By Umar Sa’ad Hassan
To say the least,the attitude of our courts in cases bordering round party membership have been far from satisfactory since the new Electoral Act came into being on 25th February 2022.They appear totally oblivious of the fact this is a new law and court cases springing up in the first electoral cycle will form precedence.Courts have made very controversial decisions with regards to the mandatory and explicitly clear requirements of the Act that a party maintains a register of its members and that the register be presented to the Independent National Electoral Commission at least 30 days before the party primaries.Section 77 (2) and (3) of the Electoral Act read as follows:
77.(2)-Every registered political party shall maintain a register of its members in both hard and soft copy.
(3)-Each political party shall make such register available to the commission not later than 30 days before the date fixed for the party primaries,congresses or convention
With the absence of any proviso stipulating extenuating circumstances,the presence of the word ‘shall’ in these sub-sections shuts the window on any work-around.The only argument worth listening to is that the Act is silent on the consequences of non-adherence and as such,none can be fashioned out for it but then the Mischief rule of legal interpretation or the Heydon rule as some would call it,would come into play.Curbing the practice of hurriedly leaving a party just to contest elections on the platform of another is one of the things this Act seeks to achieve.
The first high profile case regarding membership I came across was that of the Allied Peoples Movement V Peter Obi & the Labour Party.The Court of Appeal was elaborate in its probing of other issues but kept things light on the issue of whether Peter Obi was a Labour Party member having joined after the party had submitted its register to INEC.
Though the court rightly ruled that no copy of the register of members submitted to INEC was tendered in evidence in dismissing APM’s appeal from the Federal High Court,asking APM to pay both Obi and his party N200,000.00 each in costs said more than anything that the court thought it a frivolous action.It may be incompetent but certainly not frivolous.APM had a good ground but just went about it the wrong way.
When the APC raised this same issue of Obi having joined his party after its register was submitted to INEC and could not be deemed a member of the Labour Party per the provisions of the Electoral Law,the Presidential Election Petition Tribunal ruled that ‘Membership of a Party was a Party Affair’.That is erroneous to say the least.The Supreme Court has held that the concept of ‘independent candidate’ is alien to Nigeria.Section 131 (c) of the constitution says that only a member of a party can be presented for election as President and going by the provision of Section 77 (3) which essentially answers the question ‘Who is a Member’,anyone whose name is not on the register of members submitted to INEC at least 30 days before the party’s primaries is not a member of that party.The validity of a candidacy per the Nigerian Constitution and the Electoral Act is what is being challenged and that is way past the realm of ‘party affair’.These are not criteria laid down by a party’s constitution but the laws our land.
While bantering with some APC friends of mine ahead of the judgment of the Kano Governorship Election Petition Tribunal,I told them the real issue there wasn’t whether or not Abba Yusuf won the election because anyone who was in Kano during the elections knows he did,it was whether or not he was an NNPP member in the eyes of the law with the APC having tendered a certified copy of the NNPP register of members from INEC.To my utmost surprise,it declared it a ‘Party Affair’ perhaps in line with the legal principle of judicial precedence.The Presidential election petition tribunal which had earlier ruled similarly on Peter Obi is effectively a Court of Appeal comprising justices from that cadre of the judiciary while State Governorship Election Petition Tribunals are comprised of High Court justices.
The tribunal based its decision in Kano to deduct 165,663 votes from Abba Yusuf in what has been widely perceived as a Get-him-out-at-all-costs mission on non-compliance with Section 60 (2) of the Electoral Act which requires a presiding officer to sign and stamp a result sheet but that infraction is remedied by a proviso in the form of Section 63 (2) which says the returning officer must rule out those unsigned/unstamped result sheets as not being part of the collection assigned to the presiding officer for them to be void.
Its always sad to see the real winner of an election get booted out for reasons other than whether or not they were the choice of their people but the Court of Appeal’s reliance on Section 77 cannot be faulted.The APC unlike APM in Obi’s case,presented a copy of the NNPP’s register from INEC; the one bonafide custodian of the list of registered members presented at least 30 days to a party’s primary.It is legally impossible to present a ‘better’ list unless of course INEC denies the tendered list as emanating from it.
The fact that the Electoral Act is a new law and that the courts are laying precedence with these fresh batch of cases cannot be over-stated.There is a need to apply the law as appropriately as possible because whatever a superior court decides in law is binding on a lower court.The ridiculous notion that it is a ‘party issue’ when the validity of a candidacy as laid down by our laws and not a party’s constitution is questioned needs to be corrected in the best interest of justice.
Umar Sa’ad Hassan is based in Kano
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