Why Akpabio can contest rerun without resigning

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 Senator Chris Ekpenyong of the Peoples Democratic Party (PDP), and conduct a rerun election in Essien Udim in Akwa Ibom state within 90 days, there have been reactions against and/or for the judgment. In fact, PDP in Akwa Ibom state has welcomed the judgment as a good development and urged the Minister of Niger Delta Affairs, Senator Godswill Akpabio (the immediate past governor of the state) to resign his appointment and avail himself for the election because, according to him, it is an opportunity to widen the margin of victory for the PDP in the February 23, 2019, elections. In said, “We welcome the judgment of the Court of Appeal which has proven that widespread irregularities occurred in Essien Udim LGA 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 Akpabio and the All Progressives 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.

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 1999 Constitution 1999 as amended, and the Electoral Act, 2010 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 reveals that the law never envisages a situation like this, and therefore, never expects Akpabio to resign his current appointment before going into the rerun election.

Section 66(1)(f) provides: “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) state 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. 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. 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…”

In conclusion, it is our view that Senator Akpabio is eligible to stand for the election without resigning his position as a minister before contesting the rerun election. He has two options – he can decide to contest the rerun election if he wins 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. Therefore, we urge Akpabio’s legal team to urgently approach the court for legal interpretation of the constitution and Electoral Act before the conduct of the rerun election. In this sense our electoral process will be richly enhanced.

Agu, Esq (CIArb), a lawyer, writes from Enugu via [email protected]; 08185313113

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