By Aloy Ejimakor
On January 29, 2016, the Supreme Court made a landmark, and now a highly
controversial ruling recognizing the Oguebego faction of the Anambra PDP
Exco as the authentic party leadership in that State. Since that ruling,
there has been a rash of divergent interpretations, the most notable being
the postulation that all the legislators (Federal and State) issuing from
the felled Emeakayi faction have, without more, been nullified; and the
candidates rejected from the Oguebego faction shall now be sworn-in. Of
all the interpretations of the true reach of the judgment, this particular
one is the most over-broad and therefore wrong – for the following
reasons:
First, at page 37 of the judgment, the Court stated that the case “was not
about the conduct of a primary election nor a dispute over which organ of
the political party i.e. the PDP that has the authority and competence to
conduct a primary election”. For avoidance of doubt, this very statement
was gleaned, and adopted by the Court from the pleadings filed by the
Counsel to Oguebego – the lead appellant and beneficiary-in-chief of the
judgment. Under the doctrine of stare decisis, this very part of the
ruling constitutes the ratio of the judgment and should therefore form the
kernel upon which the true reach or limits of the judgment can be
determined.
Second, the ‘candidates’ now seeking to cash-in on the judgment, most
notably Annie Okonkwo, Chris Ubah, and Prince Emeka were not parties to
the suit. It’s only Oguebego and his Exco that were parties to the suit.
Thus, the judgment bears benefits only to Oguebego and his Exco – going
forward, and thus cannot relate back to, willy-nilly, award the
legislative seats won by PDP to the extant candidates produced by the
Oguebego faction.
Third, Chris Ubah, etc, (non-parties in the suit), and even Oguebego (the
party-in-chief) never requested the Supreme Court to declare them the duly
elected legislators. So, given that a Court never gives a relief not
prayed for, the judgment stayed true to its limits by tellingly stopping
short of declaring the Oguebego candidates the new occupiers of the
legislative seats at issue. The sole departure – in recent times – from
this universal rule was the case of Amaechi, but which later was repealed
by Section 141 of the Electoral Act, and thus is no longer the lex loci
(the law of the land).
Fourth, and to be clear, Section 141 prevents the Courts from declaring a
candidate a winner if he didn’t participate in ALL the stages of the
election. None of the candidates springing from the Oguebego faction
participated in the general election, either factually or legally, even
though they have argued that they continued with their ‘campaigns’ as
non-candidates. This argument is a fallacy because the ‘participation’
contemplated under Section 141 is one in which the candidate is the
‘statutory’ and contemporaneous candidate on the ballot, not a
non-candidate who engaged in a self-serving ‘token’ campaign in the
expectation of, later in time, thwarting the fell consequences of Section
141.
Fifth, it’s not the State Exco, standing alone, that finally, exclusively
or ultimately determines who gets the PDP federal legislative nominations.
It is, instead, the PDP National Exco; or at least in conjunction with the
State Exco, but with the National Exco having the upper hand. That much
has been upheld by the Courts in all cases in pari materia, including,
most recently, the Court of Appeals in its judgment nullifying the
election of Uche Ekwunife.
On the basis of the foregoing, it is my considered opinion that INEC
should immediately seek the legal opinion of the Attorney-General of the
Federation on whether it can overreach the judgment and proceed with a
whole-scale administrative (not judicial) nullification of all the
legislative seats affected. If the AGF’s gavel falls in favor of such
nullification, INEC shall then proceed with a re-run poll in Anambra South
and North only, but not in Anambra Central which is still subject to
another primary as ordered by the Court of Appeal. Conversely, it is quite
plausible that the AGF might instead wax conservative (and legally more
sound) and thereby bear on the side of new primaries, instead of a
straight re-run sans primary.
Failing AGF’s timely intervention, parties may be emboldened to
re-approach the Courts with a flurry of new suits seeking interpretations
that are advantageous to their divergent positions. If this happens, the
easiest injunctions that will ensue will be the ones seeking to stop a
free-run swearing-in of all the candidates from the Oguebego line-up; and
a return of Annie Okonkwo as the candidate, without a new primary, for
Anambra Central. To be sure, this later one is still a subject of a
subsisting and potentially meritorious suit by Dr Obiora Okonkwo, one of
the combatants for the Anambra Central PDP senatorial nomination. Plus,
Victor Umeh of APGA will most likely proceed to Court and will, in all
likelihood, quickly succeed in stopping PDP from submitting Annie
Okonkwo’s name if it turns out that he is not a product of a new primary
participated in by all or any of the still-interested aspirants from the
ill-fated PDP primaries of late 2014.
Aloy Ejimakor, a lawyer writes from alloylaw@yahoo.com