– By Aloy Ejimakor<\/p>\n
The Nigerian Constitution and the Electoral Act clearly stipulated the
\nminimum qualifications for seeking elective public offices. For purposes
\nof this essay, I will classify the qualifications in two broad
\ncategories – patent and latent. Examples of the patent ones are evidence
\nof citizenship; educational qualifications; and nomination by, and
\nmembership of a political party. Latent ones include conviction for
\nenumerated offenses, etc.<\/p>\n
For the patent ones, INEC is legally bound to ‘reject’ a candidate who
\nfails (or whose party fails) to provide evidence that he possesses the
\nqualification stipulated by law. As in the caption of this essay, notice
\nthat I did not say that INEC can legally ‘disqualify’, as such drastic
\nmeasure still lies with the courts as we shall presently see in some
\ninstances, especially of the latent kinds.<\/p>\n
Let me illustrate: Say, for instance, a candidate is presented to INEC
\nwithout proof of his membership of a political party and his nomination
\nby that party? Is INEC bound to accept the candidate and tell those
\nchallenging such candidate based on party non-membership and nomination
\nto proceed to court? If such should happen, then you can say that INEC
\nmight as well accept independent candidates, factional candidates,
\nunderage candidates, non-citizen candidates, or even worse.<\/p>\n
Now, analyze this: Why does INEC believe that it can ‘reject’ certain
\ncandidates on grounds of invalid nominations (due to factions, faulty
\ncongresses, etc) but feels conveniently powerless to do so in a clear
\ncase of failure to provide documents of claimed (and required) academic
\nqualification?<\/p>\n
And what about age? Should INEC accept a toddler who somehow got
\nnominated by a political party by dint of some mystic interventions, or
\nwhen it is, perchance, presented as something of a joker on INEC? What
\nif the toddler crawled into INEC’s office or arrived by way of a baby
\npram pushed by his mother as the \u2018chairman of his political party\u2019,
\nshall we then just simply say: \u2018Oh! Leave him alone, it’s for the
\ncourts to determine that he is a child and then may disqualify, not
\nINEC’. Laughable, right?<\/p>\n
I dare say, therefore, that the ‘go-to-court’ provisions contained in
\nthe Electoral Act do not apply to any of the patent qualifications INEC
\ncan, without more, determine on its own, on the spot. Those provisions
\napply only to the latent (dis)qualifications, such as conviction for
\noffenses, which expectedly are prone to willful concealment by a
\ncandidate hit by such a disqualifying factor; or because it can
\nsometimes become arguable, as in the case of James Ibori. Better yet,
\nyou might wager that Buhari could have been saved by ‘go-to-court’ if he
\nhad just claimed high school equivalency which, if challenged, becomes a
\ncontestable issue of qualitative judicial analysis beyond the limited
\nadministrative purview of INEC.<\/p>\n
Now that we have seen the folly of this ‘go-to-court’ sing-song, let us
\nexamine where candidate Buhari fits in. Recall that possessing the
\nminimum educational qualification is a patent requirement, the
\ndocumentary proof of which lies with the candidate before his nomination
\nform is accepted by INEC. It is not enough to just assert or aver, as
\nBuhari did, that he possessed such qualification without attaching a
\nscintilla of proof. Affidavits won’t cut it as what is required here is
\nwhat the law universally defines as ‘best evidence’, represented by
\neither the original or a certified true copy of the qualification
\nclaimed. But assuming such candidate managed to get through with a mere
\naffidavit as Buhari had done, it becomes more damnable if the affidavit
\nlater turns untrue. That\u2019s the kernel of the recent (unreported)
\njudgment of the Supreme Court in Modibbo v. Usman, SC\/790\/2019,
\ndelivered on 30\/7\/19.<\/p>\n
But returning to the inherent powers of INEC, where such proof, other
\nthan a mere affidavit, is not forthcoming, INEC is bound to \u2018reject\u2019
\nthe candidate, not \u2018disqualify\u2019. The difference between INEC
\n‘rejection’ and court ‘disqualification’ is this: While a rejected
\ncandidate can be accepted at a later time when he provides the required
\ndocumentation, and within time, a disqualified candidate remains
\nperpetually disqualified if he had exhausted his right of appeal. At
\ncommon law, it’s he who asserts that bears the burden of production. It
\nwill be absurd, therefore, to expect a third party to go on a fishing
\nexpedition, looking for a certificate of which the proponent could not
\neven produce in the first place; or disproving later-day alternative
\n\u2018certificate\u2019, the submission of which is unarguably time-barred.
\nBetter yet, it challenges your credit when, in proof of one particular
\nqualification, you end up producing different versions thereof,
\npurporting multiple origins. To all of this extent, Atiku\u2019s lawyers
\nfound themselves unfairly bearing an evidentiary burden they shouldn\u2019t
\nhave borne in the first place.<\/p>\n
It neither makes any legal sense, nor does it comport with the intent of
\nthe National Assembly when it amended the extant law, adding the
\nadditional requirement of production of documents when the previous law
\ndid not require so. It is also not the ratio in the Supreme Court
\njudgment that the ‘go-to-court’ crowd are always citing to back up the
\nargument that INEC lacks the power to \u2018reject\u2019 a patently
\nundocumented nomination. This notion survives on the flawed legal theory
\nthat \u2018rejection\u2019 means the same thing as \u2018disqualification\u2019.<\/p>\n
Finally, it is probative that Nigerian army had then released statement
\ndisclaiming Buhari’s assertions that the certificate at issue (WASC) is
\nwith \u2018army records\u2019. The army had also stated that, though Buhari
\nhad – at his commission in 1961 claimed (or affirmed) – that he
\npossessed WASC, he never provided a copy, nor was the army mindful to
\ncontemporaneously verify the claim. And then this: If Buhari could not
\nprovide his WASC to the army and none to INEC during his previous runs
\nfor the presidency, how then did it suddenly turn up this late in time?
\nThis is a material legal question that should hardly be resolved in his
\nfavor.<\/p>\n