of the Electoral Law 2006: QUOTE
32. (1) Every political party shall not later than 120 days before the date appointed for a general election under the provisions of this Act, submit to the Commission in the prescribed forms the list of the candidates the Party proposes to sponsor at the elections. (2) The list shall be accompanied by an Affidavit sworn to by each candidate at the High Court of a State, indicating that he has fulfilled all the constitutional requirements for election into that office. (3) The Commission shall, within 7 days of the receipt of the personal particulars of the candidate, publish same in the constituency where the candidate intends to contest the election. (4) Any person who has reasonable grounds to believe that any information given by a candidate in the Affidavit is false may file a suit at the High Court of a State or Federal High Court against such person seeking a declaration that the information contained in the Affidavit is false. (5) If the Court determines that any of the information contained in the Affidavit is false the Court shall issue an Order disqualifying the candidate from contesting the election.
(6) A Political Party which presents to the Commission the name of a
candidate who does not meet the qualifications stipulated in this
section, shall be guilty of an offence and on conviction shall be liable
to a maximum fine of (7) Every political party shall not later than 14 days before the date appointed for a bye-election by the Commission submit the list of candidates from the party for the bye-election. UNQUOTE One does not know what can be clearer than in Section 32(5) on which Justice Kuewumi based his substantive judgement: " the Court shall issue an Order disqualifying the candidate from contesting the election " and no one else.
Now what does the Constitution say about the requirements to which an affidavit must be sworn? In the Constitution Sections mentioned in the ruling [in sections 66, 106,107,117 and 137], only ONE subsection each - Section 66(i), 107(i), 137(j) - has ANYTHING DIRECTLY to do with INEC, and that has to do with presenting "a forged certificate", by which we might expect to include birth certificates, educational certificates, etc.. Here is (for example) Section 137 of the 1999 Constitution: QUOTE
137. (1) A person shall not be qualified for election to the office of President if - (a) subject to the provisions of section 28 of this Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, he has made a declaration of allegiance to such other country; or (b) he has been elected to such office at any two previous elections; or (c) under the law in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind; or (d) he is under a sentence of death imposed by any competent court of law or tribunal in Nigeria or a sentence of imprisonment or fine for any offence involving dishonesty or fraud (by whatever name called) or for any other offence, imposed on him by any court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court or tribunal; or (e) within a period of less than ten years before the date of the election to the office of President he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of the contravention of the Code of Conduct; or (f) he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in Nigeria or any other country; or (g) being a person employed in the civil or public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days before the date of the election; or (h) he is a member of any secret society; or (i) he has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunals of Inquiry Law or any other law by the Federal or State Government which indictment has been accepted by the Federal or State Government, respectively; or (j) he has presented a forged certificate to the Independent National Electoral Commission. (2) Where in respect of any person who has been - (a) adjudged to be a lunatic; (b) declared to be of unsound mind; (c) sentenced to death or imprisonment; or (d) adjudged or declared bankrupt (e) any appeal against the decision is pending in any court of law in accordance with any law in force in Nigeria, subsection (1) of this section shall not apply during a period beginning from the date when such appeal is lodged and ending on the date when the appeal is finally determined or, as the case may be, the appeal lapses or is abandoned, whichever is earlier .
UNQUOTE A clear interpretation of these sections is that ONLY in the issue of certificates SUBMITTED TO INEC does INEC maybe as Prof. Maurice Iwu, not as INEC per se - have "locus standi" to GO TO COURT if it suspects forgery. Otherwise it supposedly being a free-and-fair umpire REQUIRES it to stand back because all the OTHER issues have been sworn to be CORRECT in an AFFIDAVIT. However, if a political OPPONENT successfully challenges he correctness of the affidavit in court, then the party pays a fine for that. If there is NO outside petition initiated in court by an opponent and successfully proven, and if there is petition initiated by an INEC official suspecting forgery and successfully proven, then qualification is automatic. It is as simple as that. INEC should not be seen or constitute itself into political opponency.
What Happened to the List of Indicted Politicians? On or about February 6, 2007, the Nuhu Ribadu-led Economic and Financial Crimes Commission (EFCC) circulated to the Presidency, to all the 50 political parties and to INEC a list of 135 politicians and civil servants allegedly considered either too corrupt or SUSPECTED to be too corrupt to pass muster the candidacy requirements of their political parties. Top among the names were Vice-President Atiku Abubakar, Lagos Governor Bola Tinubu, Abia Governor Orji Uzo Kalu, former Anambra Governor Dr. Chris Ngige, former Kogi Governor Abubakar Audu, present Kano Governor Ibrahim Shekarau, and so on. The EFCC urged the parties to re-consider these candidacies, bearing in mind the deadline requirements of INEC. That smear campaign in itself especially for those on which NO COURT JUDGEMENT whatsoever had been entered was libelous and unprecedented. The relevant section of the Constitution is Section 13 (1)(i) of the Constitution, which provides that: "A person shall not be qualified for election if he has been indicted for embezzlement or fraud by a judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunals of Inquiry Law or any other law by the Federal or State Government which indictment has been accepted by the Federal or State Government, respectively".
It says NOTHING about suspicion or opinion or all that inanity. Not done, the Presidency went ahead to constitute a six-person panel led by Solicitor-General Prof. I.A. Ayua to consider, within a period of just two days, 77 cases involving 84 of the said "indicted" persons, announcing by radio, TV and newspaper that they should appear before the panel in Abuja. Of this number, only 27 appeared physically. The Ayua Panel proceeded to drop or clear charges on 50 of the "indicted" politicans and maintained the indictment of the other 34. However, the Federal Executive Council under President Obasanjo's chairmanship, meeting on February 13, issued a "White Papermaintained the indictment of 37 of the politicians, cleared four of them completely - including the ANPP candidate Lanre Tejuosho contesting against the President's daughter in an Ogun State Senatorial seat - and referred the remaining 53 to law enforcement agencies for "further investigation." A summary of the above moves will be found in: That was where we were - until March 8 when INEC released its first OFFICIAL list of cleared Gubernatorial and State Assembly candidates, only for us to see some names like White- paper-indicted names like Ngige's (Anambara) and Okocha's (Delta) were OMITTED and hence disqualified, while others like Abubakar Audu (Kogi) and Ibrahim Bapetel (Adamawa) who were on the White Paper list were qualified. [Note: On March 9, the INEC website list URL http://www.inecnigeria.org/index.php?do=publication&cat_id=16&title=2007%20ELECTION%20CANDIDATES featured BOTH the Gubernatorial and State Assembly lists, but the latter list was pulled after the first day. However, the Gubernatorial list in PDF format (292.43 Kb in size) is UNREADABLE by this author, and declares "error opening file" upon attempt.] INEC's Iwu has since stated that it did not take into account the EFCC or White Paper report - but obviously leaves open the FEDERAL GAZETTING (to finally seal acceptance by federal or state government of Section 137(1)(i)) which could have followed - and may still follow - the White Paper report and which was deployed against Vice-President Abubakar Atiku to continue to attempt to disqualify him as a presidential candidate.
Epilogue: The Many Rulings Against the Presidency, and the Need to Put Cloture It has almost become trite to remark that Nigeria is once again in a dicey fork in history.
First, we understand that Prof. Iwu has returned to the courts to seek "clarification" on the recent judgement by the Kuewumi court that INEC does not have the powers to disqualify candidates. We trust that he shall get it abundantly more clearly from that court. Secondly, one is constrained to remark that in its almost bizarre venture to prevent Vice-President Alhaji Abubakar Atiku from running as a candidate first of his original PDP, and then of ANY PARTY including his adopted Action Congress (AC), the Presidency under Chief Olusegun Obasanjo has unleashed the awesome powers of the EFCC and INEC and his Federal Executive Council in less-than-salutary ways. In the process, it has has trampled on so many constitutional legalities that it has so far lost about 13 cases (See Table 2) and is almost certain to lose the two more coming up shortly, including the upcoming one on March 13 about once again determining the legality or otherwise of the Attorney-General Bayo-Ojo-led Administrative panel..
Frankly, I believe that it is time that this Presidency under President Obasanjo cut its losses and throw in the towel and acknowledge that, like the Third Term Agenda (TTA), this Stop Atiku Agenda (SAA) is also lost. Otherwise the consequences are too dire to be imagined and that cannot be good for the long-term health of the country. The country waits for March 15 when the presidential and National Assembly list of candidates is presented by INEC. I rest my case.
Mobolaji E. Aluko TABLE 1: Summary of The Ruling of Justice Kuewunmi of March 7, 2007
TABLE 2: The Many Cases Won by Atiku Abubakar/AC
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