Federal Capital Territory High Court sitting in Apo, Abuja, has granted leave for substituted service on Ibrahim Magu, the Acting Chairman of the Economic and Financial Crimes Commission (EFCC).

Justice Silvanus Oriji gave the order of substituted service on Tuesday, after listening to the submissions of Chief Mike Ozekhome (SAN), counsel to an Abuja-based lawyer Monday Ubani and former senator Christopher Enai.

On March 26, Justice Orji granted leave to an ex-parte motion filed by Ozekhome for EFCC to charge Ubani and Enai to court or release them on bail on or before March 28.

The judge held that the court had the power to make an order for substituted service of the process where it appears that prompt service cannot be conveniently effected.

”In exercise of the power of the court under Order 7 rule 11, I grant this motion,” he said.

Ishaya Markus, the bailiff, was denied access to Magu by armed security personnel at his office at the EFCC headquarters.

Ozekhome said the operatives told the bailiff that he could only see Magu on an invitation.

In the ex-parte motion, Ozekhome prayed the court to order form 48 and 49 be served on any officer at the mail registry of the EFCC Chairman and the legal department at the headquarters in Jabi.

He also prayed an order of the court to post same at the gate of the EFCC’s head office.

Ubani, a former President of the Ikeja branch of the Nigerian Bar Association (NBA), and Enai, the former lawmaker representing Bayelsa, were invited and detained by EFCC operatives on March 19.

They were detained for standing as sureties for Ngozi Olejeme, who once served as the Chairman of the Nigeria Social Insurance Trust Fund from 2009 till 2015.

They are still yet to be charged to court by the EFCC.

Saharareporters

The African Union has disqualified Dr Ngozi Okonjo-Iweala from vying for the office of the Director General of the World Trade Organisation, SaharaReporters has exclusively gathered.

In July 2019, the Executive Council of the AU invited member states to present nominations into the office of the DG of the WTO so that the AU would agree on a consensus candidature.

Nigeria initially nominated Fedrick Agah while Benin and Egypt fielded Messrs Eloi Laourou and Abdulhameed Mamdouh respectively.

However, in a document from the Office of the Legal Counsel of the African Union, Reference Number: BC/OLC/24/5056.20 dated June 15, 2020 and sighted by SaharaReporters, the African Union says the nomination of Okonjo-Iweala violates Rule (11), 1, 2 and 3, Rule 12 and Rule 15(3) of the rules of procedure of the committee on candidatures within the International System of the AU as well as Council’s Decisions Ex CI 1072 (XXXV), Ec CI Dec 1090 (XXXVI) and Assembly Dec 795 (XXXIII).

The AU says its Executive Council had endorsed the nominations of Fedrick Agah, Eloi Laourou and Abdulhameed Mamdouh before Nigeria sought to substitute its nomination. 

Meanwhile, the council’s endorsement was for the nominees in person and not for their countries. 

In addition, the AU says Nigeria’s new nomination of Okonjo-Iweala did not meet the submission deadline and there are no more vacancies into, which Nigeria can make nomination. 

The AU wrote, “It is a recognised principle of international law that a sovereign state has the right to substitute and replace a nomination of its citizens as it may wish for a position. 

“However, the sovereign right does not endow that state any right to change existing rules, relevant decisions of the Executive Council and decisions of the ther policy organs of the union. A decision of the Executive Council should only be changed by another decision of the council not by any member state and a decision of the Assembly should be changed by a decision of the Assembly not by a member state.”

Saharareporters

Meanwhile, 65 Non-Governmental Organizations (NGOs) and 60 individuals have jointly issued a statement condemning the order of the Chief Magistrates Court in Harare, Zimbabwe, to bar leading human rights lawyer, Beatrice Mtetwa, from representing political detainee, Hopewell Chinono.

This is contained in a statement issued by them dated 24th day of August, 2020 which was made available to TheNigeriaLawyer (TNL), where they described the Ruling as one with“great concern”. The statement is signed by leading organisations & lawyers from over 35 African countries. Signatories include former Chief Justice of Kenya, Dr. Willy Mutunga; president of the International Federation of Human Rights, Botswana’s Alice Mogwe, CEO of Pan-African Lawyers Union, Don Deya, & former Chairman of Nigeria’s Human Rights Commission, Chidi Anselm Odinkalu.

“We note that Beatrice Mtetwa testified before the court that she has no control over the said Facebook page and therefore, did not author or authorize the said publications. She is not listed as an administrator of the said Facebook page” the statement said.

The ruling of Regional Magistrate, Ndunna N. of the Regional Court for the Eastern Division, Harare has sparked off debates in the ongoing state’s prosecution of a Journalist in State V. Hopewell Chin’ono (CRB No. Acc..77/2020), when the Court barred a Lawyer, Beatrice Mtetwa from further representing her client (accused person) and also recommended her for possible prosecution over a post she was credited to have made on Facebook titled “Beatrice Mtetwa and the rule of law.”

The prosecutor claimed that the post brought the court into disrepute.

However, the Facebook post in question reads as follows:

“Where is the outrage from the International Community that Hopewell Chin’ono is being held as a political prisoner? His life is in serious peril. Raise awareness about his unlawful imprisonment. Do not let him be forgotten You or someone you love could be the next one abducted from your home and put in leg irons.

“SPEAK OUT”

In a bail application filed by the Lawyer on behalf of her client, the counsel to the state drew the attention of the Court to the above post, asking that defence counsel, Ms. Mtetwa, be disqualified as a counsel in the case on the strength of the post.

“The state alleges these posts are attributable to the lead counsel herein one Beatrice Mtetwa to be precise and that as a result she must be debarred from appearing before the court as she has become personally involved so as to diminish her objectivity as an officer of the court.” The Judge said.

Prior to this Facebook post, it was said that the Lawyer has written two letters, dated 24th day of July, 2020 and another one dated 27th day of July, 2020, considered to be demeaning to the integrity of the Court in what she said was a political persecution of her client.

“Both these letters characterise the court and the legal system in picture portrayed in the Face Book posts at Beatrice Mtetwa and the rule of law.” The Judge said.

Meanwhile, in the Ruling of the Court which was made available to TheNigeriaLawyer (TNL), some excerpts therefrom read:

“The posts then clearly continue to portray that picture of a legal system and a court that is perpetuating the alleged abduction. The posts rebrand the accused to be a political prisoner and this court to be complicity in the dealing with the alleged now political prisoner. The world is being invited to outrage.”

“Clearly the posts demean the court severely. However, whether the contempt is in the face of the court or not in the face of the court, it is important that it should be borne in mind by courts themselves that the court should use its summary powers to punish for contempt sparingly.”

“Defence Counsel like a public prosecutor has a mandate to present her case in the utmost diligent manner and within the confinements of the acceptable decorum of a legal process. He or she must not exhibit an attachment to the case which goes beyond the acceptable professionalism of a lawyer so as to be personally involved; or so as to appear to be serving multiple constituencies.”

“A lawyer who is professionally seized with a case does not conduct the case with such desperation. This moment you are in court arguing the case, the next you are writing letters in bad taste and smuggling them into the record and the next you are posting on social media that the whole trial process is for political expediency and that an accused, your client, is a political prisoner and inviting the whole world to show its outrage.”

The Court made the following orders:

“1. That the application for disqualification of Ms Beatrice Mtetwa as a counsel participating in this matter is hereby granted as prayed for by the state

2. That the Prosecutor General consider institution of prosecution against Lead Counsel Beatrice Mtetwa for contempt of court emanating from disparaging contents of her letter of 27 th posts at Beatrice Mtetwa and the rule of law July 2020 and the Face Books

3. That a copy this judgment be made available to the Law Society of Zimbabwe

4. The proceedings are postponed to an agreed date between the state and the other co counsels to enable accused to consider his legal representation in view of this ruling.”

Reacting to these orders, the groups noted that as a lawyer, assuming the said post emanated from her as alleged, Ms. Mtetwa was protected by the dint of right to freedom of expression under Section 61 of the Constitution of Zimbabwe, Article 19(2) of ICCPR, Article 9(2) of African Charter and Principle 23 of United Nations Basic Principles on Role of Lawyers.

Furthermore, it was contended that her disqualification has undermined “the accused person (Hopewell Chin’ono) right to legal representation which is guaranteed in section 70(1)(d) of the Constitution of Zimbabwe” and that “this undermines the accused person right to fair trial.”

“We therefore express our concerns over this judgment as it undermines not just Beatrice Mtetwa’s right to practice law but it has a chilling effect on many other associated rights.”

In addition, they noted that “ordinarily, courts must be the shield that protects these rights rather than being the sword that destroys fundamental rights.”

“We call on Zimbabwean authorities to respect, protect, promote and fulfill the human rights of everyone, including Beatrice Mtetwa’s right to freedom of expression and to practice her profession, the right of the accused to fair trial including legal representation. There is no justice without freedom and the rule of law.” The statement concluded.

The Senior Staff Association of Nigerian Universities (SSANU) has called on President Muhammadu Buhari, who is the Visitor to the University of Lagos (UNILAG), to re-constitute the special visitation panel set up to investigate the crisis rocking the university.

In a letter written to the president, SSANU said it called for the review of the visitation panel to reflect neutrality, fairness and proper representation.

The union condemned the panel, insisting that the principle of natural justice was lost in the present composition of the visitation Panel.

In a letter dated August 24, 2020 and addressed to President Buhari, the union said: “While SSANU appreciates the prompt intervention of the Visitor in the ongoing crisis and the sincere efforts in nipping the crisis in the bud, the directives of the Visitor as contained in the Press Release have a further tendency to cause more crisis as issues bordering on due process and fair hearing have been trampled upon arising from the Visitor’s directives under reference.

“The crisis in the University of Lagos has the Academic Staff Union of Universities (ASUU) as a major participant. Indeed, ASUU is the complainant in this matter.

“The composition of the Special Visitation Panel with a preponderance of Professors (ASUU members) is an indication that the decisions of the Panel would be tampered with by ASUU. The fact that they are former vice- chancellors also implies the tendency to protect one of their own – an embattled vice-chancellor.

“It is our informed observation therefore, that a fair and unbiased Panel, representative of all stakeholders in the University system should have included at least a retired Registrar, a retired Bursar, and a prominent individual with undoubted integrity, who should be a former Pro-Chancellor and not a Professor, as Chairman of the Panel. With the present composition and membership of the Panel, the Federal Government may have unwittingly handed over the Panel to ASUU to return victory to its member and condemn all others.

“SSANU therefore calls for a re-composition of the Panel to reflect neutrality, fairness and proper representation and not using ASUU to probe itself as the situation currently is. The principle of natural justice is lost in the present composition of the Visitation Panel and it is totally condemned by SSANU.”

On the directive recusing the Pro-Chancellor, Dr Babalakin from official duties, SSANU noted that President Buhari may have inadvertently fallen into the ASUU position of seeing Dr Babalakin as the problem of the University of Lagos.

The letter, signed by the Union President, Comrade Samson Ugwoke, said: “SSANU appreciates the intention of the Visitor by directing the recusal of the Pro- Chancellor and Professor Ogundipe from official duties during the period of the Visitation. It is assumed that the directive on recusal is to enforce peace in the University pending the outcome of the Visitation.

“SSANU however wishes to note that the Visitor may have inadvertently fallen into the ASUU position of seeing Dr Babalakin as the problem of the University of Lagos. To the best of our knowledge, the decision to remove Professor Ogundipe was a decision of Council and not Babalakin.

“It would have been fairer if the Visitor had directed the entire Council to recuse itself from official duties until the end of the Panel’s assignment than asking Babalakin alone to recuse himself.

“We wish to therefore observe that this directive personalizes the decisions of Council to Dr. Babalakin which in itself does not do justice to the issues on ground.”

The letter added: “SSANU while not unconcerned about the principles of natural justice i.e. fair hearing and due process in the removal of Professor Ogundipe as Vice- Chancellor of University of Lagos, is equally worried that the underlying allegations of fraud and corrupt practices seem to be lost due to technicalities.

“Government should be concerned that the major agitation of the loudest voices in the University system has always been that of poor funding of the University system. Ironically, those same voices use every tricks, threats and forceful actions to ensure that corrupt practices that fritter away the meagre resources allocated by Government are covered up, while perpetrators are allowed to escape.

“This is reflective in the actions of the ASUU Branch of University of Lagos, pre-emptively ensuring that the Governing Council of University of Lagos would not sit to take decision on the alleged infractions of Professor Ogundipe, by threatening the Pro-Chancellor not to step into the University of Lagos, and declaring him persona non grata.

“This violent trend is only a stock in trade of ASUU to cover up its own and has been witnessed in many universities where allegations of financial improprieties have been levelled against Vice-Chancellors. It would be recalled that the Autonomy Act was brought into being by acceding to the demands of ASUU.

“This Act has however caused ASUU to hijack Council with a majority of Council members being its members thereby rendering the Federal Government powerless in the running of the Universities. Only Universities with strong-willed Pro-Chancellors have a semblance of Councils. Others are at the whims and caprices of vice-chancellors once they have the support of ASUU.

“This is the reason for the loud complaints of ASUU where such strong-willed pro-chancellors exist. to allow the status-quo to remain would be sounding a death knell for the university system.”

President Muhammadu Buhari on Monday approved the composition of the Governing Council and appointment of Executive Secretary of the National Commission for Persons with Disabilities in line with the Discrimination Against Persons with Disabilities (Prohibition) Act 2019.

According to a statement by Special Adviser to the President on Media and Publicity, Femi Adesina, according to the Act, the Commission shall be headed by a Part-Time Chairman and six Members who shall be Persons with Disabilities representing the geo-political zones of the federation subject to confirmation of the Senate for a four-year term of office in the first instance and may be reappointed for a second term of four years and no more.

The Executive Secretary, who shall be responsible to the Council for the implementation of the policies and administration of the daily affairs of the Commission, shall also be a Person with Disability with a five-year tenure in the first instance and may be reappointed for a second term and no more.

Below are the names, designations and geo-political zones of members of the Management of the Commission: Hon Dr Hussaini Suleiman Kangiwa – Chairman – North West; Oparaku Onyejelam Jaja – Member – South-East; Philomena Isioma Konwea – Member – South-South; Omopariola Busuyi Oluwasola – Member – South-West and Amina Rahma Audu – Member – North-West.

Others are Mrs Esther Andrew Awu – Member – North-Central, Abba Audu Ibrahim – Member – North-East and James David Lalu – Executive Secretary – North-Central.

The National Drug Law Enforcement Agency (NDLEA) says single ladies in the country might have to undergo drug tests before embarking on marriages.

Mohammed Mustapha Abdalla, NDLEA chairman, spoke on Friday during the destruction of illicit substances seized in Maiduguri, Borno state capital.

Abdalla said drug tests may have to be included in premarital screenings due to the increase in the rate of drug addiction among girls and married women across the country.

He also said the target of illicit trafficked drugs, which hitherto used to be among the male youthful population, was fast expanding to now include teenage girls, young women, and old married women.

“As an extension of the proposed Drugs Integrity Test Policy in the public service, the NDLEA is also considering partnering with religious leaders to make drug test a prerequisite for marriage in Churches and Mosques just as the case of HIV/AIDS and genotype test, the NDLEA boss said.

“We can no longer remain indifferent to the problems and refused to take responsibility in an effort to control drugs, we must come to term that drugs issue is a shared responsibility for all in the society.

“Government at all levels, community and religious leaders, parents, social workers, the media, youth organisations and policy makers should see it as a point of duty to come together and identify with our office efforts of combating drug abuse.”

By Raymond Nkannebe

INTRODUCTION

The dawn of the 4^th Alteration Act, No. 21 of 2017 which came into force on 8^th June, 2018 might have wrought a further paradigm shift in the role play of the Independent National Electoral Commission (INEC) in the conduct and management of elections, particularly in regards to its powers to disqualify candidates of political parties from contesting an election.

Whereas the Commission had always exercised this power, the ugly events that gave birth to the landmark decision of the Supreme Court in the case of Amaechi v INEC, particularly INEC’s complicity, led the 6^th National Assembly to amend the then 2006 Electoral Act introducing a number of amendments one of which took away the wide powers of the Commission to disqualify candidates and donated same to the Courts. By the proviso to the extant 2010 Act (as emended), the “Commission shall not reject or disqualify candidates(s) for any reason whatsoever”.

However, with the coming into force of the 4^th Alteration Act, that power seems to have been restored by the legislature.  But this time, in the Constitution. By dint of section 285(14)(c) of the Constitution it’d appear the Commission may now have the power to exclude and/or disqualify a candidate, by the sheer force of circumscribing such administrative decision within the scope of actions that could transmute into a pre-election matter.

The provision provides:

“(14) For the purpose of this section, “pre-election” matter means any suit by-

(a)……………………

(b)…………………..              

(c) a political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election”.

With the above provision, which was written into the Constitution for the first time in 2018, one may argue with some force  that the delineation of a suit challenging INEC’s disqualification of a candidate as a pre-election matter, has restored the Commission’s power so to do, by way of incorporation by reference; an accepted canon of interpretation. However, this territory remains largely uncharted as far as our electoral jurisprudence goes.

The situation however reared its head recently in the Bayelsa State Governorship Election Petition Tribunal which rendered its decision last Monday, nullifying the Nov. 16^th 2019 Governorship Election held in the State, in a split decision, and ordering a re-run poll in 90 days barring any right of appeal that may be exercised by the aggrieved party.

There, one of the core issues that agitated the minds of the 3-man panel was whether the decision of INEC disqualifying the candidates of the Advanced Nigeria Democratic Party (ANDP) (“the Petitioner”), for purportedly submitting the name of an unqualified candidate was ultra vires its powers. And if answered in the negative, whether it did not take the Petitioner’s case outside the realm of a post-election matter?

FACTS OF THE CASE

It is sufficient for the purposes of this discourse, to state the brief facts of the quite interesting case.

By its Amended Time Table of Activities for the Governorship Election in Kogi and Bayelsa States, INEC fixed September 9^th 2019, as the deadline for the submission of list of nominated candidates and their statutory Forms CF 001 and CF002. While other political parties submitted their respective forms in good time, the Petitioner was only able to do so on the last day of submission. By the time it did, its candidate for the office of Deputy–Governor, David Peter Esinkuma as it turned out, was under-aged not having attained the constitutionally nominated age of 35.

By its letter dated, 13^th September, 2019 INEC wrote to the Petitioner informing it of this finding. Having been apprised of this development, the Petitioner wrote back to INEC on 21^st September, 2019 substituting the nominee, with one Miss Inowei Janet. As though the Petitioner-Political Party were jinxed, this second nominee turned out to be also under aged. But that was a secondary matter, as INEC in its letter of 27^th September, 2019 informed the Petitioner that it was too late in the day to submit a fresh nominee having not submitted a qualified candidate before the deadline of 9^th September. It also informed the Petitioner that her name and logo would not be on the ballot at the scheduled elections. The die was cast. The Petitioner wrote back a week later, precisely on the 3^rd of October, urging INEC to rescind its decision, and threatening legal action. INEC would not budge. Long story short, the elections held without the Petitioner being on the ballot.

Aggrieved, it filed a Petition at the Bayelsa State Governorship Election Petition tribunal. That petition would subsequently be withdrawn. Following the declaration and return, by INEC of Duoye Diri of the PDP as the winner of the election, in compliance with the orders of the Supreme Court on 13^th February, 2020 the Petitioner filed a fresh petition on 26^th February, 2020 seeking amongst other reliefs an order that the election of Nov.16^th 2019 be declared null and void, having been “unlawfully excluded” from the Petition. It is that petition that germinated into the decision which I had highlighted above.

THE TRIBUNAL’S DECISION

While the majority decision held that INEC had no power whatsoever to disqualify a candidate relying on the provisions of section 31(1) of the Electoral Act, 2010 (as amended), the minority/dissenting judgment anchored on the provisions of section 285(14) (C) of the Constitution to hold that the disqualification of the Petitioner by INEC was lawful, the Petitioner having not submitted a Deputy-Governor nominee who met the Constitutional age requirement per section 177 and 187(1) of the Constitution. With the implication that the 4^th Alteration Act abrogated the proviso to section 31(1) of the Electoral Act which prohibits INEC from disqualifying a candidate for any reason whatsoever.

With no intention to critique the Tribunal’s decision which is expectedly on its way in the appellate process, the primary concern of this academic inquest is to interrogate the limits of the powers of INEC to disqualify a candidate under the Electoral Act, and to ascertain whether the 4^th Alteration Act has rendered the proviso to section 31(1) of the Electoral Act, otiose.

PRE 4^TH ALTERATION ACT ELECTORAL REGIME

Matters came to a head in Action Congress v. INEC (2007) 12 NWLR (Pt. 1048) 222. There, the candidate of the defunct Appellant-Political Party despite having been nominated for the office of the president of the Federal Republic of Nigeria for the 2007 general election, was disqualified by INEC on the ground that he was not qualified by virtue of section 137(i) of the 1999 Constitution (as amended). Agreeing with the earlier judgments of the trial Federal High Court and the Court of Appeal, the Supreme Court put it beyond the realm of doubt that the Commission did not have such powers at page 265 paras.B-H of the report thus:

“Now, there is no doubt that Section 137(1)(i) of the 1999 Constitution is a provision disqualifying any candidate to contest for the seat of the President of the Federal Republic of Nigeria. As a matter of fact, the entire Section 137 deals with the situations in which a person is disqualified to contest for the post of the President. While Section 131 deals with the situation when a person may be deemed to be qualified to contest for the post of the president in an election, the fundamental question is whether the respondent has the authority and the competence to determine whether a candidate is caught by the provisions of Section 137(1) specifically in this case Sub-section (1)(i) whether  on the facts, the respondent can pronounce on the qualification of the 2nd appellant on its own steam.

To put it another way, whether the provisions of Sections 137(1)(i) are self-executing and can be determined by the respondent. In my view, it is now trite that a principle of interpretation of the Constitution or statute is that a provision should not be interpreted in isolation but rather in the context of the Constitution or the statute as a whole. See Awolowo v. Shagari (1979) 6-9 SC 51; Bronik Motors v. Wema Bank (1983) 1 SCNLR 296; and the recent case of Buhari & Anor v. Obasanjo & Ors. (2005) 13 NWLR (Pt. 941) 1 at 219. The subsection must be read in the context of constitutional democracy established for the country by the Constitution. It is very clear that the power to disqualify a candidate is not conferred on the respondent by Section 137 of the Constitution and I have searched the Constitution, I cannot find in any other provision where such a power has been conferred either expressly or by necessary implication on the respondent to disqualify any candidate”.

Later, in Amaechi v. INEC & 2 Ors (2008) 1 S.C. (Part 1) 36 @ 275 lines 5-15, the apex Court had reason to re-echo the principle thus:

“I should here also reiterate the limit of the powers of INEC as it relates to candidates for election while some duties are conferred on INEC per Section 32 (supra) it is obvious from the clear and unambiguous provisions of the aforesaid section of the Electoral Act, 2006, that the Commission lacks the power to disqualify any candidate on its own. The power of disqualification of any candidate from contesting an election after his name has been forwarded to the commission belongs exclusively to the Federal High Court or the State High Court. This court (Supreme Court) has reiterated this principle in a number of its decided cases.”

Now, the rationale behind this principle no doubt is to enhance the impartiality of the Commission and to underscore its role as an umpire who should not be seen to be conferring undue advantage to some political parties or their candidates. The Supreme Court stated as much in A-G Federation v. Abubakar (2007) 10 NWLR (PT.1041) PG 1 @ 183 – 184 PARA H—A where it held:

“Also the Independent National Electoral Commission (INEC) by its statutory existence is an independent body with constitutional powers to conduct elections in Nigeria. It must not only be an umpire, it must be seen in the eyes of reasonable men to be an impartial umpire in the conduct of an election. INEC must never by an act of omission or commission place itself in a position where imputations of partiality in favour of one party against another one will be levelled against it. Neutrality must be the watchword of the body-it must always remain fair and focused.”

This position has since crystallized in a long league of cases. In order to further instill confidence in the system and enable citizen participation in the electoral process, the draftsman of the 2010 Electoral Act, enacted sections 31(5) and (6) which gave members of the public the powers to challenge the qualification of candidates seeking elective offices, through the courts vide a pre-election suit.

The provision reads:

31(5) Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false, may file a suit at the Federal High Court, High Court of  State or FCT against such person seeking a declaration that the information contained in the affidavit is false.

The affidavit referenced here, is the affidavit of facts usually sworn to by an aspirant saying that he/she has “fulfilled all the Constitutional requirements for election into that office” as mandated by section 31(2) of the Electoral Act. Section 31(6) of the Act, on the other hand, fixes the Courts with the responsibility of disqualifying a candidate who runs foul of section 31(2) of the Act. It says, “If the Court determines that any of the information contained in the affidavit or any document submitted by that candidate is false, the Court shall issue an order disqualifying the candidate from contesting the election”.

When the above sections are read in consonance with the proviso to section 31(1) of the Act which says, “…the Commission shall not reject or disqualify candidate(s) for any reason whatsoever” the irresistible conclusion is what the proviso says, namely: INEC cannot disqualify a candidate for any reason WHATSOEVER. [Emphasis supplied] And there has been a confluence of judicial opinion on the point, at least until the dawn of the 4^th Alteration Act.

HAS THE LAW CHANGED UNDER THE 4^TH ALTERATION ACT?

As I had alluded before now, by suggesting that INEC now has the powers to disqualify a candidate under section 285(14) (c) of the 1999 Constitution, and nominating a challenge to such decision a pre-election suit, the question that begs consideration is whether the 4^th Alteration Act is in conflict with the provisions of section 31(1) of the Electoral Act so as to put it in limbo?

In the dissenting judgment of The Hon. Justice M. Sirajo of the Bayelsa State Governorship Tribunal, the learned jurist eloquently and quite convincingly argued in favor of a possible abrogation of the Electoral Act by the Constitution thus:

“The proviso to section 31 (1) of the Electoral Act clearly prohibits the Independent National Electoral Commission from rejecting or disqualifying any candidate submitted to it by a political party for whatever reason. The implication of this proviso is that even where it is apparent from the Form CF 001 that a candidate submitted to it by a political party for election in to the Office of Governor of a State is not a citizen of Nigeria; or he did not attain the age of 35 years; or he is not educated up to school certificate level; or he has been elected to such office at any two previous elections; or he is a lunatic; or he has been convicted for an offence involving dishonesty in the last ten years; or he has been found guilty of contravention of the code of conduct; or he is an undischarged bankrupt; or he is a civil servant who has not resigned his appointment; or he is a member of any secret society; or he has presented a forged certificate, the Independent National Electoral Commission cannot under any of these constitutional constraints reject his nomination. This scenario appears absurd and practically inapplicable. As a way out, the new subsection 14 (c) of section 285 of the Constitution was introduced by the Legislature. In defining what constitute pre-election matters, the Constitution restores, by necessary legal implication, the power of INEC to disqualify and exclude a candidate or a political party from an election. The section anticipates that INEC may decide to disqualify a candidate from participating in an election. By taking away the power of INEC to reject or disqualify candidates who did not satisfy the constitutional requirement for contesting such election, the proviso to section 31 (1) of the Electoral Act is on collision path with the provision of section 285 (14) (c) of the Constitution which recognises such power. That proviso must give way to the Constitution which is the Supreme law of the land, as it is void to the extent of its inconsistency with the provision of the Constitution. In the final analysis, I hold that the 1st Respondent has the power under the Constitution not only to prepare time table for election activities but also to reject and disqualify candidates who fail to satisfy the constitutional requirement for the office they are contesting”.

I am inclined to agree with the dissenting opinion of the learned trial Judge, and I do so advisedly knowing that a dissenting judgment however erudite lacks jurisprudential force. Yet, when considered against the backdrop of the innovations of the 4^th Alteration Act, it could be inferred that the draftsman intended to donate such powers to the Commission by parity of reasoning. And the rationale may not be farfetched: to put the Commission in the same position as members of the public in scrutinizing aspirants for elective office and to ensure valid nomination of candidates. It would be absurd as posited by the learned trial Judge, for the electoral Commission to be faced with a clear case of non-qualification of a candidate submitted to it, only to wriggle its hands in helplessness purportedly handicapped by a legislation. This seems to me, the mischief now cured by the 4^th Alteration Act. But that would abide a determination by the Supreme Court to finality.

In my considered opinion, this innovation does not in any way extinguish the provisions of sections 31(5) and (6) of the Electoral Act. If anything, it expands the scope to allow the Commission exercise powers of disqualification, particularly in cases where the disqualifying element are so glaring such as played out in the Bayelsa Governorship Petition where the Deputy-Governorship candidate of the Petitioner was clearly under the Constitutionally nominated age of 35, by the admission of the Party Chairman of the Petitioner. That is to say, members of the public are not estopped from taking the benefit of section 31(5) of the Act to challenge the qualification of aspirants in line with section 31(6) of the Act. This is to my mind, the only way, the fruits of the 4^th Alteration Act could be reaped in that regard, otherwise an unscrupulous political party whose candidate is clearly not qualified under the Constitution, may avoid litigation (by whatever means) and field such a candidate on the ballot if the role of INEC in the process of screening candidates were merely mechanical.

CONCLUSION

Whether the 4^th Alteration Act has unfettered the hands of INEC in disqualifying candidates submitted to it by Political Parties remains a grey area in our extant electoral jurisprudence. Be that as it may, the recent judgment of the Bayelsa State Governorship Election Petition Tribunal happily has helped to put it in issue and would one way or the other be determined by the Supreme Court. Assuming the apex Court resolves the logjam in favour of INEC, efforts must be made by the 9^th National Assembly to codify the findings of the Court in the ongoing amendment of the Electoral Act towards resolving the seeming conflict between the 4^th Alteration Act and section 31(1) of the Electoral Act 2020 (as amended). Such clarity is important for certainty and predictability of our electoral jurisprudence as we prepare for major elections in Ondo, Edo and Anambra States.

Raymond Nkannebe, a Legal Practitioner is of Synergy Attornies. He

By Steven Kefas

Armed gunmen suspected to be Fulani Herdsmen Militias earlier today invaded Prince Academy Damba-Kasaya in Kunai Ward of Chikun Local government area of Kaduna State, North West Nigeria.

The Gunmen, riding on motorcycles arrived the community at about 7:45am and operated for about 45 minutes shooting sporadically into the air while abducting yet to be identified number of students who had gathered to write the Junior School Certificate Examination (JSCE) alongside some villagers, an eyewitness told Wardesk News reporter.

A villager, Mr Bawa Wakili who confirmed the sad incident to Wardesk reporter, said he was riding on a motorcycle when he sighted the gunmen from afar approaching the community and quickly raised alarm, he said the gunmen went straight to the school and cart away with some students before abducting some villagers.

Mr Wakili said a Church Aminchi Baptist Church Damba-Kasaya was set ablaze by the gunmen. He said some villagers were also abducted alongside the students.

As at the time of filing this report one person was confirmed killed while others sustained gunshots injuries.

The Gunmen suspected to be Fulani Herdsmen Militias also went away with some mortocyles belonging to the villagers.

“When the attack started, the military came in and were even trailing the attackers but withdrew along the way for reasons best known to them, leaving us to our fate”. A youth leader who prefers to be anonymous revealed.

The Federal government had only recently reopened schools across the country to enable graduating students in secondary schools seat for their final exams. This prompted the reopening of schools in Kaduna state.

Chikun Local government has come under series of fulani herdsmen attacks lately with several people either kidnapped for ransom or killed and many communities have been displaced.

Kaduna state has been on the news since 2015 as the headquarter of kidnappings and banditry where no fewer than 366 villagers have been killed between January and July 2020 alone, according to Amnesty International.

The Kaduna state government has been widely criticized for what many believed to be poor handling of the lingering security challenges in the state, resulting in his withdrawal from the NBA AGC recently, as even under 24 hours imposed curfew the Militias have continued to carry out deadly attacks unabated in the Southern parts of the state.

In a similar protest, the Kaduna State Chapter of the Muslim Lawyers Association of Nigeria (MULAN) directed its members to boycott the AGC over the withdrawal of Governor Nasir El-Rufai’s invitation as speaker at the conference.

The group, at a press conference in Kaduna, also asked Muslim lawyers across the country to boycott the conference, saying the decision of the NBA NEC smacked of what it called parochialism, favouritism and ethno-religious considerations.

The Vice Chairman of the association, Abbas Ma’sanawa, who read MULAN’s position, said the same NBA had kept mute over the “genocide going on in the North East, banditry and kidnappings in Katsina, Zamfara, Niger, and Kebbi States, and Giwa and Birnin Gwari in Kaduna State,” while also ”giving surreptitious ethnic cover to Southern Kaduna as if lives matter more in some parts of the country over the others.”

The group said: “Lives lost in Batsari, Katsina State far outnumber that of eight local governments of Southern Kaduna put together. This isn’t to say MULAN Kaduna justifies loss of lives anywhere and in any guise. MULAN Kaduna wonders where was the posturing of NBA at the many lives Iost in Borno State.

“Without mincing words, the constitution of the Federal Republic of Nigeria, 1999 precisely, Section 10 states in clear terms that “the Government of the Federation or of any state shall not adopt any religion as a state religion.

“We are witnesses to how Governor Nyesom Wike demolished a mosque and came out openly to say, ‘I repeat once again without apologies, Rivers is a Christian State. That is why nobody can touch us.’

“We believe that NBA NEC deemed these utterances glorious, hence the lofty invitation to Nyesom Wike to use our hallowed platform to propagate his governance inklings and dis-invitation of Governor El-Rufai.

“MULAN Kaduna Branch believes that what is sauce for the goose should be sauce for the gander.

“The President of the Nigerian Bar Association, Paul Usoro, SAN said NEC’s decision yesterday had no ethnic or religious colouration or connotation howsoever and whatsoever.

“MULAN Kaduna Branch asks Mr. President if the topic: Who is a Nigerian? has anything to do with Southern Kaduna. An honest answer in this direction would reveal the clandestine motive of the NBA.

“Paragraph 7 of the letter of Mr. President requesting the Governors’ Forum to communicate the dis-invitation to His Excellency, Mallam Nasir Ahmad El-Rufai is certainly sinister as MULAN Kaduna wonders if the letter inviting him was routed through the Governor’s Forum in the first place!

“What stops Mr. President from sending the letter of dis-invitation to Governor El-Rufai directly?

“There is certainly more to it than meet the eye in the circumstances, and to be modest, the NBA President’s assertion as contained in the letter to the NGF cannot be far from the truth as to the ethnic-religious drive in the whole of what have played out.

“In view of the unfortunate decision of the NBA NEC, MULAN Kaduna Branch is left with no option but to instruct its members to withdraw their participation in the forthcoming NBA AGC and enjoins all Muslim lawyers in Nigeria to join in the boycott.”

Also reacting, the Supreme Council for Shari’ah in Nigeria described the action of the NBA as irresponsible.

Secretary General of the council, Nafi’u Baba-Ahmed, also a lawyer, said: “The unfortunate development has cast a terrible smelly smear on the NBA, which until recently, was controversially regarded as representing the best ideals of justice, equity the good conscience of the society.

“The decision taken by the Nigerian Bar Association (NBA) to delist Mal. Nasiru Ahmad El-Rufa’i, the Executive Governor, Kaduna State, as one of the speakers at its virtual annual national conference is, to be charitable, regrettable and irresponsible of an institution of which I had hitherto been a proud member for over 40 years.

“We want to believe that the decision is not representative of all its right thinking members. For clearly, it has already taken sides in the Southern Kaduna crises, contrary to its members’ training and what it loudly preaches, without listening to the narrative from the other side.

“Clearly, lowly, narrow political and religious sentiments have beclouded the judgment of the leadership of the NBA, forgetting the most basic principle of their training and that its members cut across all sides of the divide.

The virtual AGC is scheduled to run from Wednesday to Friday.

It has the theme, ‘Step forward.’

It is expected to have Vice President Yemi Osinbajo and the Attorney-General of the Federation, Abubakar Malami (SAN), among others, in attendance.

El-Rufai was initially listed as one of the guest speakers in a session entitled ‘Who is a Nigerian?… A Debate on National Identity.’

Others billed to speak at the session are Rivers State Governor Nyesom Wike; former Anambra State governor Peter Obi and a cleric, Tunde Bakare; former minister Oby Ezekwesili, and immediate past ECOWAS commissioner for political affairs, peace and security, Salamatu Suleiman.