26th November, 2015
By Daniel Onwe
This tragedy of the Kogi State election has opened a flood gate of interpretations and opinions on our laws regarding the way forward. On the 24th day of November, 2015, the Honorable Attorney-General of the Federation expressed his opinion. The said opinion is obviously shared by INEC as it ordered its subsequent line of action in line with the opinion, fixing a supplementary election for the 5th day of December, 2015. The said opinion is to the effect that upon the communal reading of section 221 of the 1999 Constitution and section 33 of the Electoral Act, the APC should substitute its Governorship candidate, and the substitute will inherit the votes scored by the late Abubakar Audu; and INEC should go ahead and conduct a supplementary election sequel to the earlier declared inconclusive election.
Apparently, this interpretation of our law makes for convenience. It would save the government and the political parties the humongous cost going through a fresh election. Also, it will save the wide majority of Kogites the stress of coming out again for a fresh election.
As sound as the reasoning behind this position may be, a number of issues still call for consideration. Firstly, the next governor of Kogi State will actually be determined by the supplementary election that will be conducted across only 91 polling units where elections were earlier cancelled. This means that the vast majority of Kogi people who voted in the substantive election will definitely be disenfranchised. Obviously, they are the majority of the people of Kogi State cast their votes for the late Abubakar Audu of APC at the last election. However, now that he is dead and gone, the people of Kogi may not so express their collective will in support of any substituting gubernatorial candidate. Therefore, it will be antithetical to the spirit of democracy for their votes to be arbitrarily accredited to any other person. That would amount to imposition of such a candidate on the people.
Section 221 of the Constitution has been interpreted to suggest that it is political parties, and not necessarily candidates, that the electorate cast their votes for. The said section provides as follows: No association, other than a political party, shall canvass for votes for any candidate at an election or contribute to the funds of any political party or the election expenses of any candidate at an election.
I stand to be corrected; the above provision clearly shows that votes at elections go to the candidate, and the political party only helps the candidate in canvassing for votes and election expenses. I cannot see how the said provision makes votes at an inconclusive election the proprietary right of a political party to the exclusion of the relevant candidate. Reference has often been made to the case of Amaechi v INEC 1 MJSC [email protected] 66 to argue that as a matter of settled law, it is for the political parties, and not necessarily for the candidates that the electorate cast their votes. Before I comment on Amaechi’s case, it would be germane to point out that it is not everything that a superior court says that has a binding precedence. The pronouncement of the court is divided into two, namely, ratio decidendi and the obita dictum. The ratio decidendi, according to the Black’s law dictionary 8th edition, means the principle or the rule of law on which a court’s decision is founded on. Obita dictum, also according to Black’s law dictionary, is a judicial comment made while delivering a judicial opinion, but one that is unnecessary to the decision in the case and therefore not precedential (although it may be considered persuasive). It is elementary law that it is only the ratio decidendi of a judgment of court that is a judicial precedent; in other words that has a binding effect. The obita dictum does not have a binding effect.
Again, the decision of a court would only have a binding effect if the facts of the case that gave rise to the decision are similar to the facts of the case at hand.
Now applying this to the issue in consideration, it means that we have to consider the ratio decidendi in Amaechi’s case on the one hand and on the other hand consider whether the facts in Amaechi’s case are similar to facts in case now in issue. In Amaechi’s case, the Supreme Court established that Amaechi had suffered injustice by being unduly substituted on the eve of an election. Amaechi’s prayer in that case was to be declared the Governorship candidate of the PDP. Meanwhile, by the time the matter came up for determination, the substantive election had been concluded and the purportedly elected governor sworn in. And in the words of the Supreme Court, Per Oguntade JSC:
“Am I now to say that although Amaechi has won his case, he should go home empty-handed because elections have been conducted into the office? That is not the way of the court”.
It was in the light of this fact and in a bid to give relief to Amaechi whose party had plunged into a helpless situation, that the Supreme Court declared him (Amaechi) the winner of an election in which his party fielded a different candidate. That was more or less to penalize Amaechi’s party for being unfair to him.
Juxtaposing Amaechi’s case with the case at hand, the facts are not the same. Again, the pronouncement that it is the party that either wins or loses election, to my mind, is an obita dictum and, does not constitute a binding precedent in this instance.
It has also been argued that INEC has no power to cancel election and order a fresh election. But it goes without saying that INEC has express powers to conduct and manage elections. If that is the case, then it goes without saying that INEC also has incidental powers to order fresh election where the need arises. Otherwise INEC would also lack the powers to declare any election inclusive, or to conduct supplementary election as none of these is expressly provided for anywhere in our laws.
This interpretation of convenience adopted by INEC to justify the conduct of the supplementary election on the basis of which the next governor of Kogi State will be declared may give ground for election petition. Section 138(1) (C) of Electoral Act, 2010 (as amended) provides that one of the grounds for questioning an election is “that the Respondent was not duly elected by majority of lawful votes cast at the election.”
Similarly, section 69 of the Electoral Act provides that the candidate (not the party) that received the highest number of votes cast shall be declared elected.
In the light of the forging, if a candidate is declared winner pursuant to the supplementary election scheduled by INEC, can such victory be sustained at the Election Petition Tribunal and the appellate courts? Perhaps, this interpretation of convenience may at best only help to set the stage for litigation. Consequently, the Court will come in to interpret our laws accordingly and make the proper order in the circumstance – that a fresh election be conducted. And that will lay this whole controversy to a final rest.
—Onwe, Esq, a Legal Practitioner/Notary Public, wrote from Lagos