A legal practitioner, Austin Osarenkhoe in this piece examines the legal issues arising from the disqualification of Governor Timipre Sylva of Bayelsa State and concludes  that the disqualification was unconstitutional  and illegal

The Peoples Democratic Party (PDP), has purportedly disqualified Governor Timipre Sylva from participating in a purported Governorship primaries to nominate its governorship candidate for the February, 2012 Bayelsa  State Governorship Election.   I dare say that, from the facts and circumstances of this case, and the state of the applicable laws and judicial decisions thereon, PDP cannot validly or competently disqualify Governor Sylva from contesting the 2012 Bayelsa State Governorship Election on the platform of PDP. The purported disqualification of Governor Sylva by PDP is therefore illegal, unconstitutional and ultra vires.  I now proceed to demonstrate the illegality and unconstitutionality of the purported disqualification of Governor Sylva by PDP.

On 15th April, 2011, INEC, in pursuance and compliance with Section 153[1] [f]  of the Constitution,  Paragraphs 15[a], [c], [f], of the Third Schedule to the 1999  Constitution as amended,  and Section 2 of the Electoral Act 2010, was to conduct a governorship election in Bayelsa State as part of the general election in Nigeria in which the next governor of Bayelsa State, among others, would have been elected: See Sections 25[1][c], 31[1] and 156 of the Electoral Act 2010. INEC made the necessary statutory arrangements and preparations for that election and issued the necessary statutory notices to that effect: See Sections 9, 10, 11, 14 to 21, 30, 42 to 49 of the Electoral Act 2010.

As a result of that general election, political parties conducted primaries to nominate their candidates for the various elective offices, including governorship, in compliance with Sections 31[1], 32, 34, 85, 86[1], [2], 87[1], [4][b] [i] [ii] of the Electoral Act 2010 and Sections 221 and 222 of the 1999 Constitution.  On 9th January, 2011, under the supervison of  INEC,  PDP nominated  Governor Sylva as its candidate for the said April 15, 2011 Bayelsa State Governorship election and submitted his name as such to INEC as required by law.

By a judicial emergency [Sylva v. INEC], in obedience to orders of courts, INEC could not conduct the Bayelsa State Governorship election on 15th April, 2011. INEC in exercise of its power under Section 26[1] of the Electoral Act 2010 postponed the Governorship election of Bayelsa State from 15th April, 2011 to February, 2012: See UMAR V. ONIKATA [1999] 3 NWLR [Pt. 596] 558; KUDU V. ALIYU [1992] 3 NWLR [PT. 231] 615 AT 622; EDONKUMOH V. MUTU [1999] 9 NWLR [PT. 620] 633 AT 639-640

I submit that the judicial decisions which intervened to prevent INEC from conducting the Bayelsa State governorship election on 15th April, 2011, amounted to and fell under the category of “other emergencies” mentioned and envisaged under Section 26[1] of the Electoral Act 2010. I submit that INEC’s reason [obedience to orders of courts] for the postponement of the governorship election of Bayelsa State in April, 2011 was cogent and verifiable: See Section 26[1] of the Electoral Act; UGWU V. ARARUME [2007] 12 NWLR [PT. 1048] 367; AMEACHI V. INEC [2008] 10 WRN 1 AT 94.

As at the date of the postponement of that election by INEC, PDP had already nominated and submitted Governor Sylva as its candidate for the election and remains nominated by PDP for the election. PDP can neither nominate another person as its candidate for the postponed governorship election of Bayelsa State nor substitute Governor Sylva for another candidate nor withdraw the nomination of Governor Sylva. Only Governor Sylva can by himself, of his own volition, withdraw his nomination or candidature: See Sections 32[2], [5], 33, 35 of the Electoral Act; Ameachi v. INEC.[2008] 10 WRN 1

I submit that in a postponed election which is later resumed, as in this case, the status quo of the electoral conditions including candidates already nominated for the election, which had been satisfied as at the date of the postponement of the election remain valid and subsisting and cannot be withdrawn until the election is held because the facts and purposes remain the same: See Sections 26[1] and [2], 32[2] and [5], 33 of the Electoral Act.

Sections 26[1] and [2] of the Electoral Act 2010

Where a date has been appointed for the holding of an election, and there is reason to believe that a serious breach of the peace is likely to occur if the  election is proceeded with on that date or it  is impossible  to conduct the election as a result of natural disasters  or other emergencies, the Commission may postpone the election and shall in respect of the area, or areas concerned, appoint another date for the  holding of the postponed election provided that such reason for the  postponement is cogent and verifiable.

Where an election is postponed under this Act, on or after the last date for the delivery of nomination papers, and a poll has to be taken between the candidates nominated, the Electoral Officer shall, on a new date being appointed for the election, proceed as if the date appointed were the date for the taking of the poll between the candidates.

Sections 32[2] and [5] of the Electoral Act 2010

A person shall not nominate more than one person for an election to the same office.

A person who has subscribed as a nominator shall not, so long as the candidate stands nominated, withdraw his nomination.

Section 33 of the Electoral Act 2010

A political party shall not be allowed to change or substitute its candidate whose name has been submitted to the Commission  pursuant to Section 31 of this Act, except in the case of death or  withdrawal by the candidate.

By the combined provisions of Sections 78, 79, 80 and 156 of the Electoral Act 2010, and Section 229 of the 1999 Constitution a political party such as PDP is an association of persons, a body corporate, a legal or juristic person, with perpetual succession and therefore falls into the provision and definition of “person” under sections 32[2] and [5] of the Electoral Act 2010. If PDP proceeds to nominate another person as its candidate for the February 2012 governorship election of Bayelsa State, as it has now done amounted to double nomination which is prohibited  and criminalised by Sections 32[2] and [3] of the Electoral Act and would therefore be void.

In the same vein, Governor Sylva cannot now secure the nomination of another political party for the purpose of the Bayelsa State governorship election fixed for February 2012, having already been nominated by PDP for the same election. That would be multiple nominations which would render both nominations void and invalid: See Section 37 of the Electoral Act, which provides:

Where a candidate knowingly allows himself to be nominated by more than one political party or in more than one constituency, his nomination shall be void.

I submit that the governorship nomination exercise for Bayelsa State held on the 19th November, 2012 and the result thereof is an exercise in futility and a wasteful and needless surplusage: See Sections 32[2] and [5] of the Electoral Act 2010; Balonwu v. Governor of Anambra State [2008] 16 NWLR [PT. 1113] 236 at 273 where the Court of Appeal declared:  “There ought not to be a fresh proclamation order by the new governor. The proclamation made by him [the former governor] in 2003 which constituted the first session of Anambra State House  of Assembly remains valid by effect of Section 105[1][3] of the Constitution of the Federal Republic of Nigeria. The subsequent proclamation of the Anambra State House of Assembly on 21st of March, 2006 by Mr. Peter Obi, after his victory at election tribunal, in my own opinion was, a mere surplusage.”

PDP having already nominated Governor Sylva in January 2011 and submitted his name to INEC as their governorship candidate for the Bayelsa State governorship election cannot turn around to hold another nomination election in November 2011 and nominate another candidate when the first nomination for the same purpose is still valid and subsisting and has not been utilized or exhausted. Doing so would be tantamount to change or substitution, which is now a political taboo in Nigeria’s Statutory Politics. It is forbidden: See Sections 32[2], [5] and 33 of the Electoral Act 2010; Ameachi v. INEC [2008] 10 WRN 1 at 267 where the Supreme Court said:

“The  decision to substitute Celestine Omehia for Rotimi Chibuike Amaechi by the 3rd respondent (PDP)during the period of pending gubernatorial election represents a display of very grave display of political rascality and an irresponsible and wanton disrespect for the rule of law. No responsible person or  group of persons who parade themselves as having respect for rule of law and due  process, can be credited with such a dastardly act. The 1st respondent, by acceding to the request of the 3rd respondent for the substitution, has painted a picture of itself as a spineless body whose pre-occupation is dissemination of injustice. It [1st respondent] has forgotten or it has thrown into the winds the position carved for it by the Constitution of the land – An unbiased umpire.”

Also, excluding Governor Sylva from the Bayelsa State governorship election of February 2012 on the platform of PDP after been nominated for same by the Party in January 2011 when he cannot now be nominated by another political party to participate in the election would amount to valid nomination but unlawful exclusion under Section 138[c] of the Electoral Act 2010 against PDP: See Sections 37, 87[1], [4] [b] [ii] [9] and [10] of the Electoral Act 2010; Section 6[6][b] of the 1999 Constitution; Ameachi v. INEC, supra.

Austin Osarenkhoe Esq., a legal practitioner, wrote in from Benin City: 08035302022; 08053311022