The Peoples Democratic Party v Mai Mala Buni: Implications for the Polity
By Chief Ferdinand Orbih, SAN
Introduction
On the 30th of September, 2022, the Federal High Court sitting at Abuja in the case of Peoples Democratic Party (PDP) v Buni, voided the candidature of His Excellency, Governor Isiaka Adegboyega Oyetola and his Deputy, both of the All Progressives Congress (APC) in respect of the Osun State Governorship election which held on the 16th of July, 2022.
In order to put the judgement in proper perspective, it is important to point out from the onset that the suit pre-dated the recent Governorship election held in Osun State and is therefore, a pre-election matter as far as the election in question is concerned. It is also important to point out that, the suit predated the election petition that arose from the actual conduct of the Osun State Governorship election itself. That election petition arising from the actual conduct of the Governorship election in Osun State on 16th July, 2022, is still pending before the Osun State Governorship Election Petition Tribunal.
We shall refrain from commenting on the impact this judgement is likely to have on the ongoing Election Petition, because it will be inappropriate to do so since the Petition is still pending before the Tribunal. Suffice it to say for now that, like two intersecting circles, it is inevitable that the extant judgement under review is bound at some point, to intersect with the Election Petition, and produce some legal consequences which we would rather not delve into currently because of the reasons adduced hereinbefore.
The Facts of the Case
In PDP v Buni, the PDP contended that the process leading to the sponsorship of Governor Oyetola and his Deputy by the APC was unconstitutional, and therefore, fundamentally defective, in that INEC FORM EC9B together with the letter by which APC, their Political Party, forwarded their names to the Independent National Electoral Commission (INEC) were null void and of no effect. The PDP predicated its case on the ground that His Excellency, Governor Mai Mala Buni, a serving Governor of Yobe State, cannot sign FORM EC9B and the sponsorship letter of Governor Oyetola and his Deputy, as the Acting Chairman of the APC. In other words, it was the contention of the PDP that Governor Mai Mala Buni who is a serving Governor of Yobe State, cannot simultaneously operate in the capacity of a Chief Executive of APC, having regard to the Provisions of Sections 1 (1), 177 (c) and 183 of the Constitution of the Federal Republic of Nigeria. It was further contended that Governor Oyetola and his Deputy were not lawful candidates, and were not validly sponsored by the APC because of the above stated anomalies.
The Decision Of the Court
Basically, the Court declared null and void the process leading to the Sponsorship of Governor Oyetola and his Deputy as fundamentally defective, and as a result, INEC FORM EC9B containing their names together with the letter of sponsorship which APC purportedly sponsored or communicated its sponsorship of their candidature to INEC were null and void. The Court further declared that Governor Mai Mala Buni who is a serving Governor of Yobe State cannot simultaneously operate in the capacity of Chief Executive of APC. Having declared the process leading to the purported sponsorship of Governor Oyetola and his Deputy as being incurably defective, the Court came to the inevitable conclusion Governor Oyetola and his Deputy were not lawful candidates at the election slated for the 16th of July, 2022.
APC’s Narrow Escape in Jegede v INEC
In the earlier case of Jegede v INEC (2021) LPELR-55481(SC), APC had a narrow escape when the Supreme Court in a split decision of (four Justices in favour to three justices against) dismissed the Election Petition filed by Eyitayo Jegede, SAN, the PDP candidate, on two technical grounds. Firstly the Supreme Court held that the issue of Governor Mai Mala Buni acting as National Chairman of the APC cannot be raised in an Election Petition. Consequently, the Election Petition Tribunal lacked the requisite jurisdiction to entertain it. Secondly the Supreme further held that, since Governor Buni was not joined as a party to the Petition, the issue whether he violated the Nigerian Constitution by acting as the Chairman of APC while being the sitting governor of Yobe State cannot be decided in his absence. The Supreme Court rationalised the issue in the following words:
So, the contention that Governor Mai Mala Buni as Governor of Yobe State has violated Section 183 of the Constitution by holding the office of acting National Chairman of the 2nd Respondent is a very serious one with grave consequences for him, and no doubt, for the 2nd respondent as well. The judicial determination of that issue here would involve the enforcement of the Constitution against him, and would certainly affect him personally as I have shown above. It would be unfair to him to try that issue in his absence, without joining him as a party to the petition. The fair trial of such issue in his absence without joining him as a party, is impossible. There is no need to stress the point that he is a necessary party to the case, because the issue upon which the Appellants have predicated their case, namely, the invalidity of Mai Mala Buni’s signature in Exhibit P21 and the invalidity of the said exhibit itself cannot be fairly, effectually and conclusively determined without joining him as a party to the case.
JEGEDE v INEC: An Unheeded Warning Signal from the Supreme Court
To any discerning legal mind, Jegede v INEC was a very subtle alarm sounded by the Supreme Court, because it was clear from the Court’s judgement that the issue of whether a sitting Governor can simultaneously perform the role of a Chief Executive of a political party was not decided by the Court on the merit. Instead, the Court skirted around its boundaries and rested its judgement on two technical pillars. If the alarm sounded by the majority decision was subtle, the one sounded by the minority decision was so loud that even the deaf could hear it. The minority tackled the issue head on. Salauwa JSC put it bluntly, when he stated as follows:
“What’s more, by the combined effect of the provisions of Section 183 of the 1999 Constitution (Supra) and Article 17(iv) of the 2nd Respondent (Exhibit P. 22), it is rather uncontroversial that the law was all out to fight the hydra-headed monster known as corruption, by banning serving Governors from messing up themselves by holding other executive offices or engaging in paid employment”.
As if that was not enough the learned Justice of the Supreme further stated as follows:
“Equally, recall Nero Claudius Caesar (properly pronounced Kaiser 36-68AD) isacclaimed to be one of Rome’s most infamous emperors. He ruled from 54 AD until his death by suicide 14 years later. He is notorious for his debaucheries, political murders, persecution of Christians and a passion for music, thereby probably leading to the apocryphal rumour that “Nero fiddled while Rome burned during the great fire of 64 AD”. Hence, in my considered opinion, the Governor’s attitudinal disposition in running the affairs of the 2nd Respondent in Abuja at the expense of his primary duties of governing Yobe State (notoriously known to be a foremost epicentre of the ravaging Boko Haram insurgency, banditry et al), could aptly be likened to the legendary: [A]pocryphal rumour that Nero fiddled while Rome burned to ashes during the great fire of 64 AD. I rest my case. I say no more. A word is enough for the wise!!!”
Reaction of APC to Jegede’s Supreme Court Judgement and Consequences
The question which arises at this juncture is: did the APC heed the alarm and the warnings sounded by the Supreme Court in Jegede’s case? From the subsequent events that culminated in the recent judgement in the case of PDP v Buni, we cannot but answer this question in the negative.
An excursion to the history of political parties in Nigeria from the pre-independence era to post-independence and up to the current dispensation, will reveal that political parties in Nigeria behave like the Bourbon kings whose attitude was described by Talleyrand as having “learned nothing and forgotten nothing”. Political parties in the current dispensation (especially the PDP and APC), behave as if they are above the law.
Impunity reigns supreme in them, and their officials behave as if they are demigods. How else can one describe the attitude of APC who paid deaf ears to both subtle and loud warnings sounded by the Supreme Court in Jegede v INEC, about the undesirability of keeping Governor Buni as its National Chairman. The APC not only kept the sitting Governor as its National Chairman, but also permitted him to preside over Governorship party primaries in Osun State. Unless the APC succeeds in upturning the judgement on appeal, the implication would be that the APC had no Governorship candidate at the last Governorship election that took place in Osun State. We shall say no more on this for now.
Judicial Activism and Legislative Intervention in the Affairs of Political Parties
The courts of this country have since the Supreme Court decision in ONUOHA v OKAFOR, and so many other decisions decided upon its principles, always been wary of getting to make decisions for political parties. In fact, the courts have remained restrained in deciding matters that are within the exclusive domain of political parties, such as choice of candidates to contest political offices.
In the face of persistent abuse of this legal principle by political parties with the resultant oppression of its members, judicial activism coupled with legislative interventions have since watered down the principle of nonintervention of courts in the internal affairs of political parties to a considerable extent. The first significant intervention came in 2010 when the Legislature famously injected a Section into the Electoral Act to the effect that, a political party desirous of changing or substituting its candidate at an election must give a cogent and verifiable reason for doing so. But for the innovation brought about by that intervention, the PDP would have got away with the substitution of Omehia with Amaechi as its candidate for the 2010 Gubernatorial election in Rivers State, and there would never had been an Amaechi governorship.
Despite the aforesaid provisions in the 2010 Electoral Act, political parties persisted in arbitrarily changing and substituting candidates at election. This has led to a new provision in the Electoral Act that a political will not be permitted to substitute or change its candidate, unless the person originally nominated dies or withdraws in writing from the race. This new provision is now hanging like the proverbial sword of Damocles over the heads of some prominent Senators, who the APC tried to use to substitute those who emerged the party’s candidates for next year’s Senatorial elections. This was after those Senators had contested, and lost the Presidential Primaries of the APC.
The Way Out for Political Parties
Political parties must take to heart the admonitions of Gumel,JCA that:
“Where the appropriate jurisdictions of the courts have been invoked, the courts will not shy away from deciding that political parties must avoid arbitrariness, impunity and illegality, and must obey their Constitutions. See UZODINMA v IZUNASO (No.2) (2011) 17 NWLR (Pt.1275) 30. This exhortation of the Supreme Court in UZODINMA v IZUNASO (supra) remains eternally relevant, because there is a golden thread in the fabric that represents the Constitution of a political party in a democracy anchored on the well understood principles of rule of law. This fabric wraps around it to give it shape, life, warmth, succour and security etc., and even in the worst of darkness, this thread shines like a million stars”.
Political parties must imbibe the principles of internal democracy in the way and manner they run their political parties, and adhere strictly with the provisions of the Nigerian Constitution, their party’s Constitution, the Electoral Act, INEC Guidelines and indeed, their own Guidelines.
Conclusion
History never repeats itself; but, as the saying goes, those who refuse to learn lessons taught by history are condemned to repeat it. The APC, PDP and indeed, virtually all Nigerian political parties are classic examples of this cliché.
The courts declared for good reasons, that the APC had no candidates for the 2019 Governorship election in Zamfara State. Similarly, the courts also declared (also for good reasons) that the APC had no candidates for all the seats in the State House of Assembly, House of Representatives, Senate as well as the Governorship election in Rivers State at the 2019 general election.
The courts must continue to tell Politicians who manage the country’s political parties, in a very loud and clear voice (as was done in PDP v BUNU) that they are not above the law, and that there are consequences for bad behaviour.
Chief Ferdinand Oshioke Orbih, SAN, FCArb, KSG
Note: This article was originally published by ThisDay on 11/10/2022
