With Due Respect, Learned Prof. Sagay Is Wrong! The
Supreme Court Did not Disenfranchise The Zamfara Electorate Because
the Electorate Could not have Validly Voted for Persons that were
Not Lawful Candidates in the 2019 Elections
(Democracy is Not government by the Majority;
Democracy is Government by the Majority who ACTUALLY, VALIDLY
Participate)
(An opinion by Sylvester Udemezue)
This comment is a general reaction to the news headline
titled ”Prof Sagay accuses Supreme Court of
disenfranchisement, ask APC to return to court over Zamfara,
Rivers” and published on June 01, 2019 on
https://www.google.com/amp/s/dailygist.co/sagay-accuses-s-court-of-disenfranchisement-ask-apc-to-return-to-court-over-zamfara-rivers/amp/.[1] Please
note that i still have a more specific, detailed rejoinder to the
respected learned professor because his (the prof’s) view on
Zamfara is, I think, with due respect, not representative of the
position of Nigeria’s extant law. A humbly, simple illustrative
explanation of the Zamfara State scenario is necessary, in order to
determine who truly is to blame for APC’s well-deserved loss of
Zamfara in the hands of the erudite judgement of the Supreme Court
of Nigeria 
. What does extant law say? Recall that the applicable
laws are (a) the Electoral Act, 2010 (as amended), (b) the
Constitution of the Federal Republic of Nigeria (CFRN), 1999 (as
amended), (c). Independent National Electoral Commission’s (INEC’s)
Guidelines and (d) Case Law (judicial precedent). Plus (e) common
sense, because common sense is not common. Common sense is the view
of the disinterested observer/person.
The law says that any political party that wants to validly
participate in a general election must organize primary elections
(nomination) out of which its candidates would emerge to be
presented to INEC as the party’s candidates to fly the party’s flag
in the general elections. See generally sections 31–38 of the
Electoral Act.
The law adds that the said primary elections (nominations), in
order to be valid, must be conducted in accordance with procedures
laid down by law. See section 87 of the Electoral Act, as
amended.
What is the effect of failure by a political party to conduct
any primaries or to conduct primaries that do not comply with
procedures laid down by law? The effect is simple: *the
party is deemed to not have conducted any primaries and as a result
to not have presented any candidates in the general
elections.
Why then did INEC accept APC’s candidates, since the
primaries were not validly carried out? INEC’s hands were tied! See
for example section 31(1) of the Electoral Act as amended which
provides that a political party shall not later than 60 days before
the date of the general elections submit to INEC the list of the
party’s candidates and INEC ”shall not reject or disqualify
candidates for any reason whatsoever.”
So, what is the effect if INEC has already helplessly accepted
political party candidates who didn’t emerge from VALIDLY CONDUCTED
PRIMARIES and the said INVALIDLY NOMINATED CANDIDATES have already
participated in the general elections? On the authority of AMAECHI
V. INEC (2007), the court is entitled, on an application by a
person entitled under section 87 of the Electoral Act, to set aside
the INVALID NOMINATION and nullify their ILLEGAL CANDIDATURE and
participation in the election, on grounds that, in the eyes of the
law, the political party who failed to conduct valid primaries
DID/DOES NOT HAVE ANY CANDIDATES in the general elections. And on
further grounds that something placed on nothing cannot
stand, as Hon Justice Nikki TOBI once said from the
bench. Specifically, the learned jurist (Hon Justice TOBI) had in
OWNERS VS ADENIJI (1993)2 NWLR(pt 274) held as thus: “One can add
something to something, but one cannot add something to nothing
because there will be nothing to receive the something. The
something which will have nothing to support it will fall away,
following Newton’s law of gravity or gravitation.” See also Lord
Denning’s declaration in the case of Mcfoy v. U.A.C. (1961) 3 All
ER 1169 at pg. 1172 that ”you cannot put something on nothing and
expect it to stay there, it will collapse.” Yes!!! A person cannot
claim to be a candidate in a general election if his nomination is
adjudged to be NULL and VOID: see Omehia’s fate in AMAECHI V. INEC
(2007).
How does this connect to Zamfara State? What the Supreme Court
said was/is that the Zamfara APC had failed to conduct any
primaries as required by law for purposes of nominating candidates
to fly the party’s flag in the March 2019 general elections,which
means (applying the principle in AMAECHI V. INEC and the
requirement of the law as set out above) that in the eyes of the
law, the party had NO candidates in the general elections.
The APC was not a lawful participant in the 2019 elections in
Zamfara state.
Consequently, all votes cast for “APC Candidates” were wasted
votes, being votes cast in vacuo & and for no candidates (or
for candidates that were INVALIDLY NOMINATED). Those wasted votes,
being valueless, must not be taken into account in determining the
winner of the election.
The law says that votes cast in an election should be used to
determine a winner. We need not debate the obvious fact that votes
wasted are as good as invalid/void votes and therefore are not a
part of the VOTES CAST for purposes of determining who wins.
Section 69 of the Electoral Act says that *”in any contested
election, the result shall be ascertained by counting the votes
cast for each candidate and subject to sections 133, 134, and 179
of the CFRN, the candidate that receives the highest number of
votes shall be declared elected.” I make two conclusions from
section 69. (a) only votes cast for VALID CANDIDATES are taken into
account in ascertaining the winner of a contested election. Since
APC’s candidates were invalid, unlawful candidates, votes cast for
such invalid candidates are not among “votes cast.” Such votes must
therefore be excluded in ascertaining the winner of the election.
(b). the candidate that received the highest number of votes cast
shall be declared elected. Since PDP received the highest number of
valid votes cast for lawfully nominated candidates, PDP candidates
were validly and appropriately declared winners by INEC. So, INEC
was perfectly right.
Taking out all the votes wasted on APC candidates (who were,
in the eyes of the law NO CANDIDATES), says INEC, PDP necessarily
wins and as such was duly elected (PDP having satisfied the
requirements of the Constitution using the REMAINING VOTES (the
valid, unwasted votes). PDP WAS THEREFORE ELECTED BY ZAMFARA
ELECTORATE. The PDP was supported by majority of voters who cast
their votes for VALID, LAWFUL CANDIDATES in the election. The
voters were not disenfranchised because they are the ones who
(whose valid votes)!elected the PDP. Still on the flimsy allegation of DISENFRANCHISEMENT, let
me humbly state also that the issue of disenfranchising the
people/electorate does not arise in Zanfara. People are said to be
disenfranchised when they are not allowed to cast their votes
during an election. The case of Zanfara is different. People who
had their PVC’s in Zamfara were ALLOWED to freely vote. But some
members of the electorate ignorantly WASTED their votes by casting
their votes for non-existing candidates: APC Candidates. Casting
your votes for a non-existing candidate is not synonymous with
disenfranchisement. That the electorate voted innocently but
ignorantly for non-existing candidates is not any excuse. Ignorance
of the law is not an excuse. Ignorantly voting for an illegal
candidate doesn’t render valid what the law sees as invalid. Voting
for a non-existing candidate is akin to placing something on
nothing and expecting it to state. Voting for illegal candidates is
like building your castle in the air: it would collapse like a pack
of cards.
Now, who is to blame for APC’s loss of ZAMFARA? You can’t blame
PDP! It’s not PDP that made APC to fail to conduct valid primaries!
And why blame the Supreme Court? Is the Court’s duty not just to
apply the law as it is? Have I not set out, above, the law as it
is? Why blame anyone for the fault of the APC in zamfara? Only the
Zamfara APC is to blame! No one else.
Some people say PDP which took over as a result of the mess-up
by the APC did not win by majority votes and that this negates the
principle of democracy as a system that promotes governance by the
majority. I respectfully disagree! The “majority” envisaged by
democracy is THE MAJORITY OF THOSE WHO ACTUALLY PARTICIPATED—-
i.e., majority of those who actually go out to validly cast their
votes for lawful candidates in the elections! In other words,
democracy represents governance by the party who wins/secures
majority of the VALID VOTES CAST in an election.
I again refer us to the famous declaration by Thomas
Jefferson: *”We in America do not have government by the majority.
We have government by the majority who participate.”* This
statement is truer of Nigeria. No government in the history of
Nigeria has ever been elected by the majority.
Example, President Buhari was said to have been voted in by
about 15 million Nigerians. I ask us, what’s the population of
Nigeria? Some say 200 million. But many agree it’s over 180 millim.
What percentage of 180 million is 15 million? If someone argues
that only about 85 to 90 million Nigerians had registered to vote
in the 2019 elections, then I ask this, are these 15 million voters
in the majority when you put that number against the about 90
million voters? Again, I ask us, how many of the about 90 million
registered voters actually “voted” in the 2019 presidential or
governorship elections? I answer: just a little above 27 million.
Which means only about 27 million (just about 29 percent)
out of the about 90 million registered voters (and about 15% of the
about 200 million Nigerian population) actually came out to vote in
2019! The questions may then be posed: (1) Did majority
of the 90 million registered voters vote in the 2019 elections? (2)
Did majority of the 200 million Nigerians vote in the 2019
elections? And to both is No!!!! Accordingly, can anyone validly
say we have a government supported by the majority of Nigerians (or
majority of Nigeria’s registered voters) at the federal level or in
any state in Nigeria?
The truth is, there is NO majority-supported power-political
Government or governance anywhere in Nigeria. So, the Jeffersonian
theory is absolutely apt!
Some others say that the right thing the Supreme Court
should have done was to nullify the Zamfara general elections and
order fresh elections. This school of thought is wrong. Absolutely
wrong, with due respect! The Supreme Court while sitting on the
Zamfara APC intra-party case had no powers to nullify the general
elections in Zamfara; the Zamfara case that went up to the Supreme
Court had and still has nothing, absolutely to do with the 2019
general elections, but with internal affairs of the APC. Besides,
the validity or otherwise of the 2019 general elections in Zamfara
was not an issue in the case before the Supreme Court; court is not
father Christmas. Further, a court of law can only exercise the
powers that it has; it couldn’t have given any powers it did not
have. Any order made outside the court’s statutory or inherent
powers is void. Only an election tribunal tribunal or election
appeal tribunal, sitting on the Zamfara general elections could
validly exercise powers to SET ASIDE a validly conducted general
election in Zamfara. See section 140 ofbthe Electoral Act as
amended. So, the Supreme couldn’t have given what it didn’t have.
The Supreme Court did the very best it could in the circumstances,
in my view!
I have also seen some people trying to import section 140 of
the Electoral Act in favour of their argument that the Supreme
Court should have nullified the entire General elections in Zamfara
and ordered fresh elections. I respectfully disagree with them.
*SECTION 140(2) OF ELECTORAL ACT DOES NOT APPLY TO THE PRESENT
ZAMFARA STATE SCENARIO. Section 140(2) doesn’t apply to Zamfara
because the Zanfara State general election was not nullified
neither was APC candidates declared NOT QUALIFIED to contest. What
happened in the Zamfara scenario is that the Supreme Court held
that the APC did not validly field any candidates for the general
elections, and as such did not HAVE any. Accordingly, as I have
stated above, votes cast for a party that did not validly field any
candididates (which means the party had no candidates at all) are
wasted votes, which must not be taken into account while
determining who the ultimate winner is. “NOT HAVING A CANDIDATE AT
ALL” is not the same as “HAVING A CANDIDATE WHO IS NOT
QUALIFIED.”
The former represents the Zamfara scenario. Hence, section 140(2)
Electoral Act would NOT apply. The decision of the Supreme Court
did not nullify the election on grounds that the candidates with
the highest votes cast (APC) were not qualified to contest. What
the court said is that the party that purportedly won HAD NO
CANDIDATES AT ALL as at the time of the election and as such could
not have won. You don’t win an election in which you didn’t
participate, as I said earlier. So, the question of being qualified
did not arise. It is when you have validly fielded a candidate that
the question of whether or not your candidate is qualified would
arise. APC did not field any, according to the Supreme Court. So
those votes cast for APC don’t count, being wasted votes.
Please note that some others still argue the Supreme court
should have allowed the APC to go and have fresh primaries. No!
That’s a legal aberration! A constitutional anomaly! And in common
sense, an absurdity! How could the party be given such a second,
underserved opportunity? Had the time for primaries not since
elapsed? There is time for everything! Says the Bible book of
Ecclesiastics in Chapter 3: *”There is a time for everything, and a
season for every activity under the heavens.”* SO IT IS UNDER
NIGERIAN ELECTORAL LAWS!! See sections 31 and 38 of the Electoral
Act. Section 38 specifically states that once ”more than
one person remains validly nominated,” INEC must proceed
to hold the general elections. This INEC has done. No going back.
PDP and APC were not the only parties in Zamfara
State. Now, one may ask, Did any external factors (as in “NOVUS
ACTUS INTERVINIENS”) interfere to disrupt APC’s party primaries in
Zamfara State? On what grounds would the Supreme Court be expected
to give the political party such a second opportunity? I
respectfully see none! The party, like others, had its time and
chances to conduct its primaries. But, unlike others, the party had
wasted its own opportunity due only to its own fault or default!
You can’t have back a lost time. One can’t blame anyone for one’s
own errors or deliberate defaults. So, the Supreme Court was right.
One must be held accountable for the necessary consequences of his
deliberate actions. Such is the case of APC in Zamfara!
Based on the above, I humbly conclude this short epistle by
holding the opinion that there is NO way anyone can validly argue
the Supreme Court judgement in respect of Zamfara APC amounted to a
sort of disenfranchising the electorate in Zamfara. The truth is
that, the eyes of the law, the Zamfara electorate had voted to
elect the PDP, not the APC, because the APC was not a part of the
election. Like Mr. Omehia in Rivers State of 2007 (see AMAECHI V.
INEC), the APC was a mere impostor in the Zamfara 2019 elections,
having not validly fielded any candidates. So said the Supreme
Court. *The Supreme Court did not nominate anyone for the APC in
Zanfara. The Supreme Court did not impose anyone nor any political
party on Zamfara! Like I said above, the Supreme Court did nothing
more than only interpret the laws of the land as they are! And as
we’re reminded by Oliver Wendell Holmes in The Path of the Law (10
Harvard Law Review 457 (1897)), “the prophecies of what the
courts will do in fact, and nothing more pretentious, are what I
mean by the law.”
Respectfully,
Sylvester Udemezue.
(UDEMS).