IS THE AGF CORRECT THAT THE COURT OF APPEAL ORDERED INCLUSION OF APC ZAMFARA CANDIDATES IN GENERAL ELECTIONS?

On February, 13, 2019, the Attorney-General of the Federation was reported to have written to the Independent National Electoral Commission, INEC directing the body to postpone the upcoming general elections (save that of the President) in Zamfara State, so as to accommodate candidates of the ruling All Progressive Congress, APC. His ‘directive’ was purportedly based on a so-called order of a three-man panel of the Court of Appeal, sitting in Sokoto.

Howver, contrary to reports on several news media platforms and the assertion of the Attorney-General, the Court of Appeal sitting in Sokoto did not make any order to any body including the Independent National Electoral Commission, INEC of any kind – including the inclusion of candidates of the All Progressive Congress in the upcoming Gubernatorial elections.

However, there is, admittedly, ground for any person without the full information to misapprehend the nature of the ruling of the Court of Appeal. as there are two subsisting but conflicting High Court judgments on the same matter. The first order, by a Zamfara State High Court, directed INEC to accept the candidates of the APC as furnished by the Party. Following on its heels, however, was another judgment by an Abuja High Court directing INEC not to recognize any candidate of the APC for the forthcoming general elections due to the party’s failure to comply with INEC’s regulation regarding the submission of names of its candidates. The two High Courts are of equal and co-ordinate jurisdiction and so after an internal review and in the absence of any appellate court order resolving the inconsistency, INEC chose to follow the second judgment which accorded with its regulation.

The first judgment was appealed by Aminu Jaji, a Gubernatorial candidate of the APC in Zamfara State who is a sitting member of the House of Representatives. it was that appeal that was dismissed (following Mr. Aminu’s application to withdraw the suit)  through a judgment delivered by one of its appellate court’s three-man panelists, Justice Jummai Sankey. Worse, by opting for dismissal, the Court of Appeal frustrated an opportunity for it to consider a motion filed by APC in the appeal, seeking the enforcement of the High Court judgement: a consideration that perhaps could have led to an order in respect to the motion favourable to the APC.

The effect of the dismissal of that appeal is that the Zamfara State High Court judgment ordering INEC to recognise APC candidate remains in effect. However, it is not the only judgment. The second but conflicting judgment of the Abuja High Court remains in effect too having not been set aside by any appellate court. More importantly, INEC as an independent body had based its decision not to recognise APC candidates in Zamfara State on that second judgment. The Court of Appeal’s decision which effect is to leave the first judgment untouched and active has no effect on the second judgment upon which INEC’s determination is based – except it is set aside by a direct order of the Court of Appeal.

A certified copy of the dismissal of the appeal against the Zamfara State High Court order reads:

“It is ordered as follows:

“That the appellant, having met all the conditions for the withdrawal of the appeal as set out under order 11, rule 1. This appeal under No CA/S/23/2019 is hereby dismissed pursuant to order 11, rule 5 of the court of appeal rules 2016”.

The reported ‘directive’ by the Office of the Attorney-General to INEC to postpone the elections so as to accommodate the APC contingent, so long as it is purportedly based on the judgment of the Court of Appeal, Sokoto State is therefore misguided. INEC being an independent body not beholden to the Office of the Attorney-General (except in so far as its advice is found correct after an independent review) is not obligated to act upon the AG’s ‘directive’. Only an order of an Appellate Court setting aside the judgment upon which INEC’s determination were based can make a difference.

The office of the Attorney-General is not a partisan office. It is an abuse of office for the Attorney-Geenral to use his office to seek to advance an unsupportable view of the law so long as it favours his political party. For an administration committed to anti-corruption and rule of law, the AGs directive is unfortunate and condemnable.

[Sam Eleanya, a legal and policy strategist is the publisher of lawnigeria.com and 3PLR (Policy, Practice & Publishing Law Reports. He is the Principal Strategist of Tree & Trees JusticeMedia Group)