A Fearless And Bold Judiciary As An Antidote To Impunity: (By Sylva Ogwemoh SAN, FCIarb(UK)

As soon as the Independent National Electoral Commission
(INEC) released the time table for the conduct of the
2019 General Elections, the various registered
Political Parties set the machinery in motion for the conduct of
Primary Election in line with the provisions of the
Electoral Act 2010 (As Amended).

While the conduct of Primary Election was smooth in many states
of the federation, the story was not the same in States like
Rivers and Zamfara particularly under the
All Progressive Congress Party (APC) being the
Ruling Party in Nigeria. The All Progressive Congress
Party in Rivers State was barred by the Supreme Court from
participating in the 2019 Election because of its
flagrant disobedience of lawful orders from a Court of competent
jurisdiction, the High Court of Rivers State.

In Zamfara State, like the case of Rivers State, two factions of
the All Progressive Congress Party have been
enmeshed in legal tussle over its primary election leading to the
2019 General Election. While one faction claimed
that the party conducted primary election on the
3^rd and 7^th October 2018 for
the Governorship, National Assembly and State House of
Assembly Election, another faction said there were no
primary elections conducted in Zamfara State under
the All Progressive Congress Party. The Courts
were therefore called in to resolve the controversy.

The High Court of Zamfara State in resolving the controversy
surrounding the primary election of the All Progressive
Congress Party held on 25^th January
2019 that the party conducted primary election in Zamfara
State, and ordered the Independent National Electoral
Commission to accept the list of candidates submitted to
it by a faction of the party. The other faction not being satisfied
with the judgment of Honourable Justice Shinkafi of the High Court
of Zamfara State appealed to the Court of Appeal and the Court of
Appeal in a well-considered judgment set aside the judgment of the
High Court of Zamfara State directing the Independent
National Electoral Commission to accept the list of
candidates submitted by a faction of the All Progressive
Congress Party in Zamfara State after having found that
there was flagrant breach of the Electoral Act
2010 and the All Progressive Congress
Party Guidelines for the conduct of the party’s primary
election.

The pronouncement of the Court of Appeal (Per Tom Shaibu
Yakubu JCA) is quite instructive and revealing and I wish
to quote from the judgment of the Court when it found as a fact
that no primary election was conducted in Zamfara State under the
All Progressive Congress Party for the
2019 General Election.

‘’From the provisions of paragraphs 14 and 20 of the
guidelines, there is very clear emphasis on the person to be
recruited for the purpose of conducting primary elections, both
paragraphs placed emphasis on recruiting persons from outside the
area where elections are to be conducted, the power to appoint the
7 man Committee is vested in the National Working Committee, PW1
stated in his evidence that Lawal M. Liman is the Chairman of the
party in Zamfara State, he is not a member of the National Working
Committee, he was not appointed by the National Working Committee
to conduct primaries, in the face of all these hard facts, he
crafted Exhibit 6 signed and sent list of allegedly successful
candidates to the Resident Electoral Commissioner Zamfara State,
forwarding list of successful candidates, and the list included his
name as a successful candidate, he is also one of the Respondents
in this appeal.

I must say it loud and clear, that Lawal M. Liman
the Chairman of All Progressive Congress Party in Zamfara State had
no slightest power to conduct primaries and forward list of
successful candidates to Independent National Electoral Commission.
He acted illegally against his party’s Constitution and guidelines
with respect to conduct of primaries. He had no authority or
slightest business conducting primary elections and forwarding list
of allegedly successful candidates including his name to
Independent National Electoral Commission. His action is
incongruous, patently bizarre and detrimental to healthy
competition in politics. It is also strange that PW1 insisted that
Primary elections were conducted, his stance was either founded on
ignorance or a calculated design to stick to falsehood and hoodwink
the lower Court. I must also add, that PW1 is not a reliable
witness because he has a mission and a purpose to serve. He is a
candidate and a product of the purported party primaries, hence he
has a stake in the purported primary election, which he tried to
defend by all means, all be it very unfairly.’’

A consideration of the relevant provisions of the Electoral Act,
particularly sections 31 (1) and 87 (1) of the Act, may throw more
light into the decision of the Court of Appeal regarding the
primary election of the APC in Zanfara State.

Section 31 (1) of the Electoral Act 2010 (as
amended) provides that:

“Every political party shall not later than 60 days
before the date appointed for a general election under the
provisions of this Act, submit to the Commission in the prescribed
forms the list of the candidates the party proposes to sponsor at
the elections.

The above provision of the law, takes me to section 87
(1) of the same Electoral Act the section also dealing
with primary elections provides as follows:

87(1). A political party seeking to nominate
candidates for elections under this Act shall hold primaries for
aspirants to all elective positions.

From the finding of the Court of Appeal, the provision of
Sections 31 (1) and 87 (1) of the Electoral Act 2010 (as
amended), and the All Progressive Congress
Party Guidelines for the Nomination of Candidates for the
2019 General Elections – Direct Primaries,
prescribed the mode of producing candidates for 2019
General Election. In this instance therefore, there is no
gain saying the fact that the procedure circumscribed by the
Electoral Act, and the APC Guidelines for the conduct of primary
election into the office of Governor, membership of the National
and State House of Assembly must be followed for the conduct of the
primary election to be valid in the eye of the law. This is so
because, the law is very clear that when a statute dictates a
certain mode of doing an act, then that method and no other must be
employed in the performance of the act. See Bernard Amasike
V. Registrar General, Corporate Affairs Commission (2018) LPELR –
456 (SC). See also CCB Nig. Plc v. A.G. Anambra
State (1992) 8 NWLR (Pt. 261) 528 at 556.

I am extremely sad that our Courts are often called upon to
perform the onerous and difficult task of interpreting our laws in
the face of obvious impunity and flagrant disregard of extant
provisions of our laws by political actors.

I say I am sad because the rules for the conduct of primary
election do not require a third party’s interpretation for their
observance by the participants in the electoral process who are
part and parcel of the making of the laws and designing the
procedure. However, the judiciary cannot shirk its sacred
responsibility to the nation to maintain the rule of law. It is
both in the interest of the government and all persons in Nigeria.
The law therefore, should be even handed between the government and
the citizens. This is why I have no hesitation in commending the
judicial boldness displayed by the Court of Appeal sitting in
Sokoto in the Zamfara State All Progressive Congress Party
Primary Election when it set aside the judgment of the
High Court of Zamfara State recognizing the primary election that
never took place from the evidence placed before the Court.

The statement must be made that the rule of law is the opposite
of the rule of power. It stands for the supremacy of law over the
supremacy of individual will. In this instance, I have no doubt in
my mind that the Supreme Court without hesitation will affirm the
sound judgment of the Court of Appeal. The law remains the same
that if an act is void, it is incurably void, and every other
proceeding which is founded on it is also bad and incurably bad.
For you cannot put something on nothing and expect it to stand. It
will surely collapse. This impunity and reckless disregard of our
laws must stop and the antidote is a bold and fearless
judiciary.

SYLVA OGWEMOH SAN, FCIarb(UK)