By J.M Agu Esq. (CIArb)
Since the news of the judgment of the Court of Appeal sitting in Calabar filtered our political space, ordering the Independent National Electoral Commission (INEC) to immediately withdraw the Certificate of Return issued to His Excellency, Senator Chris Ekpenyong of the People’s Democratic Party (PDP), and conduct a rerun election in Essien Udim Local Government Area of Akwa Ibom State within 90 days, there have been a lot of reactions against and/or for the judgment.
” Ini Emembong, the PDP spokesperson in Akwa Ibom state later issued a statement, saying the rerun would afford the party a chance to widen its victory margin against Mr Akpabio and the All Progressive Congress (APC).
Because I do not intend to comment on the judgement of the court of an appeal which I am not yet privy to the full judgement, I wish to commend the courage, dexterity, and industry which Their Lordships put in delivering the landmark judgement.
However, this judgment has opened up another opportunity to enrich both our constitutional democracy and election jurisprudence.
Interestingly, the Appellate Court in its wisdom ordered a rerun election in Essien Udim LGA, where Senator Akpabio hails from. The court ruled that the rerun should hold within 90 days of the judgment. The constitutional question now is:
Whether they require Senator Akpabio to resign his position as the minister of the Federal Republic of Nigeria before embarking on this rerun election;Or
Whether he is eligible to stand for the election even as a minister.
A cursory look at the relevant laws will address the issues. The two major laws governing our electoral processes namely the Constitution of the Federal Republic of Nigeria 1999 (as amended), ( “the Constitution) and the Electoral Act, 2010 (the Act) are germane.
A combined reading of Section 66(1)(f) of the Constitution and Section 87(1)(2)&(4)(c)(i)(ii) of the Act would reveal that the law never envisages a situation like this, and therefore, never expects Sen. Akpabio to resign his current appointment before going into the rerun election.
For the sake of clarity, the two provisions will be reproduced verbatim. Section 66(1)(f) provides thus:
“No person SHALL be qualified for election to the Senate or House of Representatives if-
(f) he is a person employed in the public service of the Federation or of any State and has not RESIGNED, withdrawn or retired from such employment THIRTY DAYS before the date of election.” (emphasis supplied).
“A political party seeking to nominate candidates for elections under this Act SHALL hold primaries for aspirants to all elective positions.
(c) in the case of nomination to the position of a candidate to Senate, House of Representatives and House of Assembly, a political party SHALL, where it intends to sponsor candidates:
(i) hold a special Congress in the Senatorial District
Therefore, having mentioned those who ought to have resign their appointment before contesting election under section 66(1)(f) of the Constitution, the constitution did not go further to say what happens in case of rerun election.
It is our firm position that the rerun election is merely a corollary of the original process of 23rd February, 2019 elections which Akpabio was eligible to contest.
The law is that the whole processes leading to the 23rd February elections are still valid except the completion of the election in Essien Udim Local Government Area.
In conclusion, it is our strong view that Senator God’will Akpabio is eligible to stand for the election without resigning his position as a minister before contesting the rerun election.
He has two options as it stands now. He can decide to contest the rerun election if he wins he has the option of going back to the Senate where he came from, or he can relinquish it for his juicy post as a Minister of the Federal Republic of Nigeria.
Therefore, we urge Senator Akpabio’s legal team to urgently approach the court for legal interpretation of the Constitution and the Electoral Act before the conduct of the rerun election as ordered by the Court of Appeal.
In this sense our electoral process will be richly enhanced.
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