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Akpabio’s withdrawal from senatorial rerun: APC’s move to present another candidate and the position of the law

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By Sylvanus Okpe

The debate whether or not Senator Godswill Akpabio should resign from his position as the Federal Minister of Niger Delta Affairs to contest for the rerun in Akwa Ibom North-West seems to have been watered by his decision to voluntarily convey to the National Chairman of the All Progressives Congress (APC), Adams Oshiomhole, in a letter dated December 2nd, wherein the ex-Senate Minority Leader communicated in unambiguous terms, his disinterest to continue with the rerun and preference to remain as a Minister.

In as much as the aforementioned letter had brought the debate surrounding the eligibility of the Minister to take part in the rerun to an end, the letter in the 8th paragraph, created a legal logjam bigger than the one it had unconsciously resolved.

The minister in paragraph 8 of the letter which for purposes of clarity, would be reproduced hereunder, verbatim, urged the national leadership of the APC to notify INEC of his intentions to withdraw from the contest and subsequently present a fresh candidate from within the party to take part in the rerun. The paragraph reads; “It will be appropriate in the circumstance and pursuant to Sections 33 and 35 of the Electoral Act, 2010 (as amended) for the party to immediately communicate this withdrawal to the Independent National Electoral Commission and forward to her the name of another candidate of the party to replace me at the Court ordered Rerun Election for the Akwa Ibom North-West Senatorial District”.

The issue begging for determination now is whether the APC can legally present another candidate other than Mr Akpabio to participate in the rerun.

In espousing the opinion that the ruling party can legally present another candidate to participate in the rerun, some pro-APC analysts have erroneously based their arguments on the supreme court decision in Rotimi Amaechi vs Celestine Omehia, wherein the court declared that it is the political party and not an individual that is being voted for since it is the party’s logo and not the individual’s name that is on the ballot paper. The above decision can not rightly serve as a basis for any meaningful contribution on the subject matter as it has been overruled by section 141 of the electoral act 2010 as amended which provided that, “An election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election”.

The supreme court has also overruled itself in subsequent decisions particularly in their most recent judgement – the case of Moddibo v Mustapha, where the Apex Court nullified the election of the former, the APC candidate in the Yola South, Yola North, and Girei Federal Constituency of Adamawa State election over certificate forgery – reluctantly upholding the decision of the High Court which had ceded his position to another APC candidate in the primary election, Mustapha Usman on the strength of section 141 of the electoral act 2010 as amended, nominating to rather declare the candidate of the PDP, Jafar Suleiman who came second in the general election as the rightful winner of the polls.

Despite the foregoing, it is our firm view that the APC can rightfully field another candidate to take part in the rerun in one out of the eight local councils in the Akwa Ibom North-West (Ikot-Ekpene) senatorial district upon fulfilling some conditions set out in the electoral act which must be adhered to in other for the APC to present such candidate in a manner envisaged by our extant laws. The party must strenuously ensure total adherence to sections 141 and 33, 35 of the electoral (amendment) act 2010. Which provides; 33. A political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to section 31 of this Act, except in the case of death or withdrawal by the candidate”, However, Section 35 allows a candidate to withdraw upon notice to his party.

The party on its part is required to forward the notice of withdrawal to INEC not later than
45 days to the election. 141. An election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election.

The APC seems to have secured automatic compliance to section 33 and part of section 35 of the electoral act above by the voluntary withdrawal of Akpabio from the race albeit that the ruling party must ensure that it communicates the name of the fresh candidate to the Independent National Electoral Commission (INEC) within the stipulated time. The most challenging condition, however, which will vitiate the entire process is presented by section 141 of the electoral act and reproduced above, which compels the party to ensure that the new candidate is participating in all the stages of the election with specific reference to the primary and the general elections.

The law is trite that a candidate who particulates in a rerun election and the party primary will be deemed to have taken part in all the stages of the election as rerun elections are corollary of the general election and cannot be separated since only two stages of election are known to our laws, the primary and general stages of the election. The above position has been ratified by the decision of Supreme Court in the case of Yahaya Bello vs James Faleke where the later who was the running mate of late Prince Abubakar Audu in the 2015 Kogi governorship elections wherein Prince Audu, who was the candidate of the APC died while the results of the elections were being collated and INEC declared the election inconclusive paving way for the APC to field Yahaya Bello in the subsequent elections.

Faleke being dissatisfied with the declaration of Bello as the governor of Kogi state approached the court, praying to be declared the winner of the election, a prayer the court declined on the basis of his inability to fulfil the condition provided by section 141 of the electoral act 2010 as amended since for failing to participate in the primary election of the APC. The party subsequently upheld the election of Bello who came second to Audu in the party primaries and went on to participate in the general elections though the election seemed to have been won and lost before his entry into the contest.

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