•Why both parties are wrong
•The implications for the judiciary and the polity
BY JIDE AJANI, EDITOR, NORTHERN OPERATIONS
This report examines the arguments coming from the Action Congress of Nigeria, ACN, and the Peoples Democratic Party, PDP, over the amendment to Section 140(2) of the Electoral Act, 2010, as amended which seeks to enforce the direction of the judgment of the tribunal or courts regarding decisions on nullified election victories. The emerging dangers are hinged on a polity that is fast losing the values of honesty and openness.
They both have a case; but they also have cases to answer.
That the Action Congress of Nigeria, ACN, and the Peoples Democratic Party, PDP, are at each other’s throat may not be anything new.
However, both parties, this time, are crying double wolf at the amendment to the 2010 Electoral Act. Their reason is that while the former frowns at the amendment to Section 140 (2), the latter is saying all is well.
Section 140 (2) is the bone of contention but the entire Section 140 states: “140 (1) Subject to sub section (2) of this section, if the tribunal or the court, as the case may be, determines that a candidate who was returned as elected was not validly elected on any ground, the tribunal or the court shall nullify the election.
INEC Chairman, Prof Jega
“(2) Where an election tribunal or the court nullifies an election on the ground that the person who obtained the highest vote at the election was not qualified to contest the election, the tribunal or the court shall not declare the person with the second highest votes as elected but shall order a fresh election.
“(3) If the tribunal or the court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of the valid votes cast at the election the election, tribunal or the court, as the case may be, shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirements of the constitution and this Act.
“(4) Subject to the provisions of paragraph 53 (2) of this First Schedule to the Act, on the motion of a respondent in an election petition, the election tribunal or the court, as the case may be, may strike out an election petition on the ground that it is not in accordance with the provisions of this Act or the provisions of the First Schedule of this Act”.
Whereas the PDP is in full support of the amendment, the ACN is insisting that the amendment ties the hands of the tribunal and the courts.
They both have good reason to be angry and happy but the corollary is that both have something to hide which they are not telling.
For instance, PDP’s grouse with the ACN’s position is that getting victory through the law courts is not good for Nigeria’s democracy. That Ekiti, Osun and Edo States that have become ACN states were products of judicial awards. That Ondo State that is now being ruled by the Labour Party, LP, was also made possible through the law courts. That political parties should not perfect the art of getting victories through the courts at all times. That it should not become the norm for just five or seven persons to determine the fate of a state with millions of citizens and hundreds of thousands of voting members of the public.
Therefore, when the Speaker, House of Representatives, Dimeji Bankole, declared that the new provision of the Electoral Act is in the best interest of democracy at a PDP rally in Akure, Ondo State, he was speaking the mind of his party.
Bankole said the new law passed by the National Assembly “made what happened in Ondo State after the last election an impossibility again in Nigeria.
“We have passed a law and in the new Electoral Act, the Court has no power to send a sitting governor away because of irregularities in an election that brought him to office. The worst that could happen is a re-run and PDP will win again and again”.
True, why should just a handful of individuals pronounce electoral victory in an election where tens of thousands voted? But the PDP that is supporting the amendment knows that its ways are not straight.
Every turn of the road where the courts had declared a re-run election, the PDP had almost always won back the seat. The same thing happened in Ekiti State until the Appeal Court pronounced that even the re-run election was fraught with irregularities of gargantuan nature a la Ido-Osi.
It is for the particular example of Ekiti State that the ACN is insisting that declaring a re-run does not in any way solve the problem of rigging or electoral irregularities; that had the Appeal Court not been firm, the PDP would still have retained Ekiti State; that there is no sense in allowing any political party to rig at the polls or clinch victory through irregularities and still allow the party to participate in a re-run; that such a party would have consolidated even if it had spent just a month or two in power; and that there must be punishment for errant political parties and not reward as the amendment to Section 140 (2) seeks to do; and that every re-run had always been won by the ruling party.
Section 141, which states that “an election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election”, merely attempts to pooh-pooh a repeat of what happened in Rivers State where incumbent Governor Rotimi Amaechi became state governor without participating in an election.
In the light of allegations and counter allegations coming from both Chief Justice of the Federation, Katsina-Alu and Justice Salami, President of the Appeal Court, on who is supporting which party, the ACN and the PDP, know why they are pushing the positions they are pushing, using the law to get what is undesirable.
Simply put, both want justice through injustice.
Another contentious amendment was section 25 of the Act.
The Labour Party, LP, had gone to court to seek the nullification of the National Assembly’s amendment of Section 25 of the 2010 Electoral Act. That section of the Act compels INEC to hold the presidential election before the governorship election.
Upholding the LP’s contention, Justice Ibrahim Auta declared the amendment to the said section of the Act to be “illegal, unconstitutional, null and void”.
Section 25 (1) states that “Elections into the offices of the President and the Vice President, Governor and Deputy Governor of a state, and to the membership of the Senate and the House of Representatives and the House of Assembly of each state of the federation shall be held in the following order:
a) Senate and House of Representatives
b) Presidential election and
c) State house of assembly and governorship elections”.
Even this amendment was seen as the product of a series of horse trading between the leadership of the PDP and legislators.
Those who had argued against the provision are of the view that allowing a presidential election before governorship elections might create an unwanted band wagon effect. But that band wagon effect pre-supposes that the PDP would win out rightly and, therefore, the other parties may lose massively at the governorship polls.
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