By Prof Ben Nwabueze
This is a short commentary designed to show that the order by Hon. Justice Okon Abang of the Federal High Court (FHC) Abuja directing the Independent National Electoral Commission (INEC) to issue a Certificate of Return, with immediate effect, to Dr Uche Ogah is a coup against the Electoral Act 2010; the order does not aim at doing justice according to law, it is rather a rape of the rule of law.
The legality or illegality of the order sacking Dr Okezie Ikpeazu as Governor of Abia State, declaring Dr Uche Ogah as winner of the April 2015 governorship election in the state, and directing that he be sworn-in forthwith as Governor (examined in another write-up) is outside the purview of this write-up whose concern is essentially with the illegality of the decision directing the issuance of a Certificate of Return to Dr Ogah.
Even as limited to the illegality of the order to INEC, the write-up must necessarily begin by noting section 133(1) & (2) of the Electoral Act 2010 (to be read together with section 138(1) of the same Act) which provides :
“133 – (1) No election and return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to as an “election petition”) presented to the competent tribunal or court in accordance with the provisions of the Constitution or of this Act, and in which the person elected or returned is joined as a party.
(2) In this part, “tribunal or court” means –
(a) in the case of Presidential or Governorship election, the Court of Appeal; and
(b) in the case of any other elections under this Act, the election tribunal established under the Constitution or by this Act”. (emphasis supplied)
Therefore, the question whether a person whose election is questioned was, at the time of the election, not qualified to contest the election” (section 138(1), i.e. qualification or eligibility for an election, can only be raised by means of an election petition under section 133(1)) of the Act, and the forum before which it can be raised is an election tribunal (or the Court of Appeal in the case of a presidential election) under 133(2). The issue of qualification or eligibility for an election does not in any way touch on the question whether “the term of office of any person under this Constitution has ceased”. It follows that the ordinary courts, including the FHC, have no jurisdiction over the question, which is an election matter. We are no longer in the days before the introduction of the new system for the adjudication of election matters by election tribunals specially created for the purpose. The days when election matters were adjudicated by the ordinary courts whose jurisdiction was unlimited and embraced election matters came to an end in the period from 1989.
The exclusiveness of the jurisdiction of election tribunals over election matters is the crucial aspect of the demarcation of jurisdiction between them and the ordinary courts. The exclusiveness of their jurisdiction is provided in section 285 of the Constitution (1999) which, in its subsection relevant to this case (i.e. subsection 2) provides :
“There shall be established in each State of the Federation one or two election tribunals to be known as the Governorship and Legislative Houses Election Tribunals which shall, to the exclusion of any other court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any legislative house” emphasis supplied.
The word petition is underlined to emphasis that the question whether “any person has been validly elected to the office of Governor” can only be raised by means of a petition before an election tribunal. It cannot be raised by any other means or before any other forum.
The validity of an election means the same thing, among the other things mentioned in section 138(1) of the Electoral Act 2010, as the issue of qualification or eligibility, which, being indisputably an election matter, excludes the jurisdiction of the ordinary courts. The Court of Appeal has rightly held in the Justice Nabaruma case, (2004) 13 NWLR (Pt 891) 599, that “where the Constitution gives jurisdiction to the election tribunal to the exclusion of all other courts or tribunals, the Federal High Court has no jurisdiction”, at page 623, per Justice Fabiyi JCA, citing the decision to the same effect in Okpala v. Ezeani (1999) 4 NWLR (Part 598) 250 (Court of Appeal).
What is said above is in the nature of preliminary observation, which is nevertheless germane to the issue for discussion. Coming now to the specific issue, with which this write-up is concerned, about the illegality of the order made by Justice Okon Abang, specifically directing INEC to issue a Certificate of Return to Dr Uche Ogah, the jurisdiction of the FHC to make the order is clearly excluded by the Electoral Act 2010. The matter of a Certificate of Return in all its aspects – its issuance, the power to issue it, the body or authority to issue it, namely INEC, the procedure or process for issuing it – is regulated entirely by the Electoral Act 2010, and is patently an election matter which, as provided in the Act, can only be raised in, or by means of, an election petition before an election tribunal. As an integral part of the process of an election, the issuance of a Certificate of Return can arise only as part of the process of an election, which makes it an election matter over which an election tribunal has jurisdiction to the exclusion of the ordinary courts, including the Federal High Court (FHC).
The matter of a Certificate of Return is specifically provided for by section 75(1) of the Act as follows :
“(1) A sealed Certificate of Return at an election in a prescribed form shall be issued within 7 days to every candidate who has won an election under this Act…..
PROVIDED that where the Court of Appeal or the Supreme Court being the final appellate court in any election petition as the case may be [not the FHC, be it noted] nullifies the Certificate of Return of any candidate, the Commission shall, within 48 hours after the receipt of the order of such Court, issue the successful candidate with a valid Certificate of Return” – emphasis supplied.
The underlining is to emphasise that there must be a general election in pursuance of which a Certificate of Return is then issued to the “candidate who won it”. A Certificate issued otherwise than in accordance with the provision of section 75(1) of the Act is illegal.
It is significant that section 75(1) of the Act gives to the Court of Appeal or the Supreme Court no power, even where it nullifies an election and the Certificate of Return, as the final Appellate Court in any election petition, to make an order specifically directing INEC to issue a Certificate of Return to the person successful in such appeal. The issuance of a Certificate of Return in such a case is left in the discretion of INEC which may refuse to issue it; the Court cannot order it to do so. In the event of such refusal, section 75(2) provides: “where the Commission refuses or neglects to issue a Certificate of Return, a certified true copy of the order of a court of competent jurisdiction shall, ipso facto, be sufficient for the purpose of swearing-in a candidate declared as the winner by that Court”. An order by the FHC, or even by the Court of Appeal or the Supreme Court as the final Appellate Court in an election petition, specifically directing INEC to issue a Certificate of Return to a person, especially a person who is not a “candidate declared as the winner” by the Court, like Dr Uche Ogah in the case before Justice Abang of the FHC Abuja, may fairly be described as a judicial coup against the Electoral Act, what he (the hon judge) did is not justice according to law, but a rape of the rule of law. In conclusion the order specifically directing INEC to issue a Certificate of Return to Dr Uche Ogah is utterly null and void, even assuming the FHC to have jurisdiction to order Dr Okezie Ikpeazu to vacate office.
It is necessary to emphasise what is already implied, namely that a Certificate of Return means a certification that a person, who must be a candidate or contestant at an election has been duly elected or returned to the elective office in question. This is brought out clearly by the provision in section 133(1) of the Act, noted above, to the effect that an election or return at an election under this Act cannot be “questioned otherwise than by a petition complaining of an undue election or undue return”, and even more clearly by section 156 which defines “Return” as meaning “the declaration by a Returning Officer of a candidate in an election under this Act as being the winner of that election.” There can be no valid Certificate of Return without such a declaration by a Returning Officer under section 69 of the Act.
Conscious of the fact that it has no power to order INEC to issue a Certificate of Return to Amaechi, the Supreme Court in Amaechi & Anor. V. Independent National Electoral Commission (INEC) & Ors (2007) 18 NWLR (Pt 1065) 105 stopped short of making such an order, merely ordering that he “be sworn-in forthwith”. It is not known whether INEC actually issued a Certificate of Return to Amaechi, but if it did, it must have done so, not because it was ordered to do so by the Court, which has no power to do so, but by the exercise of its discretion, based on its own interpretation of its duty in the light of the implication of the order nullifying Omehia’s election and declaring Amaechi the winner.
Hon Justice Okon Abang’s order directing INEC to issue a Certificate of Return with immediate effect to Dr Uche Ogah is, not only a coup against the Electoral Act, it is also a brazen exhibition of judicial recklessness, of judicial activism run riot; for, it defies, in a reckless manner, the prohibition in section 141 of the Act that “an election tribunal or court shall not under any circumstances declare any person a winner at an election in which such a person has not fully participated in all stages of the said election.” Dr Uche Ogah falls squarely within this prohibition, since he was not a candidate or contestant at the April 2015 governorship election in Abia State, and no votes were cast for him, not to talk of being declared the winner of that election by the Returning Officer under section 69 of the Act.
Having regard to the manifest illegality of the order directing the issuance of a Certificate of Return to Dr Ogah, it is disconcerting that the Conference of the Nigerian Political Parties (CNPP), in a statement signed by its National Chairman, Alhaji Balarabe Musa and the Secretary General, Chief Willy Ezugwu, and published in The Guardian of July 1, 2016, should commend Justice Okon Abang’s order as heralding the end of “the era of impunity” but should also applaud INEC for “the singular demonstration of courage to do what is right”. It is astonishing that the CNPP, ordinarily discerning in its comments on political affairs in the country, should fail to appreciate that impunity by the judiciary in the adjudication of disputes is a far graver danger than impunity in governance by the Executive.
INEC COMPROMISED ITSELF IN THE ILLEGAL ORDER DIRECTING IT TO ISSUE A CERTIFICATE OF RETURN TO DR UCHE OGAH
To reiterate what is said earlier in this write-up, the order of Justice Okon Abang directing INEC to issue a Certificate of Return to Dr Uche Ogah is null and void because the matter of a Certificate of Return is, in all its aspects, an election matter which, as provided in section 75 of the Electoral Act 2010, can only be raised by means of an election petition before an election tribunal; the jurisdiction of the ordinary courts, including the FHC, over it is completely excluded by section 285(2) of the Constitution. Under section 75(1) of the Electoral Act 2010, INEC is not obliged to issue a Certificate of Return mechanically like a robot. Section 75(2) implies a power in the Commission to “refuse” to issue a Certificate, having regard, especially, to the fact that Dr Okezie Ikpeazu had, to its knowledge, appealed against the judgment and applied for a stay of execution. Its position in law in the matter does not warrant the contrary impression created by its Commissioner, Lawrence Nwuruku, when, as reported in The Niche of July 3, 2016, he said:
“The Commission acted in obedience to the lawful order of a court. If the court subsequently orders a reversal of the action, the Commission would not hesitate to do its bidding. The situation is simply that we are obeying the court order. The court said, with immediate effect without wasting of time, we should issue him Certificate of Return and that is what we have done – to obey the court order. If the court tomorrow issues another order, we would obey the same.”
It is simply astonishing that a supposedly “independent” electoral umpire should act like a robot in a matter so explosive and capable of throwing the State into a state of discord and anarchy.
Commenting on the matter in the Vanguard of July 9, 2016, a newspaper columnist, with a perceptive mind, Dr Ugoji Egbujo said quite cogently and pointedly:
“The response of INEC should have reflected clear, sober, meticulous deliberation rather than haste…..A notice of appeal does not amount to a stay of execution. But it is a legal move INEC cannot ignore. It should not subvert it. In issuing a Certificate of Return to Dr Ogah, has it furthered the values of transparency and impartiality. Has its mission of enhancing sustainable democracy in Abia been helped? The certificate of return it issued to Ogah was signed the same day the judgment was given. That is suspicious haste. That is indefensible haste…….INEC’s role is to further justice and peace. A governorship election is not a tussle over a ‘tokumbo’ car. A fountain of morality like INEC must understand the implications of its actions.”
Professor Ben Nwabueze is a Constitional lawyer.