A lawyer and current affairs analyst, Mr. Liborous Oshoma, has said that the Independent National Electoral Commission does not require any further court order before removing from its list of candidates the names of persons who contested party primaries although their names were not in the membership registers submitted to it.
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He spoke on the programme Newsday, following the judgment delivered last Thursday by a seven-member panel of the Supreme Court led by Honourable Justice Adamu Jauro, in the commission’s appeal against the decision of the Court of Appeal, in which the apex court held that the disputed provisions of the Electoral Act 2026 are not inconsistent with the 1999 Constitution and restored the judgment of the Federal High Court.
Asked what exactly the court decided, and why it has generated so much argument within the parties, he began by separating the provision from the circumstances.
“What the Supreme Court decided is not new,” he said. “What is new is the fact that, while the case was pending before the Court of Appeal, and after its judgment, most of these politicians lost in their former political parties.”
He explained the purpose of the provision. “Bear in mind that that section was aimed at addressing the idea of jumping from party A to party B, and the attitude of politicians who see political parties as merely a platform for achieving their ambitions.”
“The fact that someone can be in party A today, contest the primaries, and the moment he loses, move to party B to become that party’s candidate, and perhaps go on to win that election, and then return again to party A or party C. So that section was aimed at addressing or preventing all of that.”
He said the consequence of the Court of Appeal’s decision was immediate and visible.
“So when the Court of Appeal delivered its judgment, we saw a lot of those movements. Some people from the APC and the ADC and some of the major political parties, who lost in the primaries of those parties, all found their way into other parties. As I said, they jumped ship.”
“We also saw a situation where some people were in the PDP today, and the very next day they were in the APC and had obtained the APC ticket.”
“So that is the noise being made about the Supreme Court judgment. Because when the Court of Appeal delivered its judgment, it appeared as though that innovative and beautiful provision, which gives the commission the right to demand the register at least 21 days before congresses, meetings and primaries, had come to an end.”
He noted that the commission had said it would meet to review the judgment and might seek the opinion of its legal department.
He offered an illustration which he said would make the position plain to the ordinary person.
“It is like two people disputing over a piece of land. While the dispute was pending over an acre of land, judgment was given in favour of a particular person. And instead of preserving the status quo, that person went ahead and began selling the land to third parties.”
“And in the end the Supreme Court held that the man who was selling the land is not the true owner, and that the land belongs to the other party. Let us say A and B, and the land now belongs to B.”
“So the question is: what happened to the people who earlier bought the land from A?”
Asked what the judgment means for candidates whose parties conducted primaries while the provisions were in litigation, he rejected the framing of the question.
“This is the aspect I will address, which is all this argument that the judgment cannot operate retrospectively. This is not a case of that kind,” he said.
“What happened is that the case was before the court, and the parties were aware of their rights. Bear in mind that this is an appeal filed by the commission.”
“Therefore, those parties that did not wait for the final determination of the case, and went ahead to conduct primaries with registers containing members who are not listed in their registers, certainly, the commission does not need another order to delete their names from the list of contestants in the election, because the Supreme Court has affirmed that the commission has the power.”
He put the question to the candidates themselves.
“So if your name was not in the register from the beginning, or in the register that was submitted to the commission, on what basis, and in what capacity, do you now call yourself a member of a political party that conducted an election monitored by the commission? On what basis were you declared winner?”
“So the Independent National Electoral Commission does not need another court order. Or that the law is being applied retrospectively. No. This judgment is a definitive judgment and enforceable against everyone.”
“So it is not a retrospective application of the law. The law itself, as we speak now, is that the powers of the commission which were clearly granted to it have been affirmed. So anyone who violated those powers, or decided not to submit the register to the commission, or whose name was not in it, is responsible for himself.”
Asked about politicians who defect from one party to another shortly before seeking the new party’s ticket, and about the grey areas some see in the Act read as a whole, he addressed two arguments.
“The second argument is that some think the question of consensus is not covered by this judgment. Then there are others who said that because there was a subsisting Court of Appeal judgment, and they acted on it before the Supreme Court decided one way or the other, the candidates whose names were already on that list, who contested although their names were not in the register submitted to the commission, are not affected by the judgment.”
“With all due respect to those persons and to the lawyers who canvassed that position, I disagree with them entirely.”
“Because the commission also stated that the first step, whether it is consensus or direct primaries, is that your name must in the first place be in the register as a contestant before you can talk about consensus.”
He added an argument on the nature of consensus itself. “And for the record, some say it is about voting. When they say consensus, the parties and the contestants have also voted through their choice, because the section provides that they must agree. The contestants must agree to step down for the consensus candidate. So they too voted.”
“So your name must be in that register. There is no exception in section 77.”
On those who left their parties after the register had been submitted to the commission, he was equally firm.
“With all due respect, the absence of their names in the register submitted to the commission also means one thing. It simply means that they were not members of that political party at the time they contested those elections.”
“You cannot come through the back door and claim that, guys, at that time the Court of Appeal judgment was still subsisting. But in this case, it is the commission that appealed. And I am also aware that there was an application for a stay of execution pending appeal.”
“So when you turn a blind eye to all that, and decide to enter through the back door, and want to plead, oh, you cannot apply the judgment retrospectively…”
He then set out his objection to the retrospectivity argument in principle.
“This is not a matter of a law being passed and then given an earlier date. It is a matter of a law that had already been passed, and then the judgment came as an interpretation of the content of that section of the law. So it is not a matter of retrospective application. There is a judicial decision that has made a pronouncement on it.”
“And what the commission needs now is to take its time, look at the register previously issued, and review it. Now, on the basis of the Supreme Court judgment, which affirmed the commission’s powers as granted to it by sections 77 and 84.”
He closed with a question of his own. “So imagine now a party that did not conduct direct primaries and decided to conduct indirect primaries. Are we going to say that the commission must accept its list of candidates merely because the Court of Appeal once said so? The answer is no.”
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