Supreme Court Must do What is Right On Kogi

1. On September 20, 2016 the Supreme Court will
determine one of the most brazen attempts to violate
the Constitution of the Federal Republic of Nigeria
when it gives its judgment in the matter of Idris Wada
& Others v Yahaya Bello & Others.
2. The facts of this case are clear and as such do
not require repetition. However, the legal issues are
somewhat murky. While our laws did not envisage the
scenario caused by the unfortunate death of late
Prince Abubakar Audu and do not stipulate the
pathway to follow to resolve the quagmire, they are
very clear on what not to do in pursuit of a
resolution.
3. In attempting to resolve the issues thrown up by
late Audu’s death, the Independent National Electoral
Commission (INEC) aided by the ruling All
Progressives’ Congress (APC) took the option most
prejudicial to democracy in Nigeria by permitting:
i. The substitution of the late APC candidate with
Yahaya Bello;
ii. Passing off votes cast for the late APC candidate
as votes cast for Yahaya Bello;
iii. Permitting Yahaya Bello to contest for the
supplementary elections without a deputy
governorship candidate, and
iv. Issuing him a certificate of return in furtherance
of (iii) above.
4. Without prejudice to all the legal issues relating
to this appeal, two fundamental issues can be
distilled from the facts, both of which form the basis
of our contention that Yahaya Bello ought to have
been removed from office by the Kogi State Election
Petition Tribunal and the Court of Appeal.
i. Were the Tribunal & Court of Appeal right to have
upheld the election of Yahaya Bello in light of the
provision of Section 141 of the Electoral Act?
Section 141 provides that the Tribunal or Court shall
not under any circumstance declare any person
winner of an election if such a person did not fully
participate in all stages of the election.
This provision of law has already been applied and
upheld by the apex court in a plethora of cases.
These include: CPC v Ombugadu (2013) 18 NWLR
(1385) 16; Gbileve v Addingi (2014) 16 NWLR (1433)
56; Eligwe v Okpokiri (2015) 2 NWLR (1443) 348; Jev v
Iyortom (2015) 15 NWLR (1483) 484.
The interpretation given to this section was that
while Courts listening to intra-party disputes could
declare a person who had not participated in all
stages of an election winner, an Election Petition
Tribunal or the Court of Appeal sitting as a court of
first instance cannot do so.
The facts are clear and unambiguous. Yahaya Bello
did not participate in the elections of November 21st,
2015 where more than 230,000 votes which were
allocated to him were cast.
When the law and the judgments cited above are
applied to the facts, it is impossible to reach a
conclusion that the Tribunal and the Court of Appeal
erred in finding in favour of Yahaya Bello.
ii. Were the Tribunal and Court of Appeal right to
have held that Yahaya Bello could validly contest an
election without nominating a deputy?
Section 187(1) of the Constitution provides:
“In any election to which the foregoing provisions of
this part of this Chapter relate a candidate for the
office of Governor of a State SHALL NOT be deemed to
have been VALIDLY nominated for such office UNLESS
he nominates another candidate as his associate for
his running for the office of Governor, who is to
occupy the office of Deputy Governor; and that
candidate shall be deemed to have been duly elected
to the office of Deputy Governor if the candidate who
nominated him is duly elected as Governor in
accordance with the said provisions.”
The Supreme Court has, on several occasions
interpreted that use of the word “SHALL” to connote
an obligation that must be observed. In this context,
the wording of Section 187(1), places an obligation
on a gubernatorial candidate to nominate a running
mate or face the risk of not being deemed to have
been validly nominated to contest for such office.
It is well known fact that Yahaya Bello did not
nominate a running mate for the supplementary
election of December 5th, 2015. It is also public
knowledge that the person allegedly nominated on his
behalf by his party, Hon. James Abiodun Faleke, wrote
a letter to INEC & APC stating that he was not running
mate to Yahaya Bello. It is public knowledge that
Hon. James Abiodun Faleke went further to file a law
suit challenging Yahaya Bello’s emergence as
Governor.
When the law is applied to the facts, there is no
escaping the conclusion that the learned Judges at
the Tribunal and the Court of Appeal erred in finding
in favour of Yahaya Bello.
To highlight the very contradictory nature of these
findings, answers have to be sought for the following
questions:
a. If Hon. James Abiodun Faleke was the deputy
governorship candidate of the party on the day of the
supplementary why was Simon Achuba nominated,
screened and sworn in as Deputy Governor?
b. How could Simon Achuba be nominated,
screened and sworn in as Deputy Governor without a
letter of resignation from Hon. James Abiodun Faleke?
5. In several small gatherings across the State,
Yahaya Bello claims to have bought over the learned
Justices of the Supreme Court. These claims are as
unbelievable as they are worrisome. These claims are
also a sign that having analysed the legal issues,
particularly the dissenting judgments of Justices
Obande Festus Ogbuinya and Tijjani Abubakar, Yahaya
Bello is willing to resort to any means, legal or
illegal, to win this case.
6. As seen here, even without giving consideration
to the issues of inheriting votes cast for one
candidate by the other, it is impossible to analyze the
legal issues, the applicable laws and the extant facts
and reach a conclusion that the provisions of our
laws have been complied with in a manner that
confirms Yahaya Bello to be validly nominated,
elected and duly sworn in as Governor of Kogi State.
7. As the Apex Court of land gives judgment
tomorrow, we urge the Court to uphold the sanctity of
the Constitution and to stop this brazen rape of our
laws and this arrogant violation of our democracy.
8. God bless Nigeria.