AS the Supreme Court prepares to adjudicate on the issue of jurisdiction by the Appeal Court Abuja, to hear the Imo Governorship case between Martin Agbaso on the one hand and Governor Ikedi Ohakim and INEC on the other, it has become necessary to revisit the issues which make the matter germane before the law. What compares in every respect to the annulment of June 12, 1993 Presidential Election was re-enacted on April 15, 2007 by the Independent National Electoral Commission (INEC) in Imo State in respect of the April 14, 2007 governorship election in that state. It was the annulment of the Imo State gubernatorial election apparently won by Chief Martin Agbaso of the All Progressive Grand Alliance (APGA).
As later revealed, certain sectional and egoistic factors played together in the making of what is perhaps the most bizarre electoral injustice in Nigeria since 'June 12'. The first is the strong political dichotomy in Imo State along parochial geo-cultural lines which enables every Imo State indigene to identify with any of Orlu, Okigwe and Owerri zones. The second, and probably the sealer of the April 14 incident, was the alleged interest of Prof. Maurice Iwu, the INEC Chairman (who identifies with Okigwe zone) in who emerges governor. At the countdown to April 14, opinion polls disclosed a 'too-close-to-call' position between Chief Martin Agbaso of APGA and Senator Ifeanyi Ararume of the Peoples Democratic Party (PDP). Other candidates were believed to be merely adding the "the more the merrier" blend to the contest.
Then the PDP, which until the new dispensation that started on May 29, 2007, was never short of startling intrigues, gleefully announced that it had no candidate for the governorship polls. This electoral hara-kiri was aimed at humiliating the Supreme Court which had on April 5, 2007 in SC 63/2007 upheld Ararume as PDP's candidate against Charles Ugwu, who was anointed by the then gods of Aso Rock. At the April 14 Election Day in Imo State, unlike in other states, the ballot papers for both the governorship and House of Assembly polls were cast into the same ballot box at the polling booths. Out of the 3,532 polling booths, results were released in 3,496. Out of the 305 wards results were collated and announced in 289. Out of 27 Local Government Areas, results were collated and announced in 26! The collated results show that Agbaso had an overwhelming lead in 24 out of Imo State's 27 Local Government Areas with figures representing about 87 per cent of total votes cast at the election! Of course the results were not classified documents. They were announced at each collation stage, from polling stations to Local Government Areas, in accordance with the law and INEC Guidelines.
But it remained the final collation of the Local Government Areas' results at the final state level by the Resident Electoral Commissioner (REC) in Imo State. Stalemate built up when the Resident Electoral Commissioner (REC) would not carry out the legal formality of putting together obvious results from the Local Government Areas. On Sunday, April 15, 2007, the build-up culminated in the unexpected. Instead of collating returns from Local Government Areas already submitted to him in Forms EC8Cs, the REC called a press conference and announced the annulment of the entire governorship election. He cited violence in some parts of the state as justification. He curiously upheld the returns of the House of Assembly election which ran concurrently with the governorship election to the extent that the two were held under the same circumstances, conducted by the same officials, cast into the same ballot boxes and with the same Imo State electorate voting.
What is baffling in the reliance of the REC on alleged violence in parts of Imo state to cancel the entire governorship election is that police report on the April 14 election did not indicate any record of violence in Imo State. In the report published in national newspapers, the police said there were 265 major incidents in the country in which 1, 093 arrests were made and 50 persons killed. None occurred in Imo State! Was the violence between APGA and PDP which repudiated its candidate? Or was it between APGA and other political parties which had little or no real presence in the state? In any event, Imo State was neither one of the states considered before the election as flash-points where conflagration was expected, nor was it in the news for undue violence after the election! Why did the REC not cancel election in the places where he claimed there was violence? Again, why were the House of Assembly polls conducted simultaneously with the governorship election not cancelled?
I am still unable to see why the REC should not have declared results submitted to him and allow candidates with issues on the election to approach the Tribunals established for the purpose for redress. Did INEC not exercise judicial powers in deciding that there was violence and invalidating the election? I believe INEC has no power to annul an entire governorship election citing violence in parts of Imo State. Apart from power to cancel votes in a polling station or constituency on grounds of over-voting under Section 54 of the Electoral Act, I am still searching in vain to see where INEC derived the dictatorial power to cancel an entire election on grounds of violence or at all. As a country anchored on rule of law, it is important as part of democracy building initiatives that there must be full judicial test of the validity of the power exercised by INEC in this April 14 incident in Imo State.
The legal norms sustaining our electoral system expressly provide for one way of quashing an election or a return under the Electoral Act. It is by an election petition before a competent court or complaining of undue election or undue return (Section 140 of the Electoral Act). There is no executive action, whether by INEC or any other person or body, available to question elections or returns. By applying executive fiat to find the April 14 elections incompetent due to alleged violence and quashing it, INEC exceeded its powers and made an incursion into judicial sphere. For the avoidance of doubt Section 145(1)(b)(c) provides that grounds for questioning an election includes the invalidity of the election for corrupt practices or non-compliance with the Electoral Act and the nonexistence of majority of lawful votes in favour of the person returned. This further suggests that the law intends that the type of complaint addressed by INEC in Imo State be addressed by the Judiciary. It should be noted that many petitioners are presently before the various Election Tribunals trying to prove that specific elections were marred by violence and should be set aside. These petitioners are not lucky to have come from Imo State where INEC has done what they are making effort to prove.
It is because of the doggedness of Rashidi Ladoja of Oyo State that today no legislature in Nigeria will expect a perfunctory removal of a governor to stand. It is because of the doggedness of Atiku Abubakar that no civilian dictator will expect an unconstitutional removal of a vice president to stand. Atiku's advantage of judicial process has ensured that no executive 'indictment', without a judicial test, a la EFCC, is worth more than the paper on which it is typed. Atiku made it possible for Nigerians politically victimised with executive 'indictment' to be able to stand for elections. Ararume blazed the trail on the invalidity of unlawful substitution by a political party. So the bitter pill Imo State gave Nigeria in Onuoha Vs RBK Okafor (1983) is sweetened in Ugwu Vs Ararume (2007). That is the beauty of democracy and the operation of its institutions, of which the Judiciary stands out. Does INEC have power to annul an entire governorship election for reason of alleged violence in some parts of the state?
Ogham-Emeka, a lawyer, is of Olisa Agbakoba & Associates, Lagos
