Re The Validity Of Senator Godswill Akpabio’s Nomination: Chief Femi Falana San Was Misled To Arrive At His Conclussion From Faulty Facts Made Available To Him.
By Manfred Ekpe, Esq.
The very erudite Senior Advocate of Nigeria, Chief Femi Falana SAN, on Arise TV at 8:30 pm on 22/6/2022 analyzing the forwarding of Senator Godswill Akpabio’s name by APC National Working Committee (NWC) to the Independent National Commission (INEC)(hereinafter variously called the Commission or INEC), said that it was illegal to have done so on grounds that DIG Ekpoudom (Rtrd) was the validly nominated candidate for Akwa Ibom Northwest Senatorial District who never withdrew his candidacy as required by section 31 of the Electoral Act 2022.
- The learned silk went ahead to say, quite rightly, that only the National Working Committee (NWC) of a political party has the right to organize primaries for national elections such as senatorial district primaries, while the state chapters has the power to provide venue.
- From the foregoing, it is clear the learned silk was not seized of the true facts surrounding the forwarding of Senator Godswill Akpabio’s name as senatorial candidate for Akwa Ibom Northwest senatorial district to INEC. This is clear from his faulty facts as he innocently, and as captured in paragraph (1) above. Had the learned silk been seized of the true facts, he would have arrived at different conclusion.
- Before I delve into the substance, the fact that the learned silk, Chief Falana SAN dwelt so much on Senator Godswill Akpabio’s nomination even more than the clear illegality in the case of the Senate President Ahmed Lawan, raises the presumption that a mischievous person who wants to stamp his position on the social psych of the electorate to adversely affect the mindd of voters may have misled the learned silk with faulty facts. It is a truism that even judges do sometimes fall to the antics of misleading information.
- Going forward, the true facts of the Akpabio case are that:—
- unlike what the learned silk opined, DIG Ekpoudom was never a validly nominated candidate for Akwa Ibom Northwest, so the question of withdrawal under section 31 of the Electoral Act does not arise as the retired DIG Ekpoudom had nothing known to law to withdraw. As the learned silk rightly said, only the NWC of political parties have the power to organize party primaries for national elections such as senatorial district primaries. And that the state chapter of a political party has the power to fix venue for primaries.
- b) Flowing from the above, under Article 13.4(xiv) of the APC constitution therefore, only the NWC has power to conduct senatorial primaries, and had so organized senatorial primaries in all the senatorial districts in Nigeria on 28/5/2022. The state chapter of the party led by Stephen Leo Ntukekpo its lawfully recognized Akwa Ibom State chapter chairman provided the venue. The Ntukekpo chairmanship of APC in Akwa Ibom state is in no dispute known to law. In the said primary election, Obong Ekperikpo Ekpo emerged the APC candidate for Akwa Ibom Northwest senatorial district. His name was never forwarded to INEC under section 29 of the Electoral Act as the learned silk mistakenly said. APC forwarded names of its candidates to the Commission only on 16/6/2022 after Akpabio had been nominated in a valid primary on the 9/6/2022./
Therefore, assuming without conceding that Akpabio’s name was substituted, section 31 of the Electoral Act does not apply because section 29 thereof was not yet fulfilled since APC had not by the time of the purported substitution on 9/6/2022 never submitted candidates names to INEC.
(c ) Learned silk may not have been told by his informants or he may not have addressed his mind to the fact that the Federal High Court Abuja division had declared Stephen Leo Ntukekpo as the lawfully elected Akwa Ibom State chapter chairman of APC in a keenly contested suit in suit No. FHC/ABJ/ CS/1635/2021 in which INEC was a party. The subsequent appeal was dismissed in favour of Stephen Ntukekpo the respondent in the said suit in the court of appeal, Abuja division. INEC is bound by law to obey a valid court judgment, and they so obeyed the said court judgment and has since been dealing with Stephen Leo Ntukekpo as the legally recognized Akwa Ibom State chapter chairman of APC. This was further affirmed by the commission’s letter to APC dated Reference No: INEC/L&P/FHC/COMM/22/339 dated 21/6/2022 and signed by Rose Oriaran-Anthony, Secretary of the Commission.
The informant of the learned silk, or his source of information clearly misled him by hiding from him these true facts.
(d) On the other hand, the Austin Ekanem’s faction of Akwa Ibom APC chapter which was inadvertently alluded to by the learned silk to be the Akwa Ibom State chairman/ executive of the party, and who lost the legal battle in the said Suit No. FHC/ABJ/ CS/1635/2021, had, without any powers to do so, albeit illegally and contemptuously purported to have organized primaries for Akwa Ibom Northwest senatorial district on 27/5/2022 in gross violation of article 13.4(xiv) of the party’s constitution, and in a venue not fixed by the state chapter of the party, and on a date not fixed for National Assembly primaries by the NWC. Had the learned silk been aware of this fact, he would not conclude that such brazen illegality and contempt of valid court order, had produced DIG Ekpoudom as the candidate of APC for Akwa Ibom Northwest senatorial district.
(e ) In that illegal exercise, DIG Ekpoudom was purported to have emerged as APC candidate for Akwa Ibom Northwest senatorial district. The learned silk was therefore misled to conclude that Ekpoudom is the candidate of APC for the said senatorial district, but whereas he confirmed, quite rightly, that only the NWC of a political party has the power to organize primaries for national elections including senatorial district primaries.
- ALLEGED SUBSTITUTION OF AKPABIO’S NAME
(a) The learned silk again made a faulty conclusion from faulty facts that Senator Godswill Akpabio’s name was illegally substituted with that of DIG Ekpoudom contrary to section 31 of the Electoral Act 2022. I have in paragraph 5(a) (b) (c ) (d) and (e) above demonstrated how DIG Ekpoudom is not, and has never been APC candidate for Akwa Ibom Northwest senatorial district though the learned silk was misled to so conclude.
(b) As aforechronicled, Chief Ekperikpe Ekpo emerged the APC candidate for Akwa Ibom Northwest senatorial district in a validly conducted primary organized by the party’s NWC on 28/5/2022. However, on 8/6/2022, that exercise was cancelled by the NWC based on an uncontested police report that the said primary was fraught with fraud. Therefore, since the validly nominated candidate, Ekperikpe Ekpo never withdrew his candidacy, nor died, Akpabio’s case does not fall under section 31 of the Electoral Act which provides for procedure for substitution of candidates as erroneously concluded by the learned silk based on the faulty facts made available to him.
(c ) Learned silk also erroneously concluded that there was not any primary election that subsequently produced Akpabio as candidate, which is mandatory under section 33 of the Electoral Act upon withdrawal or death of a candidate. However there was a reconduct of primary for Akwa Ibom Northwest senatorial district on 9/6/2022 where Akpabio participated and won.
- ALLEGATION THAT AKPABIO WAS PRESIDENTIAL CANDIDATE AND NEVER SENATORIAL CANDIDATE.
(a) With respect, asserting that Senator Akpabio never stood for senatorial primary is another faulty fact fed to the learned silk so that he inadvertently arrived at the faulty conclusion. The true fact is that, after the conclusion of national convention to which Akpabio participated, the window to purchase nomination forms of political parties and window for the conduct of primaries in accordance with the INEC Guidelines for the 2023 election was still open. There is no Enactment of the National Assembly, or rule of any political party nay APC that says that a person who contested the presidential primary cannot subsequently contest any other position where nomination is still open and/or that doing so would amount to fraud. And therefore that Senator Akpabio must be punished for doing do even if it means sanction of civil nature by depriving him of the ticket. Asserting so would amount to accusation of fraud which has element of crime, but whereas there is no such law declaring as fraud an act of condescending lower to contest for senatorial seat after a shot at the presidential seat, and asserting so would be against the principle of legality expressed in the legal maxim Nullum crimen sine lege. It is settled law that where there is no law, there is no wrong.
(b) Flowing from the foregoing, the distinguished Senator Godswill Akpabio purchased his nomination form, duly and lawfully stood for the reconducted primary on the 9/5/2022 when nominations were still open by both INEC and the APC Guidelines. The winner of the cancelled senatorial primary for Akwa Ibom Northwest senatorial district, Chief Ekperikpe Ekpo and other aspirants who earlier bought nomination forms and stood for the first primary election on 28/5/2022 participated in the reconducted primary. DIG Ekpoudom who did not participate in the 28/5/2022 primary as organized by the party’s NWC also did not participate in the reconducted primary of 9/6/2022 that produced Akpabio as the party’s candidate for Akwa Ibom Northwest senatorial district. DIG Ekpoudom is therefore a stranger to any question arising from such primaries.
Therefore, the learned silk was misled apparently by mischievous informants or skewed news reports which hid these facts from him thus misleading him to arrive at the faulty conclusion that DIG Ekpoudom is a validly nominated APC candidate for Akwa Ibom Northwest senatorial district in a primary he never participated.
- LEGALITY OF THE CANCELLATION OF PRIMARY BY APC NWC.
Though the power of political parties to cancel its primaries that did not meet with legal requirement, and an order for a reconduct of the primary, is not disputed, I nevertheless wish to observe that, incidentally, there appears to be a lacuna in the Electoral Act 2022 and APC constitution 2022 so that no provision is made to cater for a situation where the political party has lawful reason to cancel its primary election and order for a fresh one under the circumstances APC found itself in the Akwa Ibom Northwest senatorial primary held on 28/5/2022.
Such lawful reason to cancel a primary election can arise from a situation where a primary election was not conducted in compliance with the law. It is trite law that the court does not enforce illegality. It is also clear from the provisions of the constitution of the Federal Republic of Nigeria 1999(as altered) (Hereinafter the CFRN) and section 84 of the Electoral Act that illegal primaries shall be null. APC was not expected, and of course it was not the intention of Parliament that once a primary election is conducted, it is cast in stone and cannot be undone even in the face of overt illegality, but to await the court’s nullification as the only means to undo it.
Therefore, from the before going, it is implied in law, whether expressly provided for or not in written law, that political parties have the power to cancel illegal primaries and order fresh primaries thereof.
At this juncture may I refer to, and invoke section 10(2) of the Interpretation Act, which provides that where the law imposes on a person a duty, and the law does not expressly provide for how the duty may be carried out, the person on whom the duty is imposed shall have the power to carry out such duty in any lawful way he deems fit. By virtue of their corporate personality, political parties in Nigeria are persons as envisaged under the Interpretation Act. The provision also applies to natural persons behind the acts of political parties.
Applying the above position of the law to the case at hand, section 84 of the Electoral Act, and Article 13.4(xiv) of the APC constitution impose duty on the APC NWC to conduct *lawful and democratic* primary elections for the purpose of electing candidates for general elections, but the law does not define expressly how the political party may handle a situation whereby the political party may comply with the law where its primary was fraught with fraud as in the case of the Akwa Ibom Northwest senatorial district primary election held on 28/5/2022.
The NWC therefore derives, as inherent powers, under section 10(2) of the Interpretation Act to cancel such illegal primaries and order reconduct thereof. I therefore submit that the cancellation and reorder for fresh primary was in line with the law. And of course the learned silk, Femi Falana SAN did not and would not have denied this position of the law.
Cancellation and reorder for fresh primaries has always been done by all political parties in Nigeria with the approval of the courts.
Having so cancelled the primary for Akwa Ibom Northwest senatorial district held on 28/5/2022, in the eyes of the law there remained no validly nominated candidate for that senatorial district to be substituted under section 31 of the Electoral Act, as erroneously concluded by the learned silk based on the faulty fact available to him, which faulty fact was to the effect that a valid candidate’s name being DIG Ekpoudom was substituted for Senator Akpabio without any primary as commanded by section 33 of the Electoral Act at the event of substitution. I conclude heretofore that Senator Akpabio’s nomination on 9/6/2022 in a valid primary election and subsequent submission of his name to INEC on 16/6/2022 in compliance with section 29 of the Electoral Act had escaped the notice of Learned silk hence he never considered it when doing his legal analysis. Had this fact been available to him, he would arrive at a different conclusion.
- MONITORING OF PARTY PRIMARIES BY INEC.
Article 84(1) Of the Electoral Act makes it mandatory for INEC to monitor primaries conducted by political parties. That section says—
(1) “A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions which shall be monitored by the Commission.”
INEC is one, established under section 153(f) of the CFRN and located in Abuja but with offices in the states. There is no law in Nigeria that imposes a duty on Resident Electoral Commissioners who are heads of the states offices of the Commission to monitor primaries in their respective states and to forward report to the head office as mandatory statutory duty.
The clear import of the combined effect of sections 1(2) and 6(2)(a) of the Electoral Act 2022 is that the Resident Electoral Commissioners are subject to the directives and control of the Head office. Section 6(2)(a) thereof stipulates that the Resident Electoral Commissioner is answerable to the Commission.
Therefore, the power to monitor primary elections resides in the Commission at the head office, but such power may be delegated to the state offices through any officer of the state office whom the National Chairman of the Commission deems fit, or the national chairman may perform such function directly from the head office by delegating an officer from the head office to do so. The legal effect of this statutory provision is that the Resident Electoral Commissioner’s report in an activity he was not assigned to monitor, such as all the APC primaries in Akwa Ibom State, goes to no moment in law.
In the case of the Akwa Ibom Northwest senatorial district primaries, the national chairman of the Commission had delegated officers from the head office to monitor to the primary. This was confirmed by the national commissioner of the Commission, Muhammed Haruna.
CONCLUSION
Had the learned senior advocate, Chief Femi Falana SAN been seized of all the facts of the matter as relating with the forwarding of the name of Senator Godswill Akpabio to INEC as the Akwa Ibom Northwest senatorial district candidate of APC, he would have arrived at a different conclusion other than that which he did on Arise TV on 22/6/2022 by 8:30 pm and widely quoted by the media.
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