Tribunals To Declare Election Winners And Not To Call For A Re-Run .

CONTRARY to provisions of the Electoral Act, the Federal Government has told a Federal High Court sitting in Abuja that election tribunals should have powers to declare winners in disputed polls and subsequently asked the court to declare the sections of the Act restraining the tribunals as unconstitutional.

advertisement

Sections 140 (2) and 141 of the Act as passed by the National Assembly and signed into law by President Goodluck Jonathan preclude the election tribunals from making declarative orders on election disputes which would see winners emerge.

Instead, the provisions directed the tribunals to order rerun poll in the event that the winner's election was nullified.

The Labour Party had gone to court to challenge the provisions as inconsistent with the relevant aspects of the operational Constitution of the Federal Republic of Nigeria.

Joined as a defendant, the Attorney-General of the Federation (AGF) and Minister of Justice, Bello Adoke, SAN, in his brief of argument, submitted that the provisions ousted the jurisdiction of the tribunals with respect to the reliefs which the courts could grant in certain circumstances in an election petition.

Adoke, through his counsel, Olufunke Aboyade, joined the plaintiff (Labour Party) in demanding that the said provisions of the Electoral Act be expunged.

The duo asked that sections 140 (2) and 141 of the Electoral Act 2010, which purport to specify the order a tribunal can make in an election petition, be declared as unconstitutional, null and void.

In an originating summons filed by Chief Chuwkuma Ekomaru, SAN, the party asked the court to declare that the provisions of the Electoral Act stated above were inconsistent with the provisions of sections 6(6a), 134, 179, 285 of the 1999 Constitution.

The Labour Party also sought an injunction restraining the AGF and the Independent National Electoral Commission from refusing to accept any candidate for the party declared by a tribunal as winner of election into any elective office.

Sections 140(2) of the Electoral Act provides "Where an election tribunal or court nullifies an election on the grounds that the person who obtained the highest votes at the election was not qualified to contest the election, the election tribunal or court shall not declare the person with the second highest votes as elected, but shall order a fresh election."

Section 141 states that: "An election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said elections."

In a 17-paragraph supporting affidavit deposed to by the chairman of the party, Dan Nwanyanwu, he averred that: "I have read the Electoral Act 2010 and discovered that section 140(2) and section 141 of the said Act smack of legislative tyranny in that it removed the constitutionality guaranteed powers of the court to declare a candidate the winner of an election."

He also stated that by the provisions of the sections of the Electoral Act in disputes, the legislature had interfered with judicial affairs in violation of the doctrine of separation of powers.

According to him, by virtue of sections 134 and 179 of the constitution, the courts had been given the power to declare the person with the majority of the votes as the winner.

The party further stated that section 140 (2) and section 141 of the Electoral Act were aimed at tying the hands of the tribunals and the Court of Appeal from declaring who scored the highest votes as the winner of the election.

In Aboyade's submission, she argued that the provisions in dispute ousted the jurisdiction of the courts with respect to the reliefs which the courts could grant in certain circumstances in an election petition.

According to her, the two sections were inconsistent with the 1999 Constitution.

She noted that sections 140(2) and 141 of the Electoral Act derogated from the provisions of sections 239 and 285 of the constitution, which imbued the tribunals with the power to hear and determine election petitions and to make declarations as to the rightful winners of such elections without reservation.

Citing section 1(3) of the constitution, she asked the court to declare the sections of the Electoral Act in dispute as null and void for being inconsistent with the provisions of the constitution.

She added that sections 140(2) and 141 of the Electoral Act appeared to directly contravene the provisions of section 4(8) of the Constitution which subjected the exercise of legislative powers to the jurisdiction of the courts.

Justice Gabriel Kolawole adjourned hearing of the suit, expected to give direction on the judgments from the election tribunals nationwide, till June 15.



Written by Lanre Adewole and Tunde Oyesina,