Courts don’t determine winners of election —Victor Kwon

Could you give us an idea on how many cases the PDP has in court?It is a difficult thing to say. There are quite a few cases as you know that the PDP is no doubt the largest political party in the country and in Africa in terms of membership. Even within the party there […]

Could you give us an idea on how many cases the PDP has in court?
It is a difficult thing to say. There are quite a few cases as you know that the PDP is no doubt the largest political party in the country and in Africa in terms of membership. Even within the party there will always be competition. Such competitions sometimes result into conflicts and we try as a political party to apply internal remedies of dispute resolutions but unfortunately, sometimes some aggrieved members fail to take advantage of those internal remedies and go to court. Some members take advantage of the internal remedies. Inevitably, there would be litigation, either by reason of the aggrieved members not satisfied with the outcome of the internal remedy mechanisms or members totally disregard those internal remedy mechanisms and go to court.
There are quite a number of cases and the Electoral Act (EA) in Section 87 (10) also confers on any aspirant who participated in the primaries of a political party to go to court if he or she feels that the Electoral Acts was not complied with or the guidelines of the political parties have been breached in the conduct of the election.
As a practising lawyer do you support the abolition of the rank of SAN?
I do not think that the rank of SAN should be scrapped; it is important because every profession recognises distinction. A lawyer that has distinguished himself and qualifies deserves to be given the rank of SAN. Such a privilege should be conferred; I know that some people have called for the abolition of the rank of SAN because of their perception that the rules are not properly applied. For me that is advocating for throwing away the baby with the bathwater, rather let us throw away the bathwater and keep the baby. It is better to sanitise the process if there is any imperfection rather than abolish the rank.
How can we fight terror with the law?
There are constitutionally conferred rights – you cannot keep a suspect beyond 24 or 48 hours depending on the proximity of the place of detention to the court of law. However, it does not say that you cannot detain him beyond that; the constitution just says that you cannot detain him beyond that period without charging him to court and so such people can be apprehended and taken to court and if they bring an application for bail, the prosecutor should be able to satisfy the court that in the light of the available evidence and the surrounding circumstances of the case, such individuals are not fit to be admitted to bail, in which case there would still be detention but it would be by order of court. It would therefore not be unlawful.
What is your reaction to the recent judgment of the Supreme Court, in the appeal filed by Dr.  Umar Ardo  challenging the eligibility of President Jonathan to contest for president in 2015?
Dr. Umar Ardo had brought an application for leave to appeal as an interested party against the decision of Justice Mudashiru Oniyangi of the FCT High Court in the suit brought by Cyracus Njoku against Mr. President, PDP and INEC and that application he brought before the Court of Appeal (CA). The CA saw that the application was incompetent and without merit hence it was struck out.
Dr. Ardo does not have an interest in the matter. The judgment of the High Court did not affect any of his rights; he did not show what he suffered so the CA dismissed his application and he brought an appeal to the Supreme Court and the Supreme Court  also saw that the CA was right and that his first prayer in his application at the CA was not the prayer that he should have asked for. That therefore made his application incompetent. Again on the merit he did not have an interest in the matter and therefore not necessary to be made a party and to be granted leave to appeal.
I salute the decision of the Court of Appeal and the Supreme Court  in that matter. Yes, in the light that he didn’t have any interest in the appeal at the CA and he sought to get leave he was appropriately described as a busybody.
Mr. President has taken oath of office  twice and if he succeeds in the 2015 presidential elections don’t you think he would have spent more than the eight years provided in the constitution?
The President took oath of office in 2007 as vice president, he did not take oath of office as president and with the unfortunate demise of late President Yar ‘adua, Jonathan became president in 2010. By reason of the appropriate constitutional provisions he took oath of office. Mr. President ran for office as president only once before now and that was in 2011 general elections, he succeeded, won the election and took oath of office as the president.   
The provisions of the constitution relating to qualification and disqualification of the president in relation to having previously contested election is very clear. Section 137 (1) (b) states clearly that you are only disqualified from running for office of the president if you have been previously elected to that office on two occasions. In this case he was elected only in 2011. Now people erroneously say that he cannot run because he was in office between 2010 and 2011 as president. The circumstances are clearly understood and they are separate from what is contemplated in the constitution. Has he been elected as president on two separate occasions as president? No. As held by the FCT High Court, you cannot reckon with the period between 2010 to 2011 as part of his tenure, that period was to conclude the unexpired tenure of late President Yar‘dua.
A lot of people keep citing the case of Marwa Vs Nyako, decided by the Supreme Court as authority to say that he cannot stay more than eight years and I say that they cite that decision wrongly. The ratio in Marwa Vs. Nyako is that if a person is elected to an office and has taken oath and subsequently, that election is nullified and he wins a rerun election and takes another oath, you calculate the four year period from the date he took the first oath, that is what Marwa Vs. Nyako says.
Now Mr. President did not win election in 2010 and then also in 2011, no. When the Supreme Court in Marwa Vs. Nyako says tenure is four years and cannot be added, it was saying so in relation to a person that had won election, election nullified  and wins a rerun. Nowadays they use the decision as a catch all.
What are some of the defects in the Electoral Act  2010 that need to be amended?
The area of challenge to me is the time limit prescribed for determination of election petitions. Am quiet conscious of the fact that we all want the petitions to be heard and determined quickly but unfortunately in practice  it seems virtually everybody who loses elec-tion wants to go to the tribunal. The tribunal is manned by human beings and in a bid to rush to get to a decision before the end of the time fixed to determine those petitions, justice can be hastily carried out and that is not good justice. In some circumstances,  petitions become spent in the sense that it could not be determined within the time allowed. Supreme Court has held that time cannot be extended so you might have an otherwise meritorious petition but because of the fact that it cannot be taken within the time prescribed it goes into abeyance. That is an area of challenge that needs to be taken care of.
It seems  from what you have said that it is the courts that now determine winners of elections and not the electorate?
The court determination of election disputes or any other disputes is on the basis of evidence presented and so if a petitioner approaches the court, he presents his evidence and then the respondent also presents his defence and so the tribunals will not decide the matter outside the evidence. This evidence will include the result of the elections and testimonies of voters, agents and people who took part in the conduct of the elections. So it is not true to say that it is the courts that determine the winner. Yes the courts determine the disputes on the basis of the evidence before it which itself will include the testimony of the electorate as well as the result of the elections which is indicative of how the people voted.