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INEC bows to PDP threat, postpones bye-election in Borno
From Mohammed Abubakar, Abuja
CONTRARY to the claims by the Independent National Electoral Commission (INEC) that it postponed the by-election in Borno North Senatorial District, it was learnt that at the weekend that the commission was forced to review its position following a threat by the Peoples Democratic Party (PDP).
In a statement last on Thursday, the Director of Public Affairs, of INEC Mr. Steve Osemeke, cited two suits filed by Senator Mohammed Sanusi Daggash as the senator representing the area whose election was quashed by the Court of Appeal, Jos in November 2003 at the Abuja High Court.
They include a legal action at the Federal High Court seeking an order that INEC was not entitled to conduct the election in Borno North Senatorial District since there is a validly elected senator (himself) as well as an injunction restraining INEC from conducting the election.
While this suit was pending, Daggash applied to the Federal High Court to direct him to continue to sit as a senator pending the determination of the suit. This order, which was not directed at INEC, was granted on November 1, 2004.
Though the Commission has indicated its interest to lodge an appeal against the ruling of the Federal High Court at the Court of Appeal, it decided to err on the side of caution. It said that it would staying further action on the conduct of a fresh election fixed for December 4, 2004 into Borno North Senatorial District seat pending the determination of its appeal against the order of injunction by the Abuja Federal High Court.
However, sources at the Commission said told The Guardian that a letter INEC received from the PDP might have worried it. The party it was learnt frowned at the attempt by the Commission to conduct fresh polls for the seat occupied by the erstwhile chairman of the Senate Committee on Information.
The two-page letter dated November 24, and signed by the National Chairman of the PDP, Chief Audu Ogbeh had drawn the attention of the INEC Chairman, Dr. Abel Guobadia to the judgement delivered on the November 6, 2003. The ruling allowed two appeals of Daggash and held that the All Nigerian Peoples Party (ANPP) candidate was disqualified from contesting election into the Senate pursuant to S.66 (i) (h) 2 of the 1999 Constitution.
Daggash had appealed against the consequential order of the Appeal Court that there be no fresh election and that an appeal to the Supreme Court is still pending before. The reason of his appeal to the Supreme Court is that a "consequential order must necessarily be congruent and given effect to the substantive order, which in this case was not."
The PDP chief refered to a letter written to Guobadia in December 2003, by the Chief Justice of Nigeria, Justice Muhammadu Lawal Uwais. In the letter Uwais was believed to have advised Guobadia against proceeding with the by-election which was then scheduled for December 20, 2003 or any other in the future pending the outcome of both the notice and the appeal filed in the Supreme Court.
"This suit FHC/ABJ.CS/262004 pending before the Federal High Court, Abuja wherein Senator Mohammed Sanusi Daggash is seeking a declaration that the consequential order made was without jurisdiction, the Court having struck out the original petition filed to challenge his victory at the election. The Federal High Court upon the application of Senator Daggash granted an Order of injunction restraining INEC from holding any fresh election until the determination and final hearing of the suit before it.
"As at now, there is also an offshoot case FHC/ABJ/CS/26/2004, wherein the parties have referred two questions of law to the Supreme Court for its opinion, which if determined and delivered would finally resolve the matter before the Federal High Court. The Supreme Court is yet to determine the said suit and it is my candid opinion that we do not put the cart before the horse as there is no need to be in a hurry on matters resting squarely on law."
Ogbeh brought in an aspect of the Electoral Law that deals with the qualification of candidates to contest elections into the Senate. He quoted particularly S21 (7) (b), which provides that: "any political party, which knowingly or recklessly presents to the Commission the name of a candidate who does not meet the qualifications stipulated in this section, shall be disqualified from participating in that particular for that office in the same constituency. The ANPP has fallen into that trap. Ordinarily, there is no reason the ANPP should be allowed to participate in a fresh election (if there is to be any) having regard to the provision of this section."
According to him, it was that aspect of the electoral law that the PDP is seeking to be determined in the suit FHC/ABJ/CS/593/2003, noting that the trial of that suit has since commenced and was at the last hearing date adjourned to January 25, 2005. The interesting thing here is that your INEC is a party in each of the four suits pending before various courts and at no point in time did INEC question the competence of the Federal High Court in hearing the suits.
Said Ogbeh: "Depending on how the cases go, there might be no need at the end for any fresh election, hence there is absolute need to exercise restrain from holding any fresh election prior to the determination of the matters pending in courts.
Admitting that the Electoral Act 2002, made pursuant to the 1999 Constitution made the Court of Appeal the final court with regard to the Federal legislative election, he, however, made it clear that this does and affect the issue of jurisdiction. He rather insisted that the issue of jurisdiction could be entertained at the highest court of the country, no matter from what level of court the matter originates.
"In view of the above, I will urge you to ensure or caused to be ensured that the fresh election, which I understand is slated for December 4, 2004 is not contemplated prior to the final determination of the pending suits," he concluded.
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