INEC, Buhari and the 1999 Constitution

Sequel to the publication by the circle of democrats of Tribune of January 18, 2015, it is imperative to take a look at the legal implication of the false declaration on Oath in the affidavit presented to the umpire body and declared in the Independent National Electoral Commission (INEC) Form CF001. The court over the years has settled the fact that candidature, nomination, screening and matters appertaining to and relating to a candidate clearance for election are crucial to his eligibility to contest elective office. By virtue of Section 31 (5) and (6) of the Electoral Act 2011, (As Amended), a candidate, who makes false statement in the affidavit in support of his particulars, stands liable to be disqualified for the election upon an application made to the Court once the Court found out that any of the statements in the affidavit is false.

Per Ogunbiyi JCA in Dr Okey enemuo vs. chief duru & ors 2004 9 (NWLR) (Pt 877) 75 at 112 stated thus: The issues of candidature, nomination, screening, clearance and contesting as candidate are very important and significant and which must precede the winning of any election. In other words, without such preliminaries having been conducted, it is impossible that any candidate would have been eligible for an election much more to have been subject of consideration.”

The law is now settled that if a party is found not to have been legally and lawfully qualified to have contested an election the effect is that, such candidate did not participate in or contest the said election ab-initio. Section 131 (d) of the 1999 Constitution (As Amended) provides for the educational qualification of a President while Section 31 (2) of the Electoral Act 2011 (As Amended) provides for the procedure of presenting those qualifications for the election. The only way to authenticate the qualification is by compliance with Section 31 of the Electoral Act, which includes the deposition on an affidavit. These laws are not for fun or cosmetic but meant to be obeyed and scrupulously adhered to hence the deposition on affidavit. To depart or negligently refuse to comply thereto or to treat the procedure and compliance thereto with levity is not only denigration but a desecration of the laws. When we as leaders or potential leaders handles the laws with levity, we destroy the system and so it is with any man who by corrupt means obtains judgment in Court he causes a long-lasting destruction to the judicial system. The same is with the Judge who perverts justice as all these collectively are responsible for the systemic collapse of a nation.

Now that the information supplied in the affidavit of Buhari violates Section 31 (5) & (6) of the Electoral Act 2011, he automatically stands disqualified for the 2015 presidential election if an application is made to the court in that regard. This position is re-enforced by the decision in Ejiogu vs Irona (2009) 4 NWLR (Pt. 1132) 513 at Pg 561 paras B – D Ratio.

The declaration on oaths does not relate to the other issues which surround the certificates such as whether or not he indeed possesses the certificate and whether or not the certificate subsequently released is forged as it is being claimed. Although, each and every of these allegations by themselves also derogates his qualification for the election.

Again in ALBASHIR VS INEC 2009 4 WLR (pt. 1130)   1 at 11 para A – C the Court of Appeal Abuja Division stated that the election of a person who stand s disqualified in the election at the time of contesting the election is a nullity and an exercise in futility. The court while relying on the dictum of LORD DENNING IN MACFOY VS. UNITED AFRICA COMPANY LTD (1961) 3 ALL ER 1169 held:

“If an act is void, then it is in law a nullity, it is not only bad but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null, and void without much ado. You cannot put something on nothing and expect it to stay there. It will collapse”

The case of KWARA VS. INNOCENT (2009) ALL FWLR (Pt. 460) 789 is on all fours with this matter under consideration. In that case, one of the issues which the Court had to decide was whether a party who made false and or irreconcilable declaration in an INEC Form CF001 would have his nomination and election set aside. The Court resolved the issue in the positive. In the case of AGBAKOBA VS. INEC (2009) ALL FWLR (Pt. 462) 1037 at Pg. 1091 Para G – H immortal Justice Katsina Alu, JSC held:

“In the eyes of the law, Honourable Ikpeazu was not the candidate in the election. And so the justice of this case lies in making an order that Honourable Gozie Agbakoba being a person properly nominated by PDP step into the shoes of Honourable Ikpeazu who won the election. And so I order”.

The above decision is to the effect that when a party is not qualified or stands disqualified for an election but however participated and won, his election is liable to be set aside. It is therefore a settled law and with a plethora of judicial authorities that a party which sponsors a candidate that stands disqualified for the purpose of the election has no candidate in the election. This is more so since the Electoral Act 2011 does not permit returning the next candidate with the highest votes as the winner in the said election, but the tribunal is empowered to nullify the election vide Section 140 of the Electoral Act 2011.

A-priori, it can safely be concluded that Buhari is not a candidate for the 2015 presidential election having made false declaration on Oath by his statement that his certificates are with the Military Board, which Military Board have clearly and categorically refuted with a demonstration showing that at the time he entered into the Military there was no certificate presented but that his enlistment was based on the recommendation from the Principal of his school. The foregoing has nothing to do with whether he indeed has certificate or whether the certificates he possessed are forged or not. Although these are also weighty issues hanging over the person, character and integrity of his candidature.

Nigerians should not be blindfolded by a campaign laced with sentiments, clothed with deliberate deception that would take us backwards in a geometric retrogression. It is a legal issue which stands as a formidable obstacle against the candidature of Buhari in the event of a legal contest which is based on available facts of the moment. Any Nigerian who seeks to occupy the exalted position of the president of Nigeria must manifestly demonstrate that he can be trusted with the safeguards of the laws and the Constitution of the Federal Republic of Nigeria. Otherwise, such a candidate cannot be entrusted with the office which by effect he is seeking to the position of the President a potential alter ego and prime custodian of the laws and the Constitution of the Republic if and when so entrusted by populist mandate which carry with it immunity vide Section 308 of the Constitution of the Federal Republic of Nigeria (As Amended).

No citizen should be greater than the nation. No citizen should be above the law. In other clime, the nation is placed first and foremost. Great citizens when they run foul of the law are made to face the music of the law and by so doing, the society is insulated and immune from systemic gradual collapse. This is why we must face the reality and the enormity of what is at stake which is the preservation of the system vide the instruments of the law rather than our narrow selfish ends. It is hereby strongly recommended that stakeholders, interested or contenders in this election or Nigerian citizens should go to court timely. This is because the issue under deliberation falls squarely under pre-election matters which are not within the scope of post -lection litigation. It is safer for the matter to be determined timely and now before the election is concluded, otherwise other legal issues and sentiments shall subsume, and which would not do the nation and its citizen any good.

That apart, the competence of an election tribunal to take up the issues now under discussion which are purely within the purview of pre-election litigation would arise if not presently addressed by a timely judicial action. Further to the foregoing the desired transformation or change being seriously canvassed by the two dominant political parties now contending for the presidency would be further jeopardised if no recourse is made to judicial settlement of the issues created by the certificate and other legal controversies around the key participants.

If timely addressed, the issues arising bothering on character and integrity of the candidates would be permanently resolved one way or the other, otherwise same shall continue to hunt the contenders, the citizens and the nation not only within but to the world at large even Nigeria among the comity of nations

Dinma is a private legal practioner and a constitution lawyer in Abuja