Recently, the governor of Ebonyi State, Mr. Dave Umahi, was sacked by the Federal High Court for defecting from the People’s Democratic Party (PDP) to the All Progressives Congress (APC). This judgment has led to a lot of arguments as to whether or not the Supreme Court in the cases of CPC v OMBUGADU, OZOMGBACHI v. DENNIS AMADI and others held that votes belong to candidates, not parties. After a careful observation of the cases, it becomes obvious that no where did the court mention or infer that votes belong to candidates and not parties during an election. Below are the case analyses of Amaechi v. INEC, CPC v OMBUGADU and OZOMGBACHI v. DENNIS AMADI & Ors. In Amaechi v. INEC & Ors, first, let us have it in mind that the Supreme Court made quite a lot of decisions. The issue of votes belonging to a party was brought to the fore by the Supreme Court’s decision. The court ruled that votes belong to parties. After the decision in the Amaechi case, the Electoral Act was amended and section 141 was introduced. Section 141 of the Electoral Act 2010 (as amended) provides in unmistaken terms: “An election tribunal or court shall not under any circumstance declare any person winner of an election in which such a person has not fully participated in all the stages of the said election.” By the above provision, the National Assembly has set aside the decision of this court in Amaechi v. INEC (2008) only to the extent that individuals who do not participate in the whole stages of election cannot be declared as winner by a court or tribunal, like in Amaechi’s case.
This means that the decision is on two levels. 1. That individuals who didn›t take part in the whole stages of election can be declared winner of an election. 2. The above is so because votes belong to parties. The Amaechi judgment stating that parties win elections was decided on the strength of the constitution which is superior to the Electoral Act, and the amendment of the Electoral Act cannot change the constitution. Section 141 only cured the first leg and not the second leg, which is that individuals who didn›t take part in the whole stages of an election cannot be declared winner of the election. The Amaechi verdict was reached on the strength of the community reading of a lot of provisions such as section 221 of the 1999 Constitution provides: «No association other than a political party shall canvass for votes for any candidate at any election or contribute to the funds of any party or to the election expenses of any candidate at an election.” I quote the lead judgment in Amaechi›s case: «The above provision (section 221 of 1999 Constitution) effectually removes the possibility of independent candidacy in our elections; and places emphasis and responsibility in elections on political parties. Without a political party, a candidate cannot contest. The primary method of contest for elective offices is therefore between parties. If as provided in Section 221 above, it is only a party that canvasses for votes, it follows that it is a party that wins an election. A good or bad candidate may enhance or diminish the prospect of his party in winning but at the end of the day, it is the party that wins or loses an election. I think that the failure of respondents› counsel to appreciate the overriding importance of the political party rather than the candidate that has made them lose sight of the fact that whereas candidates may change in an election but the parties do not. In mundane or colloquial terms, we say that a candidate has won an election in a particular constituency but in reality and in consonance with section 221 of the constitution, it is his party that has won the election.”
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The judgment further went on to say that in the eyes of the law, it was Ameachi’s name that was sent to INEC and not Omehia›s. Section 141 of the Electoral Act only cured the eyes of the law to ensure that it doesn›t see a person who has not fully participated in all the stages of election as the winner of that election. Section 141 does nothing more. The fact that votes belong to parties was reached on the strength of section 221 of the Constitution. The Electoral Act cannot amend the Constitution. This means that the Supreme Court›s decision in Ameachi v. INEC that votes belong to political parties was never eroded by the amendment of the Electoral Act. CPC v OMBUGADU was a pre-election matter of whether the appellant was duly nominated and sponsored as a candidate. The decision that is currently being bandied about, namely that the Supreme Court held that votes belong to candidates was wrongly quoted.
In other words, parties do not contest, win or lose election directly; they do so by the candidates they sponsor and before a person can be returned as elected by a tribunal or court, that person must have fully participated in all the stages of the election, starting from nomination to the actual voting. Having read the full quotation of the Supreme Court on this issue, how does the above translate to mean that votes now belong to candidates? Needless to say, the decision of Justice Mary Peter-Odilli in OZOMGBACHI v. DENNIS AMADI & Ors is not law; it does not constitute the judgment of the Supreme Court. The issue of who owns the votes cast during an election between the party or candidates did not even come up in the matter at all. If it came up, the court would surely have interpreted sections 221, 179 and 68 of the constitution which the court never did. The above decision of the court was made in light of Section 141 of the Electoral Act, namely which of the two primaries conducted by the CPC should stand and which of the two candidates who won the different primaries should be the true candidate of the CPC, not the issue of who owns the vote between candidates and parties. It becomes clear that the court did not hold in OZOMGBACHI v. DENNIS AMADI & Ors that the votes in an election belong to the candidates. The constitution did not envisage a situation where a candidate wins election under a political party and then defects to another party, thereby giving the votes secured under that party to another party.
Victor writes in via adeopatola@gmail.com
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