SECURING AN ELECTIVE OFFICE IN THE CONTEXT OF DEMOCRATIC PRACTICE

  • By SOLOMON ADESEUN ESQ

Representative Democracy

What makes a vote unlawful? Should a voter’s ballot be declared unlawful if the voter is qualified to vote but the person he voted for is not qualified as candidate to receive the vote? Should the electorates’ vote be thus wasted when it was the electoral umpire who put the candidate on the ballot for the public as a candidate? If the electoral umpire puts forth a candidate in the usual way on the ballot, and a majority of voters voted for him, what should happen if for any reason, that candidate is found to be unqualified?

Section 14 of the 1999 Constitution establishes Nigeria as a democracy in the following words: “The Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice.” Various other Sections of the Constitution make provisions for the election of persons to conduct government business. An example is the office of the President concerning which Sections 131-134 of the Constitution make provisions regarding election to that office. This shows further that Nigeria is a representative democracy. In a representative democracy, the people elect representatives to conduct government business on their behalf.

Rule of the majority

Since Nigeria is thus a democracy, we need to remind ourselves of the meaning of that term in order to put the issues in proper perspective. Abraham Lincoln famously referred to democracy as “Government of the people, by the people, for the people.” In more practical terms, democracy has been defined as “Government by the people, especially rule of the majority.”[1]According to John Locke, the rule of the majority involves “taking the consent of the majority as the act of the whole and binding every individual.[2] How then do you ascertain the consent of the majority? This brings the more general definition of democracy to the fore when democracy is defined as “A system of government by the whole population or all the eligible members of a state, typically through elected representatives.[3]

Democracy: “Government by the people, especially rule of the majority.”

Constitution’s requirement for rule of the majority

The next question is to determine whether the Constitution requires that elective offices are to be filled in accordance with the requirements of democracy, namely the consent of the majority? Remember, these elective offices are the positions created to be occupied by the elected representatives of the people who should have the people’s authority to conduct government business.

Direct democracy, Canton of Glarus, Switzerland

Let us take as example, Sections 177 and 178 of the Constitution which make provisions for the election of the Governor of a State. Even where there is only one candidate, the Constitution still requires compliance with the requirement of majority rule. Listen to Section 179 (1) (a) as it says as follows: “A candidate for an election to the office of Governor of a State shall be deemed to be duly elected to such office where, being the only candidate nominated for the election, he has a majority of YES votes over NO votes cast at the election.”

Where there are more than one candidate, the Constitution continues to look for the will or consent of the majority. In Section 179 (2), ”A candidate for an election to the office of Governor of a State shall be deemed to have been duly elected where, there being two or more candidates, he has the highest number of votes cast at the election; and he has not less than one quarter of all the votes cast in each of at least two thirds of all the local government areas in the State.”

There are provisions setting forth the qualifications and disqualifications of the President, Governor, their running mates and other would be elective office holders. However, one would have thought that all such provisions are guides to ascertaining who the majority of the people would choose for the particular office for which those qualifications have been prescribed. If a candidate fails to meet any of the requirements, there seems to be little argument that such a candidate is not qualified and should be disqualified. If he has been elected, there again seems to be little argument that he should not be allowed to occupy the office since he had been elected contrary to the agreed Social Charter, the Constitution, the fundamental law of the land. His election is actually a violation of the will of the majority because in theory, it was the majority who laid down, in the Constitution or in some other Law, the qualifications for election to the office.

Securing the objectives of the Constitution

However, the great question is what should be the consequence if a person has been elected but found after the election to be unqualified for the position? How should the Constitution and the laws be interpreted and applied in such a situation?

In the case of Nafiu Rabiu V. The State,[4] Sir Udo Udoma, JSC observed:

“My Lords, it is my view that the approach of this Court to the construction of the Constitution should be, and so it has been, one of liberalism, probably a variation on the theme of the general maxim ut res magis valeat quam pereat (meaning it is better for a thing to have effect than to be made void). I do not conceive it to be the duty of this Court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends.”

Another equally salutary rule of statutory interpretation is that “the literal sense of words used in a statute should be adhered to unless this would lead to absurdity in which case the literal meaning may be modified.”[5]

“A Judge may not add words that are not in the statute, save only by way of necessary implication; nor may he interpret a statute according to his own views as to policy, but if he can discover this from the statute or other material, which it is permissible for a Court to consult, he may interpret it accordingly.”[6]

To adopt the words of his Lordship, Sir Udo Udoma, JSC, it is sufficiently clear that the obvious end of the 1999 Constitution is to secure democracy to Nigeria in the form of majority rule. Every other provision of the Constitution are put there and ought therefore to be interpreted in such a way as to achieve that end, namely majority rule.

Legal challenge

With the background of the foregoing analysis, let us look at the facts of the Bayelsa Governorship imbroglio. There was an election in Bayelsa State on the 16th of November 2019. The All Progressives Congress (APC) and the Peoples Democratic Party (PDP) among others fielded candidates. The Constitution also requires that each candidate must nominate a running mate as Deputy Governorship Candidate on a joint ticket with the Governorship candidate. At the end of the election, the Independent National Electoral Commission (INEC) declared the candidate of the APC as the winner, having scored 352,552 being the highest number of the votes. He won six out of the eight Local Government Areas in the State. The PDP candidate scored 143,172 votes. With this result, it means the majority chose David Lyon of the APC as the person who has their consent to represent them as the Chief Executive of Bayelsa State.

However, there was a legal challenge to the qualification of the Deputy Governorship candidate of the APC, who had meanwhile become the Deputy Governor elect. In the final appeal to the Supreme Court, it found that the Deputy Governor elect had forged a certificate he claimed to have obtained. Thus he was not qualified for the election. The consequence was that he had not been validly nominated as Deputy Governorship candidate. Furthermore, the Supreme Court reasoned that if the election of the Deputy Governor elect was invalid, that fact also invalidated the election of the Governor elect since they contested the election on a joint ticket. Consequently, the Court ordered that the person who had the next highest vote be sworn in as Governor of Bayelsa State. That person would be Duoye Diri of the PDP.

“Our electoral jurisprudence should focus more on strengthening the idea of majority rule, far more than technicalities.”

-Prof. Omoregie.

Implication of the Judgment on majority rule

There have been various reactions to the Supreme Court Judgment. Some are of the view that it is good punishment for the political party who should learn to scrutinise well and present sound candidates in the future. However, many opinions are concerned that with this judgment, the popular votes of the people of Bayelsa State have lost relevance.

According to Professor Edoba Omoregie, “From a strict democracy considerations, one wonders whether the judgment accords with the idea of majority rule. How possibly democratic is it for a candidate who won majority votes in an election to be denied the fruits of his victory, and the people denied his services, because of a technical issue of the qualification of his running mate? The qualifications for gubernatorial office are set out in the constitution. Do they include what the Supreme Court considered in this judgment? In the end, I think the judgment leaves a lot of sour taste in the mouth. I honestly believe that our electoral jurisprudence should focus more on strengthening the idea of majority rule, far more than technicalities.”[7]

With this judgment, the person who would now be Governor of Bayelsa State and Chief Executive for the next four years would be a person who the people of Bayelsa State had rejected at the polls. This person would now appoint Commissioners to run the affairs of the State, he would control the budget of the State for the next four years. He would get to appoint Chairmen and other members of Boards of parastaltas, he would run the education, health and infrastructure sectors for the next four years. In fact, he would affect all aspects of the lives of the people of Bayelsa State for the next four years.

Conclusion

No matter the legal justification any one may use in favour of the judgment of the Supreme Court, the fact remains unassailable that the person who would now be Governor of Bayelsa State did not obtain that office based on the will of the majority. The inevitable conclusion therefore is that the objective of the Constitution in providing a leader chosen by the majority has been defeated.

“Whenever any circumstances arise which would warrant nullifying the votes of the majority in any given election, the next logical course of action to follow should be to report back to the people.”

Consistent with the need to secure the rule of the majority which is the most fundamental characteristic of democracy, consistent with the need to ascertain the consent of the majority; whenever any circumstances arise which would warrant nullifying the votes of the majority in any given election, the next logical course of action to follow should be to report back to the people that an accident had happened and that the person or persons the majority of them voted for could not legally be allowed to take office. If there is any respect for the people, their will should have been consulted as to the qualified persons they would wish to put in office as Governor and Deputy Governor. In order to do this, the Supreme Court should have ordered a re-run election.


[1] Merriam-Webster’s Dictonary.

[2] John Locke, Two Treatises on Government: a Translation into Modern English.

[3] The New Oxford Dictionary of English, 2001.

[4] (1981) 2 NCLR 293 @326.

[5] Dias, Jurisprudence, p. 173 based on Becke V. Smith (1836) 2 M & W 191 @195.

[6] Dias, Jurisprudence, 5th Ed., p.176 based on Shah V. Barnet London Borough Council [1983] 2 AC 309; [1983] 1 All ER 226.

[7] The Guardian, 14th February 2020.

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