Still on Edo governor’s prerequisite election qualification

 by Hanson Aimofumeh 

I write as a citizen of the Federal Republic of  Nigeria, who  voted at the last governorship election in Edo State, held on July 14, 2012.
I also want to submit that like many other Nigerians, I have the ability to read, write, understand and communicate in English language, particularly the ability to read and understand the provisions of the 1999 Constitution (as amended) and the Electoral Act 2010 (as amended).
The courts or election tribunal on their part, have a statutory obligation to interpret the laws.  Some of these laws are highly technical; others are so plain and straightforward and therefore pose no difficulty to even a layman.  It is, therefore, on this ground that I feel competent to discuss the issue of qualification of a candidate to run for the office of a governor of a state.
The 1999 Constitution provides qualifications for the office of a governor.  These qualifications include, but are not limited to citizenship, age, education and membership of a political party.
Let me restrict myself to one of these qualifications, namely educational qualification which was one of the grounds of the Petition filed by General Charles Airhiavbere (rtd.) against Governor Adams Oshiomhole of Edo State.  The retired army General had alleged in his petition that Governor Oshiomhole did not possess the minimum educational qualification to run for the office of governor in the last governorship election in the state in which I voted, having been registered as an eligible voter.
My intention here is not to say how right or wrong the tribunal was in its ruling.  Rather, I want to use my constitutional right to express my opinion on a matter the tribunal has passed a ruling.
The Constitution of any country is not a storybook.  It provides the dos and don’ts of her citizenry and any infraction of its provisions attracts sanctions.  If the constitution of a country provides qualifications for certain offices, such provisions must be met.  In other words, they are not optional.  They are not only conditions precedent to an election, they are also conditions subsequent  to an election in the event of victory. If an elected candidate falls short of any of these qualifications, he must immediately vacate his office. That is to say, it is a continuing warranty for the office holder.
As I said earlier, I have read the 1999 Constitution (as amended) as well as the Electoral Act 2010 (as amended) and did not find a portion of the constitution or Electoral Act that prohibits a candidate from challenging the qualification of his opponent after an election.
Section 31 (5) & (6) upon which the tribunal predicated its judgment did not expressly or impliedly prohibit a candidate from challenging the election of another candidate who has not  met the minimum educational qualification.  In fact, the sub-sections in question cast light on perjury.
Paragraph 24 of the petition filed by Charles Airhiavbere which the tribunal struck out reads “Your petitioners aver that the 1st Respondent is not qualified to contest the said Governorship Election in Edo State, having not met the minimum qualification to contest for the said office of Governor of Edo State as provided for in the 2010 Electoral Act (as amended)”.  Honestly, I do not see how this paragraph, which questioned the qualification of the Governor, as envisaged by section 138(1)(a),  offend section 31 (5) & (6) which mirrored perjury and not qualification.  
I repeat, section 31 (5) & (6) which the tribunal relied upon relate to where a person has reasonable grounds to believe that a candidate for an election has committed perjury.  Section 31 (5) & (6) read:
Section 31 (5) – Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, high court of a state or FCT against such person seeking a declaration that the information contained in the affidavit is false.
Section 31 (6) – If the court determines that any of the information contained in the affidavit or any document submitted by the candidate is false, the court shall issue an order disqualifying the candidate from contesting the election.
What happens if no false information of document is submitted but a case when documents submitted did not meet the minimum requirement?
 Interestingly, no mention of qualification or non-qualification of a candidate was made in those subsections.  I therefore wonder why the tribunal equated perjury (giving false information on oath) with qualification or non-qualification of a candidate for an election.
It is unfortunate to note that rather than apply this momentous provision, section 138 (1) (a) of the Electoral Act 2010 (as amended), which deals expressly with qualification, the tribunal went on a wild goose chase when it turned to the section which deals with perjury.
Section 138 (1) (a) provides (1) An election may be questioned on any of the following grounds, that is to say: That a person whose election is questioned was, at the time of the election, not qualified to contest the election.
The judiciary has a duty to nurture our democracy to maturity by invoking the appropriate sections of our laws in the event of litigations no matter who is involved.
The issue of qualification is a fundamental constitutional requirement.  If a candidate fails to fulfil it, his candidature can be challenged.  If he is already elected, whether by design or default, his election can also be challenged before the tribunal in the spirit of section 138 (1) (a) of the Electoral Act 2010 (as amended). It is my considered opinion that section 31(5)&(6) of  the Electoral Act cannot circumvent a constitutional requirement. On  the  contrary, the section is intended to ensure strict compliance with the constitution.
No law can stop a constitutional requirement.  I repeat, no law can stop a constitutional requirement let alone when no law has so done in this case .  In this regard, I am guided by recent decisions of the Appeal Courts and the Supreme Court of Nigeria on the issue of qualification  which,  unambiguously, held that no law or rules of procedure can inhibit a candidate, who has within his knowledge, that a party to an election has not met the constitutional requirement.  In the same vein, no law can stop such a candidate from bringing such information to a tribunal.
In an Appeal Court judgment in Sokoto on September 23,2011 by Sidi Dauda (JCA), leading two other justices of the court, on the issue of qualification,  held “If a candidate is qualified constitutionally he is qualified, if he is not he is not, there is no roundabout about it”  The court went further to say “The qualification to contest an election from the robust constitutional provisions is a condition precedent for a candidate to contest or to participate in an election”.
Two recent judicial pronouncements on qualification  made on February 24, 2012 at the Supreme Court of Nigeria by Walter Samuel Nkanu Onnoghen (JSC), leading four other Justices of the Supreme Court, have put the issue of qualification beyond argument.
Aimofumeh wrote in from Lagos.