NigerianNews Editorial:: Amaechi vs. Omehia: And the Reasoning please?

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In all this back and forth, the other parties are lost in the shuffle; what exactly is the sin of the other parties? If the answer is none, and we also know that the Supreme Court is not constitutionally mandated to order a new election, did the remedy fashioned by the Supreme Court all inclusive? If it is not all inclusive and the other parties played by the rule and spent a lot of money to prepare for the election, is the remedy fashioned by the Supreme Court appropriate? Of Course, not! A reasonable remedy without ordering a new election (since they do not have that power) is to conclude in their judgment that no election was held in Rivers State on April 14, 2007. As a matter of fact, you cannot hold an election if a candidate who is legally presented is indisposed by reason of illness or other valid indisposition, even according to the Nigerian Electoral law! This action would have turned the case right back to INEC since the pronouncement of the Supreme Court is binding on all parties involved.


 



Amaechi vs. Omehia: And the Reasoning please?
NigerianNews Editorial


 

Anyone who read our article on the Amaechi vs. Omehia titled The Supreme Court: Supreme in all things but Remedy! will in no doubt notice that our bone of contention with the Supreme Court was never about the conclusion they reached. Our problem has always been the remedy they fashioned to compensate the winning side in this case, Amaechi.

The latest articulation by Justice Oguntade, representing the other Justices who sat over this case was no less a masterpiece in explaining why they ruled in favor of Amaechi.

However, where we took issue and we still do is that their explanation continues to indicate that the sin of PDP and the Court of Appeal must also be shared by the other parties which contested this election.

There is a validity to what the good book said about law; in the absence of the law, there is no sin. However, is this a justification to do away with the law? Of course not! The answer is in the demystification of the law as an exclusive preview of the lawyers or technocrats in any endeavour. Let all laws be written in the heart of the citizens. And the first step and best way to go about this is as follows:

An editor may know how to quote the 2nd law of Thermodynamics, and a thoroughbred writer may quote romantic fidibus or even a direct quote from Hella Joof, as long as the meaning of the quote is made clear and relevant to ordinary person, we recommend this approach of letting ordinary people know that whatever the quote, though it may sound like an intellectual mumbo jumbo, it is nothing but a collection of facts that he has always known even before the formation of any such quotes. For example, he who quotes the 2nd law of Thermodynamics that says: The general tendency of any pure material is to become impure, can also advance the local meaning of this law by pointing out the all time parallel in the Yoruba saying of: Ogede nbaje, ani npon (As Banana/Plantain journeys towards degradation, we say it is ripening). Now how would a Yoruba person know that he is expressing a profound thermodynamics law when he says that unless we let him know that there is nothing really new under the heavens?

If everything is made clear, will the consequences of any law and the remedy not be clear and understood even by the uninitiated?

From the above, we can see that we all have responsibilities to bring our knowledge to any discussion, provided we have a good grasp of our knowledge! Would that not in the long run educate our people that Einstein did not express anything in his ingenious Theory of Relativity that did not exist or have implications locally even before he was born? We are however proud of him as the one who studied, observed and quantified it in depth, eventually, he mathematized observations that have always been there before he was born! It is time we demystify all these laws and make them understood by all people.

It is this demystification that is lacking in the Supreme Court judgment in the case of Amaechi Vs Omehia starting from the 2006 Electoral law, section 147. This is why ordinary people like the people at the NigerianNews  are still crying foul.

Let us now examine the relevant laws and the constitutional aspect; The Electoral law 2006:

Nullification of election by Tribunal or Court.

147. (1) Subject to subsection (2) of this section, if the Tribunal or the Court as the case may be, determines that a candidate who was returned as elected was not validly elected on any ground, the Tribunal or the Court shall nullify the election.

(2)  If the Tribunal or the Court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the Election Tribunal or the Court, as the case may be, shall declare as elected the candidate who scored the highest number of valid votes cast at the election and satisfied the requirements of the Constitution and this Act.

(3)  Subject to the provision of subsection (2) of section 149 of this Act, on the motion of a respondent in an election petition, the Election Tribunal or the Court, as the case may be, may strike out an election petition on the ground that it is not in accordance with the provisions of this Part of this Act, or the provisions of First Schedule of this Act.

Even if the above section is a challenge thrown to the ongoing election tribunal in Rivers State by the Supreme Court, where is Amaechi in this equation? And if this is just a Pontius Pilate's clever maneuvering and another modern day  failure of mea culpa rendition, is it not better for this Supreme Court to wash its hands on the note that, since there was a violation by both PDP and the Court of Appeal, and since it could not order an election, it would interpret the violation as meaning there was no election April 14, 2007?

Obviously, the above quotes of section 147 of the 2006 electoral law can only be interpreted by poor people who though not knowledgeable of the law, but can think, as pointing to the direction that there was NO gubernatorial election in Rivers State on April 14, 2007, taking into consideration of the events that preceded the election. In this case, there was a party without a valid candidate. The action would have been to remove the violating party from participation. However, since these remaining parties and their candidates were not from the inter stellar space but citizens and parties of this great country, they deserve protection of the above law.

Nowhere in section 147 is a party mentioned; what is mentioned is 'candidate'. Since we all know that our system is no longer the parliamentary type where the party is supreme (section 147 above bears that out), we must conclude that what is implied above is the presidential type model with minimal whip system and the corresponding elevation of candidates over political parties.

However, taking everything into consideration, our reading of the Supreme Court judgment seems to not close the door of righting the wrong in this case. We take it to mean that what they are saying is that it is the responsibility of the lower court to right the wrong. Some people can also conclude that if the correct remedy had been fashioned; that is, concluding that there was no election, then, there would not have been any need for the lower court to even step in, as the ball would have been back at the INEC court. We know now that some people will laugh at us knowing that this is an elimination of one Robin Hood and the appointment of a new more vicious highway robber! At least, some people who are not scared of defending their rights like it is happening in Kenya right now and had happened in Ukraine with amazing result, will at that point decide whether their rights are worth the hassle or not.

What the Supreme Court also failed to acknowledge in its reasoning and it cannot wish away is the full effect of section 179 of the 1999 constitution in all its totality. If we all accept our constitution as a superset  over and above a legislative act, and its even more superior to both the Supreme Court and the section 147 of the electoral act quoted above, where then did their reasoning address these essentials of section 179 of the 1999 constitution:

179. (1) A candidate for an election to the office of Governor of a State shall be deemed to have been duly elected to such office where, being the only candidate nominated for the election-

(a) he has a majority of YES votes over NO votes cast at the election; and

(b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the local government areas in the State,

but where the only candidate fails to be elected in accordance with this subsection, then there shall be fresh nominations.

(2) A candidate for an election to the office of Governor of a State shall be deemed to have been duly elected where, there being two or more candidates -

(a) he has the highest number of votes cast at the election; and

(b) 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.

(3) In default of a candidate duly elected in accordance with subsection (2) of this section there shall be a second election in accordance with subsection (4) of this section at which the only candidates shall be -

(a) the candidate who secured the highest number of votes cast at the election; and

(b) one among the remaining candidates who secured a majority of votes in the highest number of local government areas in the State, so however that where there are more than one candidate with a majority of votes in the highest number of local government areas, the candidate among them with the next highest total of votes cast at the election shall be the second candidate.

(4) In default of a candidate duly elected under subsection (2) of this section, the Independent National Electoral Commission shall within seven days of the result of the election held under that subsection, arrange for an election between the two candidates and a candidate at such election shall be deemed to have been duly elected to the office of Governor of a State if -

(a) he has a majority of the votes cast at the election; and

(b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the local government areas in the State.

(5) In default of a candidate duly elected under subsection (4) of this section, the Independent National Electoral Commission shall within seven days of the result of the election held under that subsection, arrange for another election between the two candidates to which that sub-paragraph relates and a candidate at such election shall be deemed to have been duly elected to the office of governor of a State if he has a majority of the votes cast at the election.

Is the candidate mentioned by this section PDP or a person? If the answer is a person, because the PDP has been found unfaithful to any Court ruling, where then is the person who contested the election on behalf of the PDP in this election? The answer is obvious, no person, since it was PDP (which this court by implication has been proclaimed superior to the candidate mentioned in the constitution) which violated the rule of law according to the Supreme Court and not a person.

It becomes very clear then that PDP cannot be the 'person/candidate' referred to in section 179 of the 1999 constitution

However, can we leapfrog from that assertion of the guilt of the PDP and the court below, and then award a man who did not contest an election in a presidential type constitution with a very weak whip system an election he did not contest? As far as we know, the person presented by a party in this kind of system sinks or floats by his/her platform and personality and not the party's. Whereas in the Whitehall type system, the party manifesto is more supreme and a win by a candidate can be construed (debatable!) as a win by the party.

In all this back and forth, the other parties are lost in the shuffle; what exactly is the sin of the other parties? If the answer is none, and we also know that the Supreme Court is not constitutionally mandated to order a new election, did the remedy fashioned by the Supreme Court all inclusive? If it is not all inclusive and the other parties played by the rule and spent a lot of money to prepare for the election, is the remedy fashioned by the Supreme Court appropriate? Of Course, not! A reasonable remedy without ordering a new election (since they do not have that power) is to conclude in their judgment that no election was held in Rivers State on April 14, 2007. As a matter of fact, you cannot hold an election if a candidate who is legally presented is indisposed by reason of illness or other valid indisposition, even according to the Nigerian Electoral law! This action would have turned the case right back to INEC since the pronouncement of the Supreme Court is binding on all parties involved.

 
 


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