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.
Members of a group, the Biafra Zionist Movement (BZM), yesterday organised a peaceful rally in Lagos.
