16th December, 2019

ESSIEN UDIM RERUN; THE APC IS WITHOUT A CANDIDATE

It is public knowledge that the All Progressives Congress (APC) will not be participating in the rerun elections for Akwa Ibom North West Senatorial District. This is consequent upon the press statement released by the Independent National Electoral Commission (INEC) on Monday the 16th day of December, 2019.

The Court of Appeal, Calabar Judicial Division, while giving judgment in a petition by Senator Godswill Akpabio challenging the declaration of Senator Chris Ekpenyong of the Peoples’ Democratic Party (PDP) as winner of the election in the Senatorial District, ordered that INEC should conduct a fresh election in Essien Udim Local Government Area of Akwa Ibom State. It is worthy of note that Essien Udim is just one out of the

Senator Akpabio, in a letter dated the 2nd day of December, 2019 and addressed to the APC National Chairman, Mr. Adams Oshiomhole, had notified the party of his withdrawal from the rerun, due to his current ministerial duties, and urged the party to find a replacement and send the name to INEC for approval.

The press statement as released by INEC has it that it would not allow the APC to replace its candidate for the rerun, reason being that the time frame within which the APC would have done the purported substitution had long lapsed. This position as taken by INEC is in tandem with the extant electoral regulations and judicial authorities. Section 33 of the Electoral Act, 2010 succinctly provides that
“A political party shall not be allowed to change or substitute its candidate whose name had been submitted pursuant to section 31 of this Act, except in the case of death or withdrawal by the candidate”.

Section 31 (1) of the Act provides that:
“Every political party shall not later than 60 days before the date appointed for a general election under the provisions of this Act, summit to the commission, in the prescribed forms, the list of the candidates the party proposes to sponsor at the elections…”

This position of the law was well elucidated in the case of Labour Party v. INEC (2008) 13 NWLR, (Pt.1103) Pages 18-19 at Ratio 2 where the Court of Appeal per Okoro JCA (as he then was), held inter alia that:

“Where a general election has been held and there is a false start, for example, a candidate who ought to have been part of the election was unlawfully excluded or there was no level playing ground for all the candidates and that election is subsequently either cancelled by the regulating authority like INEC or nullified by an order of a court or tribunal and a re-run or re-start is ordered. It is my humble view that the re-run or re-start refers to that general election cancelled or nullified... The consequence of this is that all the candidates including the one unlawfully excluded would now get back to the starting line for a fair and free contest. It does not admit of any other candidate since as it were, the period for nomination and screening of candidates would have elapse. It is just restoring the parties to the status quo ante belum. See also Honourable Mohammed Salisu A. Alwa’u & Anor v. Abbas M. Yakubu & 2 Ors. CA/K/EP/SHA30/20C (unreported) delivered on 6th November, 2003.

At page 10 paragraphs G-H the Court of Appeal further held that
“For a nullified general election, only the persons who were candidates in the said election can have a rerun…”
In the concurrent judgment, Augie JCA (as he then was) at page 109 para C held that

“The applicant may have a right to nominate and sponsor candidates but it cannot exercise that right when an election is nullified and a fresh election is ordered because the date and period for calling for nomination has elapsed”.

The Labour Party not satisfied with the judgment of the Court of Appeal in the above case, appealed to the Supreme Court as reported in Labour Party v. INEC (2009) 37 SCQR 73 at page 97. The Supreme Court in dismissing the appeal, held inter alia-

“I also so hold. The said nullification of the election was because of the “unlawful exclusion” of the Action Congress and its candidate by INEC. Since the said election, was void. Commonsensically and in fact and in law, it is the same candidates that will ran in the aborted/nullified election that must go back to run in the fresh election as ordered by the trial tribunal which was affirmed by the Court of Appeal”

Senator Akpabio has the unfettered right to withdraw from the rerun election, but his political party does not have such right to arbitrarily make substitutions, at least not within confines of the law as cited above. The ordinary legal consequence of Senator Akpabio’s withdrawal from the rerun vis-à-vis the provision of the law is that the APC cannot and will not field a candidate at the rerun election.

While appreciating the Independent National Electoral Commission for following the path of the law and their unwavering resolve to conduct a free, fair, and credible rerun elections as ordered by the court, we also urge the commission to discountenance the desperate demand by the APC for the removal of Mike Igini as Resident Electoral Commissioner (REC). This ill-motivated call is obviously geared at having a REC that will allow them the liberty to perpetrate electoral malfeasance in Essien Udim during the rerun election.

Good for them to avoid embarrassment at the poll