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Atiku’s disqualification: What the courts say

COURT OF APPEAL

The President of the Court of Appeal, Justice Umoru Abdullahi, held that “What is in contention is whether the appellant, the body charged with the power to organise, undertake and supervise all elections to the office of President, Vice President, etc, as well as carry out such other functions as may be conferred upon it by an Act of the National Assembly in pursuance of paragraph 15 of the Third Schedule can ensure the observance of the provision of Section 137(1) of the Constitution. It is in the view of the learned counsel to the appellant that it could.

“I am of the firm opinion that if the appellant (INEC) decided to close its eyes to the infraction of the provisions of the Constitution, it would be tantamount to abandoning the heavy responsibility placed on it by the provisions of the Constitution to organise, undertake and supervise the conduct of a credible election.

“Apart from these constitutional powers, it is inherent in Section 32, particularly subsection (1) and (2) of the Electoral Act that the appellant has a primary duty to ensure compliance with the provisions of the Constitution. The Section had already been quoted in this judgment, but to reinforce my view, it is relevant to recite sub-section (2) of Section 32 of the Electoral Act which states: “The list shall be accompanied by Affidavit (sworn to by each candidate at the High Court of a State, indicating that he has fulfilled all the constitutional requirements for election into that office.

“The whole case of the respondent/cross-appellant was squarely hinged on Section 32(4) and (5) of the Electoral Act 2006. In my considered view, these two sub-sections deal with an entirely different situation. The two sub-sections when read together, provide an opportunity for any individual, after preview of the personal particulars of a candidate published by the appellant in the constituency where the candidate intends to contest the election can on reasonable grounds believe that there is false information given by such a candidate to the High Court to challenge his candidature. It will be a mere circus show for the Commission to be expected to go to Court first to seek a declaration before treating the information supplied to it.

“The submission of the learned senior counsel for cross-appellants that screening of candidates is exclusive responsibility of the political parties in view of his reliance on the case of Ajadi vs. Ajibola (supra), a Court of Appeal decision which upheld the right of the appellant to screen candidates, seriously, undermines his position.

“For the avoidance of any doubt, having regard to the clear provision of the Constitution and the Electoral Act discussed above, it is my considered opinion that the appellant has the power and authority not only to screen candidates sent to it by political parties, but to also remove the name of any candidate that failed to meet the criteria set out by the Constitution without having to go to court.

“In the circumstances, the appeal is meritorious and is allowed. Consequently, the cross-appeal fails, and is dismissed. The respondents’ claim fails and is hereby dismissed.” While the matter at the Court of Appeal was filed when INEC insisted on screening the candidates, the one which was resolved at the lower court was filed after Atiku had been disqualified by the commission.

FEDERAL HIGH COURT

In Justice Tijani Abubakar’s judgement, he granted all the three reliefs sought by Atiku, declaring that the report of the EFCC could not be a basis for the disqualification of Atiku, because the anti-graft body overreached its bounds on the issue of separation of powers in government.

He also dismissed the objection of INEC that the suit before it was an abuse of court process, since it was same as the one before the Court of Appeal, while assuming jurisdiction over the matter.

He pointed out that EFCC was an organ of the executive arm of government, and should not be seen to be performing the functions of other arms of government, especially the judiciary.

He subsequently declared the disqualification of Atiku null and void and of no effect, adding that it was incumbent upon INEC to obey the judgement of the court on them.

• The reliefs granted as sought by Atiku at the lower court include; A Declaration that the Provisions of Section 137 (1) of the Constitution of the Federal Republic of Nigeria, 1999 is not self-executory and does not confer a right or powers on the Defendants to exclude the 1st Plaintiff from being presented as the presidential candidate of the 1st Plaintiff or from so contesting in the forthcoming election.

•A Declaration that the Defendants can only exclude the 1st Plaintiff from contesting election to the office of the President of the Federal Republic of Nigeria upon pronouncements of a competent count in that respect.

• A Declaration that the Defendant does not possess the powers either under paragraph 15 of the 3rd Schedule to the Constitution or Section 137 (1) of the Constitution of the Federal Republic of Nigeria to unilaterally declare the Plaintiff as unqualified to contest the office of President in the forthcoming general elections.

•A Declaration that the Defendants’ act of disqualifying the Plaintiff from contesting the office of President in the forthcoming general elections is ultra vires, null, void, and of no effect; such powers being vested exclusively in the courts or tribunal constituted by law.

• An Order directing the Defendants not to exclude the 1st Plaintiff from contesting the election to the office of the President of the Federal Republic of Nigeria and if excluded, an order directing the Defendants to include the name of the 1st Plaintiff as presidential flag bearer of the 2nd Plaintiff.

• An Order of perpetual injunction restraining the Defendants from excluding and or attempting to exclude the name of the 1st Plaintiff as the presidential candidate of the 2nd Plaintiff into the office of the President of the Federal Republic of Nigeria except upon the pronouncement of a competent court of law.