PDP AND THE ONDO FIGHT- A LEGAL OPINION

The ongoing melodrama in Ondo State concerning who should legally emerge as the People’s Democratic Party (PDP) candidate for the imminent state gubernatorial election come 26th, November is really worthy of an appropriate legal examination. For the equitable sake of clarity, the ongoing fracas started with the substitution of the name of Eyitayo Jegede (SAN) by the Independent National Electoral Commission (INEC) for that of Jimoh Ibrahim as the PDP candidate for the governorship election in Ondo State. An action which the Independent National Electoral Commission alleged to be in obedience to standing court order.

More interestingly, the whole political struggle is clearly another episode of the film orchestrated by two age long enemies in persons of Ali Modu Sheriff and Ahmed Makarfi. The former presented Jimoh Ibrahim to INEC as the party’s candidate for the governorship election, while Ahmed Makarfi (the caretaker committee) submitted the name of Mr Eyitayo Jegede (SAN) also as the party’s candidate. INEC subsequently in pursuance to an extant order from a Federal High Court sitting in Abuja, declared Jimoh Ibrahim as the official flag bearer for the party. This act itself spurred violence and disorder in Ondo state.

Importantly, it would be apt for a plain evaluation of this above happenstance while putting on the enviable lens of the law and discarding any conspicuous pointers to political manoeuvres.

Section 87 (1) and (2) of the Electoral Act 2010 states that; “A political party seeking to nominate candidates under this Act shall hold primaries for aspirants to all elective positions.” Subsection 2 of said section is to the effect that “The procedure for nomination of candidates by political parties for the various elective positions shall be by direct or indirect primaries.” Thus, Section 87 (1) & (2) of the Electoral Act provides in a nutshell, the nomination of candidates as representatives by parties into various elective positions through either direct or indirect primaries. And a joint reading of the aforesaid section with Section 50(4) of the Constitution of the Peoples Democratic Party will birth the understanding that the Peoples Democratic Party employs the indirect primary election system.

Section 150 of the Electoral Act which is the interpretation section clears all reasonable doubts by defining “Indirect Primaries” as ‘an intra-party election where a political party’s delegates to a party convention or congress elect the party’s candidate and the same section further defines Election as “any election held under this Act and includes a referendum“. Thus, it must be understood that save where it is expressly stated to the contrary by the Electoral Act, ‘Indirect Primaries’ (as practiced by the PDP) can be inferred to constitute one of such occasions to which the Act refers to as ‘Election’ and consequently it should not be narrowly construed exclusively within the express confines of Section 87. In furtherance to the above, Section 87 (9) of the same Act enables an aggrieved party, who complains that any of the provisions of the Act and guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party for election, to make application to the Federal High Court or the High Court of a state or FCT for redress.

The above position of the law remains unequivocal, the only existing authors of confusion in the present situation remains INEC, as much the whole tussle prima facie started from the confusion as to PDP’s statutory obligation in Section 31 of the Act to submit names of candidates for elections. INEC made things complex by not adopting the decisions of the Federal High Court at Abuja in July, where Justice Okon Abang declared Ali Modu Sheriff as the National Chairman. The judge in specific words held that; “PDP had no lawful authority to hold the convention that led to the emergence of the Makarfi-led committee.” He went further to state verbatim that “consequently any action taken by the Makarfi-led committee…is hereby declared illegal.” Thus, it remains within the bounds of reason to state that save and until such order is reversed by a court of competent and more importantly superior jurisdiction, the Makarfi-led caretaker committee is deemed never to have existed and lacks concrete power or authority in the eyes of the law.

The reasons why INEC has defiled protocols and decided to grieve the innocent heart of rationality remains unfathomable. The law is not an author of confusion and legality itself cannot spring forth from the roots of illegality. Simply put, no matter how prudent or law abiding the Makarfi-led faction might have claimed to have conducted their supposed primary election at Ondo State, such act remains void. And the fact that there was a subsequent judgement from the Federal High Court in Abuja makes no difference in setting aside the previous judgement because of two basic factors. Firstly, Justice Nwamaka Ogbonnaya totally erred in law when he held Justice Valentine Ashi’s judgement nullifying Ali Modu Sheriff as chairman on June as subsisting. His lordship rigidly refused to place his mind to the extant decision of Justice Okon Abang in July which had implied effect of overruling Justice Valentine’s decision. The logic here is clear, the decision of a Federal High Court must render void and gain preference over any inconsistent judgement from a court of lesser jurisdiction. Secondly, Justice Nwamaka erred by accepting such action, considering that there was a subsisting decision of the same Federal High Court at Abuja on the same issue. What his lordship ought to have done in pursuance of justice is to refer aggrieved parties to go on appeal, rather than sitting to decide on the matter and perhaps relying on the defence that the action came in a different form when the subject matter rigidly remained same.

In fact, the present agitation is largely baseless because by virtue of Section 139(1) of the Electoral Act, “An Election shall not be liable to be invalidated by reason of noncompliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the noncompliance did not affect substantially the result of the election“. Thus, notwithstanding the fact that the Ali Modu Sheriff faction defiled the provisions of Section 87 by not holding the special congress in Akure the state capital for the primary election of Jimoh Ibrahim, but rather held it at Ibadan, the Federal High Court via Justice Okon Abang never erred in law when it declared Jimoh Ibrahim as the candidate because the latter’s election was not by any way affected by such act.

I must commend the Makarfi faction for taking the bull by the horn, when it recently appealed to the Court of Appeal to reverse the extant decision of the Federal High Court which ordered the declaration of Jimoh Ibrahim as flag bearer of the Peoples Democratic Party. However, it must be noted that by virtue of Section 87(11) of said Electoral Act, “nothing shall empower the courts to stop the holding of general elections under the Act pending the determination of a suit concerning such election. Ergo, the Independent National Electoral Commission has every right to proceed with the oncoming election despite the fact that there is a pending suit at the Court of Appeal.

Finally, I deem it fit to make a clarion call to all politicians to uphold and observe the procedures and dictates of the law, and consequently desist from creating confusion within the sacred judicial arm of this country.

CHRISTOPHER AWODIMILA.

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