Legal fireworks on annulled Imo guber election
No doubt the laudable contributions of activist political jurisprudence in the last two years, for which generations unborn will be proud of many Supreme Court and Court of Appeal justices, cannot be overemphasized. This may have emboldened Chief Martin Agbaso, the candidate of the all Progressives Grand Alliance (APGA) in the 2007 Imo State governorship […]
No doubt the laudable contributions of activist political jurisprudence in the last two years, for which generations unborn will be proud of many Supreme Court and Court of Appeal justices, cannot be overemphasized. This may have emboldened Chief Martin Agbaso, the candidate of the all Progressives Grand Alliance (APGA) in the 2007 Imo State governorship polls to press on with the pursuit of justice on the annulled 14th April, 2007 governorship election. Truly, apart from Late Chief M. K. O. Abiola’s June 12 saga, which almost broke Nigeria’s back, the Imo injustice is in the hall of infamy of wholesale arbitrary rape of people’s will. Agbaso’s case is that on 14th April, 2007, Imo people decisively voted the APGA/Agbaso ticket. It was the people’s moment and they seized it. Exit polls showed that he decisively won in at least 24 out of 27 local government areas collated but the election was annulled.
Now, by Section 179(2)(b) of the 1999 Constitution, the Independent Electoral Commission (INEC) has a mandatory obligation to declare a governorship candidate elected if “he has not less than one-quarter of all the votes cast in each of at least two-thirds of all the local government areas in the State”. INEC has no choice in this. It makes no difference that the incumbent president has another candidate in mind or that the chair of INEC comes from the relevant State and prefers a candidate from his clan. No, it is a compulsory constitutional provision, which every Court of record, whether sitting as election petition tribunal or not has inherent powers to enforce when properly seized. Since redress for wholly cancelled election is not one of the grounds for presentation of election petition under Section 145(1) of the Electoral Act 2006, the Federal High Court should have jurisdiction under Section 251(1)(q)(r) of the 1999 Constitution to deal with the issue of cancellation both as a matter of constitutional interpretation and of the validity of an executive action.
Agbaso alleged that the votes for both the governorship and House of Assembly polls were cast into the same ballot box. Out of the 3,532 polling booths, results were already released in 3,496. Out of the 305 wards, results were already collated and announced in 289. Out of 27 local government areas, results were already collated and announced in 26! apga had overwhelming lead in 24 out of 27 local government areas winning about 87 percent of total votes cast in the polls! inec officials announced the results at the said polling booths, wards and local government areas. instead of putting together the figures in forms EC8Cs (Local Government Collation Sheet) in his form EC8D and make his return in form EC8E as required by INEC Manual, on Sunday 15th April, 2007, what the REC announced was a wholesale cancellation.
As casus belli, the REC cited alleged violence in nine out of 27 Local Government Areas. Pundits have since wondered why the simultaneously conducted House of Assembly elections were not affected by the alleged violence. This is apart from the fact the Nigeria Police submitted a detailed statistical report on all cases of violence across the states for the election. INEC issued a table of this statistics to the media. In the report published by THISDAY there was no single case of violence reported in Imo State. (ThisDay, May 10, 2007 at pages 1 and 4) So where did the quantum of violence that could mar the governorship poll and make the State Assembly polls come from?
On 19th May, 2007, five days after the cancellation, in Suit No FHC/ABJ/M/269/2007 in the Abuja Division of the Federal High Court, Agbaso promptly challenged INEC and sought reliefs to restore the cancelled election. Despite being served with the processes, INEC never appeared in Court. It rather conducted a fresh election on 28th April, 2007! In Peter Obi v INEC & 6 Ors (2007) 11 NWLR (Pt. 1046) 565, the Supreme Court rebuked INEC for conducting a fresh governorship election in Anambra State while Peter Obi’s tenure case was pending. Aderemi JSC said at page 645 E -G: “I only need to add that … that election was a wasteful and unnecessary exercise. The 1st respondent (INEC) was aware at that time that the appellant was in court pursuing his legal rights. A body that has respect for rule of law, which INEC ought to be, would have waited for the outcome of the court proceedings; particularly when it was aware of it.”
It now falls to the Court of Appeal to decide whether INEC was in order to ignore the process of the Federal High Court, per Chikere J. to conduct the 28th April, 2007 fresh election pendente lite. The Court will decide whether INEC would be allowed to foist it with a fiat accompli by its own precipitate contemptuous act of conducting a fresh election while a suit on the cancelled election was pending. INEC’s lawyers have questioned why INEC should have waited in the absence of an injunction. This will also be for the Court of Appeal to decide. But Peter Obi’s Case and earlier cases on the line indicate that even in the absence of injunction, a party served with Court process ought not to do anything to overreach the Court. Judicial attitude is usually to invoke Disciplinary jurisdiction to peremptorily undo such precipitate acts based on the maxim pendente lite nihil innovetur (during litigation nothing new should be introduced).
Thus in the vexed Imo State governorship matter, it would appear that the further evidence adduced would be the crucial materials for effective and effectual determination of the Imo governorship imbroglio under the general powers of the Court of Appeal to do Equity and Justice.
Ogham, Convener Forum for Fundamental Freedoms (FFF), writes from Lagos