Eminent lawyers among them, Prof. Itsay Sagay (SAN), and Mr. Femi Falana, have differed with the Senate President David Mark and the Speaker of the House of Representatives, Mr. Dimeji Bankole, over the power of a court to declare a candidate winner of an election.
Sagay and Falana on Friday said that Mark and Bankole’s pronouncement that a court could not declare a candidate winner of an election was not only misleading, but unconstitutional.
The Senate President and the Speaker of the House of Representatives at different events had said that the new Electoral Act did not allow a court to declare a candidate a winner of an election.
According to them, what the court can do is to order a rerun.
The Action Congress of Nigeria and the Peoples Democratic Party had traded words on the section in a news report by THE PUNCH. While the PDP lauded the new Act, the ACN said it might challenge the said provision in court.
While the PDP members in the National Assembly explained the provision of Electoral Act on rerun elections, opposition lawmakers said the legislature must not interfere in judicial affairs.
Section 140(2) of the Electoral Act states, “Where an Election Tribunal or Court nullified an election on the grounds that the person who obtained the highest votes at the election was not qualified to contest the election, the election tribunal or court shall not declare the person with second highest votes elected, but shall order a fresh election.” This is a new clause introduced by the National Assembly.”
But Section 140 (3) of the Act reads, “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.”
Faulting Mark and Bankole, Sagay, said on Friday that the provisions of the constitution were very clear on what the courts can do.
“You cannot go for re-election where clearly there is a winner. Sections 134 and 179 of the Constitution are very clear,” he said.
Sagay stressed that the sections emphasised that the courts have to declare the person with the majority of votes or the highest number of votes as the winner.
He said the attempts of the PDP to keep on amending the law to get immunity for their electoral fraud would not work.
“It’s a demonstration of their villainy and criminality and I use these words deliberately. They want to tie the hands of the Court of Appeal from declaring who scores the highest. It has failed in this case,” he said.
Sagay added that the aim of the proponents of the idea was to get the court to order a rerun election in which they would have the chance to rig.
“The loophole which they cannot block however with the amendment is the Constitution. There is a constitutional provision which allows the court to declare the winner of the election in spite of Electoral Act because the Constitution is superior,” he said.
Also, Falana in a statement faulted the Senate President and the Speaker, saying they misled the nation when they said no court could declare a candidate a winner of an election.
He said, “it is crystal clear that the powers of a tribunal or court to declare as elected the candidate who scored the highest number of valid votes cast at an election has not been removed. Therefore, Messrs David Mark and Dimeji Bankole ought to withdraw their misguided statement and apologise to Nigerians without any delay.”
But the Deputy Leader of the Senate, Victor Ndoma-Egba (SAN), a PDP legislator, said Section 140 (2) was not smuggled into the 2010 Electoral Act.
Ndoma-Egba, in an interview with one of our correspondents, explained that when the bill came up for consideration, people were more concerned about the issue of who should be member of the National Executive Committee of political parties.
The clause which sought to include federal lawmakers in their parties’ NEC, was rejected by the National Assembly following a public outcry against the provision.
Insisting that Section 140 was debated, the Senate Majority Leader said the clause followed the due process of law-making, adding that it went through the second reading where every detail was considered.
“At that time, people did not consider this aspect as important. They focused on other controversial areas. No bill can be passed without the clause-by-clause consideration and that is what happened,” Ndoma-Egba added.
Defending the section, he argued that it was the electorate that should determine who won an election instead of the courts.
He said it was becoming a dangerous trend as the courts appeared to have taken over the responsibility of the voters in deciding who should govern them.
“We believe that this should not be the case, because the electorate should be allowed to decide the winner of elections. That power should not be taken away from them by the courts,” the Deputy Leader of the Senate said.
A member of the PDP and Chairman, House Committee on Rules and Business, Mr. Ita Enang, defended the inclusion of Section 140 (2), saying it would give all candidates a level-playing field for the re-run election.
Enang claimed that experiences had shown that some contestants were not prepared for the elections, but merely wanted to be listed as contestants.
“So, while their opponents worked so hard to win, their interest was to allege that there were irregularities and to seek the disqualification of the winner.
“That is not fair; we have said that the way out is for all of them to go to the poll again and test their popularity,” Enang added.
Also, Chairman of the Senate Committee on Water Resources, Senator Bassey Ewa-Henshaw, a member of the PDP from Cross River State, said the section was meant to correct the unfairness of disenfranchising a large section of voters in an election.
He said in a telephone conversation that hitherto judgements of courts faulting the credibility of elections and at the same time proceeding to declare a particular candidate as winner had implications of ensuring that only a section of voters would determine the emergence of a winner in an election.
According to Ewa-Henshaw, the new law is meant to ensure that every vote is counted and made to determine the actual outcome of the elections.
On whether the legislature was not overreaching its powers, he argued, “It is the business of the courts to interpret the law and not to make laws, whereas it is the responsibility of the legislature to make laws.”
He disagreed with the notion that the clause was forced on the other parties by the majority of PDP members, saying it was openly debated.
But, the Minority Leader of the House of Representatives, Mr. Femi Gbajabiamila, and the Senate Deputy Minority Leader, Senator Olorunibe Mamora, told our correspondents in Abuja that the PDP lawmakers used their majority number to “insist on what they wanted.”
By John Ameh, Olamilekan Lartey and Josiah Oluwole
Courtesy Of : Punch
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