By Ejike Wobodo
IN the past weeks, several insinuations and arguments have dominated the air about a possible repeat of the Chibuike Rotimi Amaechi scenario of 2007 in Rivers State, where he became governor without participating fully in the governorship election.
Senator Magnus Ngei Abe, a member of the All Progressives Congress, APC, in Rivers State, is challenging the nomination of Mr Tonye Cole as the candidate of the APC. Abe wants the Federal High Court to declare him the candidate of the APC for the 2019 governorship election in the state.
Apart from the manifest dissimilarity in the facts and circumstances of both cases, the Chibuike Amaechi situation is such that can never happen again, having been prohibited by Constitutional Amendment.
After the Supreme Court in 2007 declared Amaechi governor of Rivers State relying mainly on the principle, “ubi jus ubi remedium”, the National Assembly felt it was a rather too benevolent remedy to allow a person who did not fully take part in the rigours of an election to become a governor. Therefore, in the Fourth Alteration cited as Constitution of the Federal Republic of Nigeria (Fourth Alteration No.21), 2017, the National Assembly amended the Constitution.
Section 285(13) of the Constitution (as amended) provided thus: “An election tribunal or court shall not declare any person a winner at an election in which such a person has not fully participated in all stages of the election”. This section should put that speculation to rest.
The next few points that Abe’s legal and media team have deliberately hidden from their supporter and the public are the issues of the timing of the case and jurisdiction of the Federal High Court to entertain same. My arguments here are made without prejudice to the various submissions that have been canvassed at the Federal High Court.
The best way to drive home my position is to take a liberal stand point that tilts the facts to the side of Senator Abe. In other words, assume all the facts are true from Senator Abe’s stand point. Having said that, it is as important to also assume and highlight that Senator Abe’s case is a Pre-election matter which has been regulated by time in the same Fourth Alteration. Section 285(9) of the Constitution. The section says that such matters (pre-election matter) must be commenced not later than 14 days from the event, decision or action complained about.
Firstly, if Abe insists that his “parallel primary” is the correct one, then his cause of action arose against APC the day following the primary where APC recognized Tonye Cole’s primary election instead of his; Senator Abe’s cause of action against INEC arose the day APC submitted Tonye Cole’s name to INEC and INEC received it. The question you should ask and answer yourself is whether Senator Abe’s case was within 14days from these dates? The limitation of time in pre-election matter is not just created by an ordinary statute but by the Constitution itself.
Secondly, if Abe in his case, made a slip by mentioning Tonye Cole’s name as he actually did, he puts his case into a tighter legal corner. It becomes obvious that he was aware of the Primary election that produced Tonye Cole, especially in view of the fact that his name featured also as an aspirant in that primary election. So, his 14 days within which to challenge the outcome of that primary began to run from that day. Again, ask and answer it yourself, did Senator Abe file his case within 14 days from that day?
Where he fails to make reference to Tonye Cole or the primary that produced Tonye Cole, he raises an obstacle of locus standi for himself. By reason of Section 87(9) of the Electoral Act, only an aspirant who participated in a primary election can question the outcome. Can he actually and legally speaking pray the court to displace Tonye Cole as candidate of the APC without mentioning Tonye Cole’s name, even in a single paragraph?
On jurisdiction, does the Federal High Court really have the jurisdiction to entertain that matter in view of the fact that: (1) Senator Abe is challenging APC’s refusal to recognize him as the candidate, and where the only relief against INCE is ancillary? This is having regards to the recent decision of the Supreme Court in Suit No. SC/384/2017: Stella Oduah vs. Senator Margery Chuba Okadigbo & Ors (judgement delivered on 01/06/2018); and (2) more so where Senator Abe is not challenging “any primary election of the APC” for non-compliance with the provision of the Electoral Act. It is only a challenge of non-compliance that confers jurisdiction on the Federal High under Section 87(9) of the Electoral Act to hear a pre-election matter bothering on Primary election.
If he is challenging non-compliance, is it possible that he could successfully conclude that case without mentioning to the court which primary election exactly that did not comply with the Electoral Act or any other prescribed guideline? If he does, it brings his cause of action again to the date of the indirect primary that produced Arch Tonye Cole. It is indeed a vicious circle that cannot be corrected or avoided.
Did Senator Abe’s case pass these unassailable and established tests and positions of the law?
From all legal indications, Abe is no longer fighting to become Governor in this dispensation, after all he is a lawyer and legislator, who should have full understanding of the development and reforms in the Nigerian Electoral Laws. I therefore tend to agree with the school of thought that argues that Senator Abe is only working to scuttle the chance of the APC, to enable Governor Nyesom Wike return. That way, there will be a third chance for him (Senator Abe) to attempt again in 2023. The argument is that should Tonye Cole win and probably run for a second term, Senator Abe would have been out of political scene long enough to make him lose supporters and political relevance. For them, Abe is merely playing a spoiler role.
Although this alleged plot may not be far from the truth, it certainly has not taken into consideration the unseen factor (God) and the lessons of yesteryear. In 2015, it was the same agenda and plot: “If Dakuku Peterside fails, then there will be 2019 for Senator Abe to attempt again”. Guess what, that hour planned and hoped for is here with us, but has it brought the expected fortune? The answer is in the negative. It did not, instead it threw up Tonye Cole. So, when planning to repeat the same thing in 2019, hoping that 2023 will bring you another fortune and opportunity, have you spoken to God or have you assumed or written off His position in the affairs of men?
Wobodo is resident in Port Harcourt