*Testing electoral laws and guidelines to their limits

By Jide Ajani, Deputy Editor,

Why would the House of Representatives, under the leadership of Aminu Tambuwal, swear-in a member who did not participate in an election?  Discuss.

Well, to get the answer correctly, we have to remember Governor Rotimi Amaechi of Rivers State. And then clarification has to be sought on who actually swears-in a member of the House of Representatives.

The second issue is easily dealt with because it is the Clerk of the House of Representatives who performs the duty of swearing-in members and not the Speaker who, in this case, is Tambuwal.  Therefore, the call from a group in Akwa Ibom State, Eket Senatorial District Elders’ Forum, on account of this alleged act does not arise.

But why would Hon. Eseme Eyiboh be sworn-in as the member representing Eket/Ebeno Constituency? Why did Mr. Bassey Dan-Abia whose name the Peoples Democratic Party, PDP, sent to the Independent National Electoral Commission, INEC, not get sworn-in? Why did INEC invalidate the Certificate of Return that it issued to Dan-Abia?

The story starts with the House of Representatives primaries for Eket/Ebeno Fed. Constituency which was originally held on January 7, 2011, but was canceled as a result of fatalities – it was conducted at night, all the primaries were bunched together, there was stampede and some delegates were barred from entering the venue.  It was the combination of these factors that led to the postponement of the Eket/Ebeno primaries.  Ten senate primaries were scheduled for re-run by the PDP leadership along with 14 House of Representatives seats as well as nine state houses of assembly primaries.

The re-run were based on petitions by members. Some other petitions failed.  The NWC meeting of January 14, 2011, established these facts and the minutes of that meeting was signed by Alhaji Abubakar Kawu Baraje, then National Secretary.  The sum of N26,000,000:00 (Twenty six million naira) was approved for the re-run primaries.

To further give vent to that resolution of the NWC, Uche Secondus, a Prince, wrote to Chief Olisah Okeke, appointing him as Chairman, House of Representatives Electoral Panel for Eket/Ebeno Constituency.  In Secondus’ letter of January 27, 2011, he admonished them to “be guided strictly by the Constitution of the Party, the guidelines for the Primary Election and the time-Table approved by the National Executive committee, NEC.  It is expected that your exemplary conduct and strict adherence to the rules and regulations during your assignment will justify the confidence reposed in you by the leadership of the party”.

Meanwhile, the specific section of the constitution of the PDP that Secondus referred to is Article 17(2)d which states that “In the conduct of the primaries for the party’s candidate for the post of member, House of Representatives, the primaries shall be held at the constituency headquarters”.

In addition, the PDP electoral guidelines which it submitted to the Independent National Electoral Commission, INEC, also insists that primaries into the House of Representatives, should be conducted at the constituency headquarters.  Part V, Section 28 (B) I states that “In the conduct of primaries for the party’s candidates for the House of Representatives, the primaries shall be held at the Federal Constituency Headquarters”.

But that is not all.  Since due process has become a buzz word in Nigeria, another piece of legislation was on hand to support the need for the conduct of primaries into the House of Representatives at the constituency headquarters.

The Electoral Act, Section 87(4)c(i) states that “In the case of nominations to the position of a Senatorial Candidate, House of Representatives and State Assembly a political party shall, where intend to sponsor candidates: Hold special congress in the senatorial district, federal constituency and the state assembly constituency, respectively, with delegates voting for each of the aspirants in designated centre or centres on specified dates”.

In the case of Eket/Ebeno Federal Constituency, the Federal Constituency headquarters was and remains Eket.

Dan Abia, however, emerged from the primaries held at the state capital, Uyo.  By law and guidelines provided by the PDP, the authentic primaries ought to have held at Eket.

But Eyiboh was the only aspirant who was at the primaries of the PDP at Eket. And because those who framed the words of the Electoral Act anticipated some form of political rascality, Section 87(6) took care of that.

“Where there is only one aspirant in a political party for any of the elective positions mentioned in subsection (4)(a), (b), (c) and the party shall convene a special convention or congress at a designated centre on a specified date for the confirmation of such aspirant and the name of the aspirant shall be forwarded to the Independent National Electoral Commission as the candidate of the party”, it said .

At the primaries where Eyiboh assembled with delegates and which was the venue of the primaries, he was the lone candidate.

There is a history to this.  In 1992, at the primaries of the Social Democratic Party, SDP, mayhem was let loose.  Delegates and supporters of the Lagos Central Senatorial seat engaged one another in a free for all.  The delegates’ queues were disrupted and delegates chased away.  A female lawyer, Kofo Bucknor Akerele, was one of the aspirants for that seat.  Just before the commencement of voting which was eventually disrupted, some leaders of the party had attempted to prevail on her to step down from the race. The reason was that from what the eyes could see, she did not stand any chance of winning the ticket.

In fact, she constituted a distraction to the other candidates and some had even poked fun at her that her participation would only lead to a waste of stationery materials of the SDP.  She refused to be stonewalled into withdrawing.  Therefore, as fight broke out between and among the delegates and supporters of the other big aspirants, Madam Bucknor-Akerele, pleaded with her nine delegates who had queued behind her not to move; they stayed put behind their candidate.  The nine votes were recorded against her name when the dust settled while the other delegates, their sponsors and thugs fled the venue of the primaries.

When the electoral petition panel was to adjudicate on the matter, especially in the face of time constraint, the single digit nine votes of Bucknor-Akerele made her the candidate of the SDP.  And in the South West, SDP, like the Alliance for Democracy of 1999, was the party.  And so, with nine delegates’ votes, Bucknor Akerele became a senator of the Federal Republic of Nigeria in 1992.

Hon. Eyiboh went to court to interpret some of the sections of the party’s guidelines and the Electoral Act, praying the court to declare him the rightful candidate and, therefore, the party’s candidate that won.

Prior to that, INEC had given Dan-Abia a Certificate of Return because he won the election into the House of Representatives Federal Constituency of Eket/Ebeno. He was even supposed to have been sworn-in as the rightful honourable member from that constituency. Then, suddenly, because Eyiboh had fallen so much in love with the act of jumping from court to court, a judgment was obtained.

On June 4, 2011, INEC wrote to the National Assembly on the matter.

INEC, upon legal advice, suggested to the National Assembly that it was invalidating the earlier certificate of return it had issued to Dan-Abia.  In the absence of a valid certificate of return in possession of neither Dan-Abia nor Eyiboh, what should have been the right thing to do?

And because political rascality may know no bounds, the Act further states in Section 75(2) that “where the commission refuses or neglects to issue a Certificate of return, a certified true copy of the order of a court of competent jurisdiction shall, ipso facto, be sufficient for the purpose of swearing-in a candidate declared as the winner by that court”.

And so, the Clerk of the House of Representatives, in accordance with Section 75(2) of the Electoral Act(2010)as amended, swore-in Eyiboh.

But should Eyiboh have been sworn-in? That is the matter that Dan-Abia is now challenging in court.

In fact, Dan-Abia has gone to the Court of Appeal to further argue his case.

And although there was an earlier legal pursuit seeking to stay action on the earlier judgment Eyiboh got, Judge Abdu-Kafarati of Abuja High Court refused to stay action, insisting that Eyiboh, having been sworn-in, a stay of action would be of no consequence.

An appeal is before the Court of Appeal.