RE: The Kogi Electorate and the Burden of Justice, By Kogi Lawyers for Democracy

PIC. 7. ALHAJI YAHAYA BELLO (R), TAKING OATH OF OFFICE AS GOVERNOR OF KOGI AT HIS INAUGURATION, BEFORE THE CHIEF JUDGE OF THE STATE, JUSTICE NASIRU AJANA, IN LOKOJA ON WEDNESDAY (27/1/16).
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PIC. 7. ALHAJI YAHAYA BELLO (R), TAKING OATH OF OFFICE AS GOVERNOR OF KOGI AT HIS INAUGURATION, BEFORE THE CHIEF JUDGE OF THE STATE, JUSTICE NASIRU AJANA, IN LOKOJA ON WEDNESDAY (27/1/16). 0504/27/1/2016/BJO/NAN

This is in response to the ‘Kogi Concerned Democrats’ who took out a full page advert in The Nation newspaper of Thursday 18th August, 2016 under the topic above. They raised various issues relating to the petitions filed against the election of Governor Yahaya Bello of Kogi State by various aggrieved parsons, especially James Abiodun Faleke. It was a moonshine blend of faulty analysis, wishful thinking and thinly-veiled contempt for the Judiciary. Apparently they were not too pleased that she dared to uphold Governor Bello’s mandate at the Tribunal and again her judgement was upheld at the Court of Appeal.

For the record, the truth should also be spelt out so that the futility of their venture can be evident to all. We owe ourselves and posterity that much.

1.    Governor Yahaya Bello was never imposed on the people. He is the people’s choice, the result of their votes. This was clearly demonstrated after the APC primary election when the whole people went mourning as the news of Alhaji Yahaya Bello coming first runner up reached them. Alhaji Yahaya Bello had to calm the visibly angry Kogites. The whole Confluence State went happily agog when by a divine twist and the people’s support Alhaji Yahaya Bello finally emerged as the Governor of Kogi State.

2.    As we shall see below, following from the overall provisions of the law and paragraph 44(N) of the Approved Guidelines and Regulations for the Conduct of 2015 General Elections, the decision of the Kogi State Collation/Returning Officer for the Governorship Election not to make return on the 22nd November, 2015 until a supplementary poll had taken place in the affected polling unit(s) is in line with the provisions of both the 1999 Constitution (as amended) and the Electoral Act.

3.    Furthermore, INEC’s invitation of the APC to substitute her deceased candidate in the November 21, 2015 Governorship Election in Kogi State is in accordance with the provisions of Section 33 of the Electoral Act and this cannot be seen as an imposition. It is in the public knowledge that Faleke was only joined to Audu after the primaries had been concluded, but Bello, whom the APC chose, participated in the primary election that produced Audu as candidate, so the provisions of Section 141 of the Electoral Act 2010 as amended makes Faleke’s claim both untenable and unjustifiable.

4.    Accordingly, the nomination of Alhaji Yahaya Bello to replace the late Audu did not contravene the Constitution or the Electoral Act and Faleke lacks the locus standi to represent the APC in those Elections. In Chief Francis Uchenna Ugwu & Ors Vs PDP & Ors LER [2015] SC.130/2013, the Supreme Court stated that ‘…the law is well established that sponsorship of candidates for election is within the exclusive control and domain of the political party and this is binding on all courts pursuant to section 287 of the 1999 Constitution as amended.’ PER C. B. OGUNBIYI, J.S.C. See P.D.P. vs Sylva (2012) 13 NWLR (Part 1316) 85 PER K. B. AKA’AHS, J.S.C.

5.    There was no stolen mandate in Kogi State. What happened in Kogi State in the 2015 governorship election was a series of events within the one election. It is obvious that the uninformed erroneously capitalized on the words “inconclusive election” to mislead the public. No election was ever won in Kogi State on the 21st November, 2015 and no other body is statutorily empowered to declare otherwise except the Independent National Election Commission (INEC) and INEC did not declare anybody as a winner on 22nd November, 2015. The Tribunal and the Court of Appeal have since backed INEC on this issue.

6.    It is clearly against the provisions of Section 221 of the 1999 Constitution (as amended) for Faleke to lay claims to the number of votes polled before the demise of Audu and before the election was concluded for the fact that only the party could canvass for votes, the constitution does not recognise independent candidature so it is correct to say that Faleke is not a candidate in the November 21, 2015 gubernatorial election in Kogi State.

7.    The Issue of Audu/Faleke ticket having won the elections to all intents and purposes is false. Their joint ticket had not less than ¼ of all the votes cast in 2/3 of the Local Governments in Kogi State is not a winning argument. It is on record that both the APC and the PDP won one–quarter of the votes cast in each of the 21 Local Government Areas of the State. What is at important is the majority of votes cast. The Audu/Faleke ticket did not gather a clear majority as to conclusively outpace Wada/Awoniyi in the first round, hence INEC’s decision for supplementary polls.

8.    The number of registered voters in the 91 polling units where election had been cancelled, which was 49,953 voters, exceeded the margin of scores between the joint ticket of Prince Audu and Faleke and that of Capt. Wada and Arc. Awoniyi, being 41,619. The implication was that the result of election in those polling units could result in election results being reversed. Hence, the INEC lawfully declared the election inconclusive.

9.    Faleke and his coworkers did not dispute the cancellation of election in those polling units in the State where elections had been cancelled due to over–voting, violence and malpractices. So, attempting to capitalize on section 179(2) of the 1999 Constitution to make case for James Faleke would not have worked.

10.                  The Voters Register is the only Source of actionable information on Number of Registered Voters not Permanent Voters’ Card. Urging the courts to hold that INEC ought to have ignored the voters register in those areas where supplementary elections were held and depend instead on the number of PVCs collected is a direct attempt to subvert the express positions of the Electoral Act, especially Section 10(4) thereof, which provides as follows:

         “When a general election is notified by the Commission pursuant                 to Section 31 of this Act, the current official register of voters                 certified by the Commission in accordance with the provisions of this Act shall be the official voters register for those elections.’

         INEC was therefore right to use the official register of voters instead             of the controversial PVCs to determine the number of voters in the                 areas due for supplementary elections.

11.            The issue of “transferring” or “inheritance” of votes as some people want us to believe is utterly alien to our laws. The Courts have held in plethora of cases that votes cast in an election belong to the Party not an individual as candidate in an election.  See Section 33 of the Electoral Act and CPC Vs. Ombugadu (2013) 18 NWLR PT. 1385 P.66 at 152. “The primary method of contest for elective offices is therefore between Parties, not candidates (emphasis mine)” See Amaechi Vs. INEC (2009) 5 NWLR PT. 1080 P. 227 at 317.

Therefore, votes cast in 2015 Kogi Gubernatorial Election will always belong to the APC and not any individual.

12.                  The Electoral Manual that is so often disparaged by the uninformed is a valid subsidiary legislation, and where it is found to be relevant, its provisions must be invoked, applied and enforced. The Supreme Court was in agreement with this position in the case of Buhari Vs. Obasanjo (2005) 2NWLR PT. 901 Page 241 at 511 and Ajadi Vs. Ajibola (2004) 16 NWLR PT. 898 p. 91 at 165, para H. In this case the INEC rightly applied the Manual in the Kogi Election.

13.                  Section 160 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) confers powers on INEC to make its own rules or otherwise regulate its own procedure which shall not be subject to the approval or control of the President. Paragraph 15 (I) of the Third Schedule to the Constitution empowers the National Assembly to enlarge the powers of INEC through legislative enactments. In the exercise of this power, the National Assembly enacted the 2010 Electoral Act.

14.                  Given that INEC is the sole authority empowered by the Constitution to conduct elections, INEC is better positioned to make detailed rules and regulations to guide the conduct of elections, the National Assembly delegated the power to make enabling rules for the conduct of elections to INEC. Section 153 of the Electoral Act vests in INEC the power to issue regulations, guidelines and manuals for the purpose of giving effect to the provisions of the Act and for its administration.

15.                  In essence, the Electoral Act will be ineffective without the supportive and complimentary regulations, guidelines and manuals issued by INEC. Pursuant to the powers granted it by the Constitution and the Electoral Act, INEC issued the Guidelines and Regulations for the Conduct of the 2015 General Elections (hereinafter referred to as the Guidelines) and the Manual for Election Officials 2015 (Updated Version).

16.                  Section 141 of the Electoral Act makes a compelling case for Governor Yahaya Bello. To make a declaration that Governor Yahaya Bello never participated in all the stages of that election is a lie taken too far. Full participation in “all stages of the…election” is not a phantom concept which does not lend itself to precise definition. Section 141 of the Electoral Act as affirmed by per M.D Muhammad JSC in the case of Yar’adua Vs. Yandoma (2015) 4 NWLR PT. 1448 at 177, does justice to the issue as follows:

“…an election is a long drawn out process with distinct stages ending in the declaration of a winner by the returning officer. It entails one’s membership of a political party, his indication of desire to be party’s candidate at the election, primaries for nomination of the party’s candidate, presentation of the party’s candidate to INEC, the event of the election, return of successful candidate at the election after declaration of scores and in conclusion, the issuance of certificate of return to the successful candidate.”

It is submitted that in the context of Section 141 of the Electoral Act, a supplementary election is a general election held to allow areas which did not vote earlier to do so in order to arrive at the true outcomes of the elections. Governor Yahaya Bello did not contravene Section 141 of the Electoral Act.

The contextual import of section 141 of the Electoral Act contemplates the party and the candidate in full participation in an election in all the stages of the said election, which of course Governor Yahaya Bello fulfilled. At this point, both the party and the candidate are inseparable. It thus follows that Governor Yahaya Bello fully participated in all the stages of the said election. To say otherwise is to give a different interpretation to the the law.

17.           James Abiodun Faleke’s case is not only bad, but incurably so. The Supreme Court was emphatic that “there is simply no room for a candidate (like James Faleke) who never contested a primary election in such a setting to emerge a party candidate.” See Amaechi Vs. INEC (2009) 5 NWLR PT. 1080 P. 227 at 317.

18.Governor Yahaya Bello is eminently qualified to contest for election as the Governor of Kogi State. To maintain that Alhaji Yahaya Bello is not a registered voter in Kogi State nor voted in the election, therefore surmised not to be qualified to be elected as Governor is a mischievous and malicious attempt to introduce a strange law into the Nigeria legal jurisprudence. The 1999 Constitution clearly provides for the qualification of a candidate seeking to be elected into the office of a Governor.

Section 177 provides thus: “A person shall be qualified for election                 to the office of Governor of a State if –

a.    He is citizen of Nigeria by birth;

b.   He has attained the age of thirty –five years;

c.    He is a member of a political party and is sponsored by that political party; and

d.   He has been educated up to at least School Certificate level or its equivalent.”

I challenge anyone to point out any part of the above grundnorm that makes Governor Yahaya Bello unqualified to contest the election that took him to Lugard House.

We therefore submit that taking this whole matter into proper perspective, justice was rightly served by both the Tribunal and the Court of Appeal. Kogi State now looks to the Supreme Court to consolidate these verdicts so that their Governor can finally put his full focus on governance undistracted by traducers.

APC’S CIVIL WAR IN KOGI AND THE BEGINNINGS OF AN ACHILLES HEEL

It is pertinent to sound a call to action to the The All Progressives Congress (APC) before the actions of a few become the parameters by which Nigerians judge the party.

Nigeria’s Governing Party needs to get her house back in order, and quickly. Before the 2015 Presidential Elections she was a disciplined army, marshaling with military precision nationwide and executing strategy with a unity of purpose that was matchless. The Peoples Democratic Party (PDP), the former Ruling Party, was a sitting duck before the APC’s very mobile, hard-hitting campaigns and was totally outclassed in every theatre. It is no mean feat to wrest power from a ruling party in Africa but the APC did it at first try. Some opposition parties on the continent have been trying for 3-4 decades.

Now in Government, it appears success has compromised discipline, and party cohesion appears to be the first victim. Watchers of current affairs have noticed a troubling penchant for specific party bigwigs to appear above the law, and act in brazen violation of party unity, without the least repercussion from any quarter, never mind internal party control systems. The most glaring example of this insidious canker is to be found in Kogi State where forces allied to one of the most prominent power blocs in the APC are hellbent on unseating Governor Yahaya Bello even if it means losing the state to the PDP.

Twice now successive judicial hierarchies, namely the Kogi State Gubernatorial Elections Petitions Tribunal and the nation’s Court of Appeal, have affirmed Governor Bello’s election in very clear terms, and twice now members of his own party led by James Abiodun Faleke have led the charge to disavow it. They have now appealed to the Supreme Court before whom they have again rehashed their previously and twice-dismissed claims. Claims which can be summarized thus: If Yahaya Bello remains Governor in Kogi, then the APC as a party, along with the Independent National Electoral Commission (INEC) and the nation’s Judiciary, have perverted justice.

All the same, it is not the Kogi opposition’s recourse to the Judiciary that is so irksome. Au contraire, that aspect of their wahala is commendable. The judicial option is always best when free men dispute for their rights. What is dangerous, and the conduct which APC National has failed to curb is the sponsored false portrayal, in dozens of media platforms, of the APC Administration in Kogi State as a rampantly rapacious looting machine. The preponderance, monopoly actually, of these libelous publications in the Lagos Axis of the Nigerian Press practically geo-locates their source, and sponsors.

This campaign of malice and calumny, while directly targeted at de-branding the current occupant of Lugard House, Kogi’s Government House, is having the (intended?) effect of slowly, but steadily, de-marketing the APC at all levels. Initially, these adverse publications and media appearances were minor irritations which left a bad taste in the mouth of anyone abreast of the facts. In recent times though, they have mushroomed into a serious image problem for the APC as a whole.

Anyone who looks at the figures being bandied about and approaches the available evidence with frankness will not require a soothsayer to deduce the truth. Of course, there is no such looting going on in Kogi State. The allegations are figments of the fevered imaginations of their proprietors. In Kogi the New Direction Agenda is firmly on course, rebuilding the battered state it inherited and renewing the shattered psyche of her people. Nonetheless, the APC hierarchy must realize that image is crucial currency in governance and perception is key to image.

What these enemies within have failed to grasp is that in their bid to hurt Yahaya Bello with their lies, they are hurting the whole Governing Party.

The message Nigerians are getting from these false publications, if one goes by the trending discourses on social media, is that these allegations must be true if they are coming from such influential party insiders. And what’s more, if they are true of the APC in Kogi, then they must be true of the APC everywhere. It is this perception problem, and its allied image implications for the APC in general that necessitates an urgent and decisive intervention by party leaders.

Kogi State is not the first where members of the same party struggle in court over who the rightful occupant of a post which has been won at the polls should be. Abia State is embroiled in a similar tussle at the moment but parties therein have limited their hostilities to the courtroom, and to the issues. They have not turned it into a referendum on the capacity of their party to rule that state. Surely the APC can do better and the lowest hanging fruit right now is to rein in her members who engage in these anti-party activities in Kogi.

Governor Yahaya Bello’s New Direction Agenda in Kogi State is resonating with the people. The tangible efforts of the Administration at addressing the developmental challenges confronting the state are well received. When the Governor visited Okene days after his election and was received by a mammoth crowd, some uncharitably averred it was because he hails from the town. When he visited Ankpa last week for a private engagement and was received by a mammoth crowd celebrating his result-based, purposeful governance, detractors were struck speechless.

Kogi State is poised to become leading light among the APC states under Yahaya Bello, but she needs the party machinery at all levels to prevent enemies within from strewing obstacles along the path. This is not to say that such enemies can stop the New Direction Agenda from actualization. It is to say that proactive action by the party to contain them will amount to much less obstacles to surmount, and better speed in succeeding. Failure to do this could well amount to a chink in the armour and the beginning of an Achilles’ Heel. A house divided against itself cannot stand.

Signed:

Barr. Segun Senibi (Kogi West)

Barr. Adeiza Ojo (Kogi Central)

Barr. Idakwo Andrew (Kogi East)

FOR: KOGI CONCERNED LAWYERS FOR DEMOCRACY (KCLD)

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