Anambra Central rerun: The issues

ON December 7, 2015, the Court of Appeal nullified the election of Senator Uche Ekwun­ife of the Peoples Democratic Party (PDP), who before the nullification represented Anambra Central Senatorial District in the Senate. With the rerun likely to take place before the end of March, this report x-rays the contenders and the legal issues which have been thrown up.

The Court of Appeal nullified Ekwunife's election following g an appeal brought before it by the candidate of the All Progressives Grand Alliance (APGA), Victor Umeh. Justice A. H Yahya of the Court of Appeal ruled that Ekwnu­ife's election did not meet the provision of the Electoral Act, and ordered a fresh election with­in 90 days.

Since the nullification of the election, there have been different opinions and different inter­pretation of the Court judgments. While ruling that Ekwunife was not a candidate in the elec­tion, the Court consequentially ordered a new election. Party-opponents have seized on what some see as a lacuna in the judgment to purvey various self-serving interpretations.

For Umeh, who came second in the poll, he believes the judgment exempts PDP from fielding a candidate in the re-run election. For Ekwunife, the judgment meant that the faction of the PDP that produced her was illegal. There­fore, since nothing can come from nothing, Ekwunife figured that the only route open to her is to seek a new platform, and she swiftly de­fected to the All Progressives Congress (APC).

For the PDP as a party, it believes that the judgment means that it is free to conduct another primary to pick a new candidate. But just as the judgment did not expressly preclude a new pri­mary except by the 'Ekwunife faction', it also did not expressly mandate a new primary. So, it is left to the PDP to decide whether it should conduct a new primary or pick the candidate from the very primary conducted then that met the conditions of the party's Guidelines and Constitution.

Having held that Ekwunife's nomination failed the muster of PDP guidelines on prima­ries, the Court then concluded that "The 11th Respondent (Ekwunife) was therefore not the product of a valid primary and was therefore not duly and legitimately nominated. That has dis­qualified her from contesting the election in the Anambra Central senatorial District".

Some analysts posit that since Ekwunife's candidature was declared illegal by the Court, it's now left for the PDP to figure out who should now become the lawful candidate. The posers now are if the party would hold its pri­mary and when it would hold it.

To determine this, the party needs to travel down in time to when the various primaries that produced different candidates including Ekwunife were held. This is the only fair way the party can truly determine the candidate that emerged from a lawful primary. Unfortunately for it, the PDP headed into the 2015 National Assembly elections in Anambra, with a faction­alized state executive, one led by Ken Emekaiyi and the other led by Ejike Oguebego.

The consequence is the deluge of court cases by senatorial aspirants, each who claimed to have won the primary and is seeking the inter­vention of the courts in declaring them winners.

Obiora Okonkwo, who is one of the candi­dates that emerged during a primary conducted by a faction of the party, believes he is the au­thentic candidate. He says his was the only pri­mary that met the conditions of PDP Constitu­tion and Guidelines on primaries, and which were upheld by the Court in the instant judg­ment. With Ekwunife who was the party's can­didate in the last election gone, it now behooves on the PDP to proceed with a new, but legally controversial primary, or embrace the option of fielding Okonkwo as its candidate.

The legal controversy

The controversy as to if it is constitutional for a party to field a new candidate or conduct a fresh primary for a rerun still rages on.

A lawyer based in Lagos, Martins Agoziem, argues that based on a previous judgment given by the Supreme Court in a case between the La­bour Party (LP) and the Independent National Electoral Commission (INEC), no party is re­quired to present a new candidate for a rerun nor conduct fresh primary.

The Court of Appeal had upheld the nullifi­cation of the April 14, 2007 Adamawa State Governorship election and ordered a rerun. But INEC had refused the LP from fielding a fresh candidate for the rerun as ordered by the Court of Appeal. LP had then approached the Federal High Court for the purpose of interpretation and application of the law as it relates to the right of political parties to field a candidate of their choice in any election.

Some questions were raised in the suit and the LP had asked the Court of Appeal to determine whether:

(1) By the combined effect of section 221 of the 1999 Constitution and section 32(7) and para­graph 27(3) of the first schedule to the Electoral Act 2006, the plaintiff is not entitled to submit to the defendant (INEC) and defendant mandated to receive from the plaintiff list of candidates for any election or by-election.

(2) By virtue of the Supreme Court decision in Ugwu vs Araraume 2007 NWLR, 1048 at 367 and Amaechi vs INEC & others 2007, NWLR, 1065, it is not the prerogative of the plaintiff to nominate and sponsor candidates of his choice for any election in Nigeria.

(3) In the light of the decision of the Court of Appeal in INEC vs Action Congress (AC), February 2008 upholding the nullification of the Adamawa election and ordering a fresh election, the plaintiff is not entitled to submit a fresh list of candidates for election as required by Section 32 of the 2006 Electoral Act.

But in the judgment read by Justice Joseph Okoro on April 10, 2008, the appeal court held that Adamawa governorship rerun was not a bye-election, and only candidates who par­ticipated in the first election were qualified to contest the rerun election. Justice Okoro noted that the re-run election ordered did not refer to a by-election because it merely returned the candidates to the status quo ante.

According to him, Section 32(7) of the 2006 Electoral Act did not apply in the matter and that for a nullified general elec­tion, only the persons who were candidates in the said election could take part in the re-run as the date for the nomination of candidates had lapsed. He held that there was no room for substitution as the candidates for the re-run were not contest­ing for a vacant office.

The LP was not satisfied with the judgment of the Appeal Court, and filed an appeal in the Supreme Court, but the Apex Court affirmed the verdict of the Court of Appeal.

In its ruling, delivered on the 13th day of February, 2009 by Justice Ikechi Francis Ogbuagu, the Supreme Court in the case between Labour Party (the appellant) and INEC (the respondent) agreed with the court of appeal that "Where a general election has been held and there is a false start, for ex­ample, a candidate who ought to have been part of the election was unlawfully excluded or there was no level playing ground for all the candidates and that election is subsequently either cancelled by the regulating authority like INEC or nullified by an order of a court or tribunal, and a re-run or re-start is ordered, it is my humble view that the re-run or re-start refers to that general election cancelled or nullified, and not a bye-election".

Justice Ogbuagu explained that "The consequence of this is that all the candidates including the one unlawfully excluded would now get back to the starting line for a fair and free con­test. It does not admit of any other candidate since as it were the period for nomination and screening of candidates would have elapsed.

Agoziem is of the opinion that the Supreme Court verdict should be a reference point in the conduct of rerun elections in the country, any fresh primaries held by political parties to choose new candidates for the forthcoming reruns would amount to a complete nullity and an exercise in futility.

The contenders

The three main parties that are in fierce contest for the rerun are the PDP, APGA and APC. For the PDP, the major con­tenders for the party's ticket are a former Minister for Avia­tion, Osita Chidoka, and a party veteran, Obiora Okonkwo. In APC, the woman leader, Sharon Ikeazor is the senatorial candidate, and for APGA, the only candidate it has is Umeh. Annie Okonkwo of the PDP may not be in the race because he is a can­didate of a primary produced by the Oguebego/Chris Uba faction, whose case in still in the Su­preme Court. If the Supreme Court rules in his favour, then this new election may be null and void and the validity of Senators Andy Uba and Stella Oduah, both of the PDP in Anambra State may be hanging in the balance. Also Chike Ma­duekwe is unlikely to participate because he has a case in court, whose outcome can nullify the chances of PDP in the election.

Sharon Ikeazor: It is believed that Ikeazor, who was the national women leader of the de­funct Congress for Progressive Change (CPC) is a grassroots politician and her consistency in the party may have worked it her favour and en­deared her to the party's hierarchy. She was in contention with Ekwunife for the party's ticket and eventually emerged as its candidate for the election.

In support of Ikeazor, the deputy national women leader of APC, Tina Ekwueme-Adike had said that female politicians who defect has made it a habit of joining the party without ac­knowledging the women leaders, which she says negates the principles of protocol.

She said that the party's constitution was very clear on the issue of membership to be fulfilled by defectors and that the constitution should be enforced without half measures. She insisted that in as much as every registered member has rights and privileges, the rights of founding members should be respected.

Victor Umeh: Being the only candidate for APGA, he has the backing of Governor Willie Obiano of Anambra State and the resources to mobilize for the election. The legal controversy as to whether a party has the right to present a fresh candidate for the election may also work in his favour.

Obiora Okonkwo: Also a veteran of the PDP, he emerged as the candidate in one of the pri­mary of a faction of the PDP, which he believes met the rules and guidelines of the constitution. He is also seen as a grassroots politician and has contributed to the development of the Senato­rial district. Okonkwo says that he is the man to resurrect the PDP because he has the capacity. "The question actually is not that I am running for primary, but that I remain the big contender for the seat. I have the charisma to become the rallying point, the bridge between the aggrieved members and the party" he says.

Osita Chidoka: He is a former Minister for Aviation and the former Commander of the Federal Road Safety Corps (FRSC). He used his influence in FRSC to attract a training school to Anambra to the delight of the people of the state.

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