By J M Agu, Esq., (CIArb)
Since the news of the judgment of the Court of Appeal sitting in Calabar filtered our political space, ordering the Independent National Electoral Commission (INEC) to immediately withdraw the Certificate of Return issued to His Excellency, Senator Chris Ekpenyong of the People’s Democratic Party (PDP), and conduct a rerun election in Essien Udim Local Government Area of Akwa Ibom State within 90 days, there have been a lot of reactions against and/or for the judgment. In fact, the People’s Democratic Party (PDP) in Akwa Ibom State has welcomed the judgment as a good development and urged the Honourable Minister of Niger Delta Affairs, Senator God’swill Akpabio (the immediate past Governor of the state) to resign his appointment and avail himself for the election because according to them, it is an opportunity to widen the gap of the margin of victory for the PDP in the 23rd February, 2019 elections. It said, “we welcome the judgment of the Court of Appeal which has proven that widespread irregularities occurred in Essien Udim Local Government Area and we are preparing for the election; we are expecting Senator Akpabio’s resignation (as Minister of Niger Delta Affairs) so that he can come for the election.” Ini Emembong, the PDP spokesperson in Akwa Ibom state later issued a statement, saying the rerun would afford the party a chance to widen its victory margin against Mr Akpabio and the All Progressive Congress (APC).
Inasmuch as I do not intend to comment on the judgement of the court of appeal which I am not yet privy to the full judgement, I wish to commend the courage, dexterity, and industry which their lordships put in delivering the landmark judgement. However, this judgment has opened up another opportunity to enrich both our constitutional democracy and election jurisprudence.
Interestingly, the Appellate Court in its wisdom ordered a rerun election in Essien Udim LGA, where Senator Akpabio hails from. The court ruled that the rerun should hold within 90 days of the judgment. The constitutional question now is:
Whether Senator Akpabio is required to resign his position as the minister of the Federal Republic of Nigeria before embarking on this rerun election; or
Whether he is eligible to stand for the election even as a minister.
A cursory look at the relevant laws will suffice to address the issues. The two major laws governing our electoral processes namely the Constitution of the Federal Republic of Nigeria 1999 (as amended), (hereafter the Constitution) and the Electoral Act, 2010 (as amended)(hereafer the Act) are germane. A combined reading of Section 66(1)(f) of the Constitution and Section 87(1)(2)&(4)(c)(i)(ii) of the Act would reveal that the law never envisages a situation like this, and therefore, never expects Sen. Akpabio to resign his current appointment before going into the rerun election.
For the sake of clarity, the two provisions will be reproduced verbatim. Section 66(1)(f) provides thus:
“No person SHALL be qualified for election to the Senate or House of Representatives if-
(f) he is a person employed in the public service of the Federation or of any State and has not RESIGNED, withdrawn or retired from such employment THIRTY DAYS before the date of election.” (emphasis supplied). Section 87(1)(2)(4)(c)(i)(ii) states as follows:
“A political party seeking to nominate candidates for elections under this Act SHALL hold primaries for aspirants to all elective positions. (2) The procedure for the nomination of candidates by political party for various elective positions SHALL be by direct or indirect primaries. (4) A political party that adopts the system of indirect primaries for the choice of its candidates SHALL adopt the procedure outlined below:
(c) in the case of nomination to the position of a candidate to Senate, House of Representatives and House of Assembly, a political party SHALL, where it intends to sponsor candidates:
(i) hold a special Congress in the Senatorial District, Federal Constituency and the State Assembly Constituency respectively, with delegates voting for each of the aspirants in designated centre on specified dates; and (ii) the aspirant with the highest number of votes at the end of voting SHALL be declared the winner of the primaries of the party and the aspirant’s name SHALL be forwarded to the Commission as the candidate of the party.”(emphasis mine).
It can be gleaned from the above provisions that the law envisages the resignation of a candidate who is contesting a new election and not as in the present case. Senator Akpabio, having complied with the provisions of all the relevant laws governing our electoral process need not resign his current appointment before going into the rerun election as ordered by the court. The legal maxim of expressio unius personae vel, est exclusio alterius which simply means that the express mention of a person or thing is the express exclusion of another as was held by the Supreme Court in the case of Ehuwa v. OSIEC (2006)10 NWRL (pt.1012) 544, can be invoked in this discourse. In that case, Ogbuagu JSC held thus: “it is now firmly established that in the construction of a statutory provision, where a statute mentions specific things or persons, the intention is that those not mentioned are to be excluded…”
Therefore, having mentioned those who ought to resign their appointment before contesting election under section 66(1)(f) of the Constitution, the constitution did not go further to say what happens in case of rerun election like this one. It is our firm position that the rerun election is merely a corollary of the original process of 23rd February, 2019 elections which Akpabio was eligible to contest. The law is that the whole processes leading to the 23rd February elections are still valid except the completion of the election in Essien Udim Local Government Area.
Thankfully, we find solace in the recent decision of the court of appeal in
Oni v. Fayemi & ORS
(2019) LPELR-46622(CA) which is to the effect that a minister is not required to resign his position before contesting an election. The court held thus:
“It is noteworthy to restate that the post of Minister is a political office, whose appointment is at the pleasure of the President of the Federal Republic of Nigeria, hence not a person in the Public Service of the Federation. The cumulative interpretation of Section 182(1)(g) and Section 318(1) of the 1999 Constitution (as altered), is to the effect that the term public officer should only relate to the holder of offices reflected in Section 318 being employees whose appointments enjoy statutory flavour because it is only them that have conditions of service and or letters of appointment stipulating how many years they are to spend in service, at what age they should retire, number of months to be given as notice etc. Hence even though a Civil Servant is a Public Servant, it is not every public servant that is a civil servant. A Minister is therefore not a public officer who should resign his position before contesting in an election within the contemplation of the aforementioned section of the Constitution. See Orji Vs Ugochukwu (2009) 14 NWLR (part 1161) 207 at 293, Dada vs Adeyeye (2005 6 NWLR (part 920) 1 at 19-20, Asogwa Vs Chukwu (2003) 4 NWLR (part 811) 540 at 546, Gov. Ebonyi State vs Isuama (2004) 6 NWLR (part 870) 511 at 528, Ojukwu v Yar’adua (2008) 4 NWLR (part 1078) 435.” Per Jauro, JCA. (Pp. 39-40, Paras. A-A). Even though the court of appeal upheld our contention but on a different ground, we strongly maintain that even if a minister is a public servant as envisaged in the constitution, the case presented in Akpabio’s case is an exception and cannot apply.
In conclusion, it is our strong view that Senator God’swill Akpabio is eligible to stand for the election without resigning his position as a minister before contesting the rerun election. He has two options as it stands now. He can decide to contest the rerun election if he emerges victorious he has the option of going back to the Senate where he came from, or he can relinquish it for his juicy post as a Minister of the Federal Republic of Nigeria. Therefore, we urge Senator Akpabio’s legal team to urgently approach the court for a judicial interpretation of the Constitution and the Electoral Act before the conduct of the rerun election as ordered by the Court of Appeal. In this sense our electoral process will be richly enhanced.
