Election Tribunal Can Declare Poll Winner, Court Rules.

A Federal High Court in Lagos on Thursday nullified Section 140 (2) of the Electoral Act that barred election tribunals from declaring as winners those who successfully prove their petitions.

The Section only allowed the tribunals and the courts to order rerun ballots.

But Justice Okechukwu Okeke held that the amendment to the Electoral Act done by the National Assembly (NASS) in that regard is null and void, as it contravenes the powers given to the courts by the Constitution.    

Okeke came to the conclusion while delivering judgement in a suit filed by the Action Congress of Nigeria (ACN) challenging the legality of some Sections of the Electoral Act, 2010 as amended.

The Sections challenged included 140 (2), 141, and 87 (8).

The NASS had through its lawyer, Sebastian Hon, conceded at the last hearing that it lacks the power to amend the Electorate Act to prevent tribunals and the courts from declaring as validly elected anyone who successfully proves his or her case.

The team of ACN’s lawyers was led by Yemi Osinbajo, former Lagos State Attorney General and Commissioner for Justice.

Also at the last hearing, the ACN conceded to the superior argument of the NASS on Section 141 to the effect that the Section should remain because its main purpose is to prevent anyone who does not participate in an election from being declared winner.

The NASS retained Section 141 on the grounds that prior to the amendment, there was heated debate whether the Supreme Court was right when it declared Rotimi Amaechi Rivers State Governor when he did not contest in the election in April 2007.

The concession by  the parties consequently narrowed down to Section 87 (8) of the Electoral Act.

During adoption of written argument, the ACN urged the court to nullify Section 87 (8), saying it contravenes the Constitution.

It stressed that Section 87 (8) unduly disenfranchises political appointees from participating in the internal political process for nominating candidates for elections, and that it also violates the right of association guaranteed under Section 40, Chapter IV of the Constitution.

But Hon argued that the ACN lacked the locus standi to challenge Sections 141 and 87 (8) of the Electoral Act, because they are regular, consistent, and constitutional.

He had also stated in a counter-affidavit to the suit that the Electoral Act was amended in the overall interest of all Nigerians, irrespective of political party affiliation.

He said Section 87 (8) was enacted based on concerns whether political appointees should be allowed to vote at party primaries, given that most of them perform duplicated functions as they are paid from public coffers.

After considering the arguments, Okeke held that Section 87 (8) is necessary to provide a level playing field for all contestants.

He concluded that the Section must remain because if elections must be free and fair, all parties must have a level playing field.

“If you want to take political appointment, you must know the implication that as a political appointee, you will not be able to act as a delegate in party primaries. 

“It is my humble view that Section 87 (8) is a valid provision in the interest of peace so that all contestants will be on equal footing,” the Judge held.

He commended the lawyers for the high level of maturity displayed in the case.   

In his reaction, ACN National Publicity Secretary, Lai Mohammed, said the party’s position has been vindicated that the NASS dominated by the Peoples Democratic Party (PDP) was trying to usurp the powers of tribunals given by the Constitution.

To him, the law and the Constitution are very clear on this, adding that the PDP is comfortable with tribunal verdicts that order rerun elections, because it is likely going to win

“What the PDP has in mind is to rig elections and ask tribunals for rerun elections which they end up rigging. So, the Constitution is clear on the powers of the courts as they affect election petitions. The National Assembly cannot usurp the powers of the courts,” Mohammed stressed.