By: Emmanuel Menseh Madaki, Esq.(LLM)
As a fallout of the 2023 election petition tribunal which began after the conduct of the 2023 general elections. Some aggrieved political parties filed petitions and in deciding those matters, the court of appeal found in the case of Dist. Sen. Simon D. Mwadkwon, PhD (Senator representing Plateau North) and Hon. Musa Agah Avia (Member, Representing the good people of Bassa/Jos North Federal Constituency) that parties should go for a rerun having nullified the election on the sole ground that the candidates of the Peoples Democratic Party (PDP) were not qualified to contest the election due to alleged defects in the party structure.
It is quite germane to appreciate the fact that, the court of Appeal was not oblivious of the so-called alleged defect that other political parties were peddling. However, in deciding the case of Distinguished Senator Dr. Simon Mwadkwon and Hon. Musa Agah Avia this is what the court of Appeal said
“…The Independent National Electoral Commission (INEC) is hereby ordered to conduct a fresh election into the said Plateau North senatorial District not later than 90 days from today being the 22nd day of October, 2023. ALL POLITICAL PARTIES HEREIN SHALL PARTICIPATE IN THE RERUN/FRESH ELECTION”
The simple signification of the above order of the court of Appeal which is the final court in national and state assembly elections is that nobody can thinker or temper with that decision and INEC is bound to comply with the order of the court of appeal that directed all parties to participate.
It is significant to understand that the rerun election to be conducted is not at the instance of INEC but it is at the instance of the court. It is called “Court-ordered rerun” the said rerun must be conducted as directed by the court.
INEC has no power to conduct the election according to its whims and caprices but must be conducted in accordance with the express instructions and or directives of the court.
If INEC decides to add or subtract anything that is not contemplated by the court of appeal, then that decision will vitiate the entire process.
It is very instructive for INEC to realize that, it cannot exclude any political party from participating in the rerun otherwise the entire election will become a nullity on the ground that, the court of appeal made an express order in its final judgment which makes it a special situation that INEC must respect and comply.
PDP does not need any order to compel INEC to include the logo of the party on the ballot because the order of the court of appeal is express and unambiguous which must be accorded its ordinary and literal meaning without much ado.
I must stress that INEC would be undoing itself if it dares attempt to exclude or even exclude the PDP from the ballot then any candidate who wins the election without the inclusion and participation of the PDP in the court-ordered rerun election will definitely lose his seat in court should PDP decide to approach the court for interpretation and enforcement of the court of appeal judgment in a separate cause of action.
The Labour Party and the PRP approached the court of appeal in an application to review the judgment of the court of appeal that ordered PDP to participate in the court-ordered rerun and the court declined jurisdiction and fined LP and PRP 10 million naira each.
The court of appeal in dismissing the application of the LP and PRP which sought for the exclusion and outright withdrawal of certificate of the PDP said at page 11 paragraph 5 of the ruling that:
“…that the judgment of the court represents the intention of the court”
The implication of the above paragraph is that the judgment of the court of appeal which ordered PDP to participate in the court ordered rerun represented the clear intention of the court which does not require any review.
PDP has no reason to be afraid of anything instead should be celebrating because of the three-edged weapons the judgment of the court of appeal presents thus:
PDP must participate in the court-ordered rerun because the participation of PDP is based on a court order.
INEC has no right to exclude PDP in the court-ordered rerun and should INEC exclude PDP in the rerun whoever that wins that election is bound to lose it if PDP candidate decides to challenge the decision of INEC in court.
Exclusion of PDP on the ballot will amount to contempt of court which the INEC chairman can go to prison.
It is instructive to note that, the application which PDP filed at the Federal High Court, Abuja division has no bearing or any implication on the participation of PDP in the forthcoming court-ordered rerun. It was just done out of the abundance of caution but has no implication on the participation of PDP.
The Federal High Court only declined jurisdiction on the matter which expressly means that the judgment of the court of appeal which ordered PDP to participate in the rerun is clear which does not require the judge to make any order different from what the court of appeal being a higher court has done.
Let no one deceive you, PDP must be on the ballot to participate in the court ordered rerun except if INEC will want to compromise and sit on appeal over the judgement of the court of Appeal, which INEC lacks the requisite power to do so.
INEC do not set Plateau North on fire, comply with the order of the court by allowing all parties participate in the court ordered rerun.