– By Aloy Ejimakor
The Nigerian Constitution and the Electoral Act clearly stipulated the
minimum qualifications for seeking elective public offices. For purposes
of this essay, I will classify the qualifications in two broad
categories – patent and latent. Examples of the patent ones are evidence
of citizenship; educational qualifications; and nomination by, and
membership of a political party. Latent ones include conviction for
enumerated offenses, etc.
For the patent ones, INEC is legally bound to ‘reject’ a candidate who
fails (or whose party fails) to provide evidence that he possesses the
qualification stipulated by law. As in the caption of this essay, notice
that I did not say that INEC can legally ‘disqualify’, as such drastic
measure still lies with the courts as we shall presently see in some
instances, especially of the latent kinds.
Let me illustrate: Say, for instance, a candidate is presented to INEC
without proof of his membership of a political party and his nomination
by that party? Is INEC bound to accept the candidate and tell those
challenging such candidate based on party non-membership and nomination
to proceed to court? If such should happen, then you can say that INEC
might as well accept independent candidates, factional candidates,
underage candidates, non-citizen candidates, or even worse.
Now, analyze this: Why does INEC believe that it can ‘reject’ certain
candidates on grounds of invalid nominations (due to factions, faulty
congresses, etc) but feels conveniently powerless to do so in a clear
case of failure to provide documents of claimed (and required) academic
qualification?
And what about age? Should INEC accept a toddler who somehow got
nominated by a political party by dint of some mystic interventions, or
when it is, perchance, presented as something of a joker on INEC? What
if the toddler crawled into INEC’s office or arrived by way of a baby
pram pushed by his mother as the ‘chairman of his political party’,
shall we then just simply say: ‘Oh! Leave him alone, it’s for the
courts to determine that he is a child and then may disqualify, not
INEC’. Laughable, right?
I dare say, therefore, that the ‘go-to-court’ provisions contained in
the Electoral Act do not apply to any of the patent qualifications INEC
can, without more, determine on its own, on the spot. Those provisions
apply only to the latent (dis)qualifications, such as conviction for
offenses, which expectedly are prone to willful concealment by a
candidate hit by such a disqualifying factor; or because it can
sometimes become arguable, as in the case of James Ibori. Better yet,
you might wager that Buhari could have been saved by ‘go-to-court’ if he
had just claimed high school equivalency which, if challenged, becomes a
contestable issue of qualitative judicial analysis beyond the limited
administrative purview of INEC.
Now that we have seen the folly of this ‘go-to-court’ sing-song, let us
examine where candidate Buhari fits in. Recall that possessing the
minimum educational qualification is a patent requirement, the
documentary proof of which lies with the candidate before his nomination
form is accepted by INEC. It is not enough to just assert or aver, as
Buhari did, that he possessed such qualification without attaching a
scintilla of proof. Affidavits won’t cut it as what is required here is
what the law universally defines as ‘best evidence’, represented by
either the original or a certified true copy of the qualification
claimed. But assuming such candidate managed to get through with a mere
affidavit as Buhari had done, it becomes more damnable if the affidavit
later turns untrue. That’s the kernel of the recent (unreported)
judgment of the Supreme Court in Modibbo v. Usman, SC/790/2019,
delivered on 30/7/19.
But returning to the inherent powers of INEC, where such proof, other
than a mere affidavit, is not forthcoming, INEC is bound to ‘reject’
the candidate, not ‘disqualify’. The difference between INEC
‘rejection’ and court ‘disqualification’ is this: While a rejected
candidate can be accepted at a later time when he provides the required
documentation, and within time, a disqualified candidate remains
perpetually disqualified if he had exhausted his right of appeal. At
common law, it’s he who asserts that bears the burden of production. It
will be absurd, therefore, to expect a third party to go on a fishing
expedition, looking for a certificate of which the proponent could not
even produce in the first place; or disproving later-day alternative
‘certificate’, the submission of which is unarguably time-barred.
Better yet, it challenges your credit when, in proof of one particular
qualification, you end up producing different versions thereof,
purporting multiple origins. To all of this extent, Atiku’s lawyers
found themselves unfairly bearing an evidentiary burden they shouldn’t
have borne in the first place.
It neither makes any legal sense, nor does it comport with the intent of
the National Assembly when it amended the extant law, adding the
additional requirement of production of documents when the previous law
did not require so. It is also not the ratio in the Supreme Court
judgment that the ‘go-to-court’ crowd are always citing to back up the
argument that INEC lacks the power to ‘reject’ a patently
undocumented nomination. This notion survives on the flawed legal theory
that ‘rejection’ means the same thing as ‘disqualification’.
Finally, it is probative that Nigerian army had then released statement
disclaiming Buhari’s assertions that the certificate at issue (WASC) is
with ‘army records’. The army had also stated that, though Buhari
had – at his commission in 1961 claimed (or affirmed) – that he
possessed WASC, he never provided a copy, nor was the army mindful to
contemporaneously verify the claim. And then this: If Buhari could not
provide his WASC to the army and none to INEC during his previous runs
for the presidency, how then did it suddenly turn up this late in time?
This is a material legal question that should hardly be resolved in his
favor.
Aloy Ejimakor wrote in from Washington, DC, USA.–
Aloy Ejimakor, Esquire
Managing Partner
ADULBERT LEGAL SERVICES
11 Ukpo Close, Garki
Abuja FCT, Nigeria
+234 803 265 1660 aejimakor@gmail.com