Posted by By GODWIN TSA, Abuja on
The Supreme Court on Monday kept the presidential ambition of Vice President Atiku Abubakar alive when it held that the Independent National Electoral Commission (INEC) has no powers to disqualify candidates already cleared by their political parties.
The Supreme Court on Monday kept the presidential ambition of Vice President Atiku Abubakar alive when it held that the Independent National Electoral Commission (INEC) has no powers to disqualify candidates already cleared by their political parties.
In a unanimous decision, the apex court set aside the judgment of the Court of Appeal, which held that "for the avoidance of any doubt, having regard to the clear provision of the Constitution and the Electoral Act discussed above, it is my considered opinion that the appellant (INEC) has the power and authority not only to screen candidates sent to it by political parties, but to also remove the name of any candidate that failed to meet the criteria set out by the constitution without having to go to court."
Not satisfied with the judgment, Atiku, through his team of lawyers, led by Mr. Rickey Tarfa (SAN) filed a notice of appeal before the Supreme Court. Justice Iorgyer Katsina-Alu, who read the lead judgment of the Supreme Court, said he was satisfied with the submissions of counsel to Atiku, Mr. Rickey Tarfa (SAN) that the judgment of the appellate court was in error.
Responding to the judgment, Vice President Atiku Abubakar was full of praises for the judiciary for its courage and steadfastness. He said the judgment was victory for democracy and the rule of law.
According to him, "I thank the Nigerian judiciary for saving this country from a seemingly one party rule and dictatorship. The judicial pronouncement has given confidence that it is indeed the last hope for the sustainability of the nation's nascent democracy."
Describing the April 14 governorship and House of Assembly elections as "worse than armed robbery," Atiku said he has lost confidence in INEC as the electoral body lacks the integrity to conduct a free and fair elections.
In setting aside the judgment of the Court of Appeal, the Supreme Court affirmed the judgment of Justice Babs Kweumi of a Federal High Court, which held that the INEC has no powers to disqualify any candidate who has been cleared by his political party from contesting the April 2007 general elections.
Earlier, attempts by counsel to INEC, Mr. Joe-Kyari Gadzama (SAN) to stop the court from proceeding with the hearing of the appeal was rejected as the presiding justice, Katsina-Alu, expressed the readiness of the court to proceed with the matter in view of time factor.
Gadzama had wanted an adjournment to enable him provide "a better presentation of the subject matter before the court giving the circumstances of the case."
This request was, however, turned down by the court on the grounds that time was of the essence in the case.
In arguing the appeal, Tarfa prayed the court to set aside the judgment of the Court of Appeal on the grounds that it was in error. He contended that the appellate court, in arriving at its decision, failed to consider the necessary provisions of both the 1999 constitution and the Electoral Act, 2006. Particularly, he said the provisions of sections 6 (1), 6 (6), 36 (1) and (5) of the 1999 constitution, section 32 (4) and (5) of the Electoral Act was not taken into considerations by the Court of Appeal in interpreting section 137 (1) of the 1999 constitution.
Counsel to INEC, Joe-Kyari Gadzama (SAN), urged the court to uphold the judgment of the Court of Appeal as the true position of law and dismiss the appeal.
After the adoption of their respective briefs, the seven justices of the Supreme Court retired into their chambers for one hour and when they returned, they passed their judgment.
The court has, however, fixed June 29, 2007, to give reasons for its judgment.
It would be recalled that President of the Court of Appeal, Justice Umaru Abdullahi, who delivered the lead judgment of the court, held that the submissions made by counsel to Atiku, Rickey Tarfa (SAN) that screening of candidates was exclusive responsibility of the political parties, in view of his reliance on the case of Ajadi vs Ajibola, a Court of Appeal decision, which upheld that the right of the appellant to screen candidates, "seriously undermine his position." He noted that not only are the words of section 137 of the Constitution clear and unambiguous, "it is common ground that it provides for disqualification of a candidate aspiring to the office of the president or vice president."
The judgment of the appellate court, which was read by Justice Rabiu Danladi Muhammed, explained that, what was in contention was whether the appellant, the body charged with the power to organise, undertake and supervise all elections to the office of president, vice president, etc, as well as carry out such other functions as may be conferred upon it by an Act of the National Assembly, pursuance of paragraph 15 of the Third Schedule, can ensure the observance of the provision of Section 137 (1) of the Constitution. It was in the view of the learned counsel to the appellant that it could.
According to the judgment, which received the blessings of other justices, "there is merit in the submission of the learned senior counsel for the appellant since the maker of the constitution would not make these provisions for the fun of it. I am of the firm opinion that if the appellant (INEC) decided to close its eyes to the infraction of the provisions of the constitution, it would be tantamount to abandoning the heavy responsibility placed on it by the provisions of the constitution to wit to organise, undertake and supervise the conduct of a credible election.
"Apart from this constitutional powers, it is inherent in Section 32, particularly subsection (1) and (2) of the Electoral Act, that the appellant has a primary duty to ensure compliance with the provisions of the constitution. The section had already been quoted in this judgment, but to reinforce my view, it is relevant to recite sub-section (2) of Section 32 of the Electoral Act which state: ‘(2) The list shall be accompanied by affidavit (sworn to by each candidate at the High Court of a state, indicating that he has fulfilled all the constitutional requirements for election into that office.'"
The appellate court noted that the whole case of the respondent/cross-appellant was squarely hinged on Section 32(4) and (5) of the Electoral Act 2006.
Justice Abdullahi said: "In my considered view, these two sub-sections deal with an entirely different situation. The two sub-sections when read together, provide an opportunity for any individual, after preview of the personal particulars of a candidate published by the appellant in the constituency, where the candidate intends to contest the election can, on reasonable grounds, believe that there was false information given by such a candidate to the High Court to challenge his candidature. It will be a mere circus show for the commission to be expected to go to court first to seek a declaration before treating the information supplied to it.
Atiku had posed the following questions for the determination of the court.
o Whether the defendant/respondent as an executive, non-judicial agency of government, has the power, under the provisions of the Constitution 1999, to apply, invoke or enforce against the 2nd plaintiff/appellant, a presidential candidate nominated/sponsored by the 1st plaintiff/ appellant for the 2007 general elections, the disqualification provided in section 137(1) (i) of the constitution read in the context of other relevant provisions of the constitution, in particular section 6 (1) & (6), 36(1), (4), (5) and (6) - (12) as well as in the context of the system of constitutional democracy established for the country by the constitution. (Grounds 1 and 6).
o Whether the defendant/respondent, as an executive non-judicial agency of government, has the power, under the provisions of the Electoral Act 2006, to disqualify or screen out candidates for election, including the 2nd plaintiff as a presidential candidate for the 2007 general election. (Grounds 2 and 3).
o Whether the court below was right in failing to take into account the manifest differences between the provisions of Section 21 of the Electoral Act, 2002 and Section 32 of the Electoral Act, 2006 as regards the vesting of power of disqualification of candidates in the Courts. (Grounds 4 and 5).