By Christian N. Oti, Esq.

INTRODUCTION

Nigeria after her independence practiced the parliamentary system of government, but in 1979, during her Second Republic she switched to the presidential system of government.

This new system of governance in the country which was copied from the American system remains its style as of date. The presidential system invested the executive powers of the country in a single person who is the president for the federation, or the governor for the state. This is what is essentially termed ‘’Executive Presidential System’’. The Constitution of the Federal Republic of Nigeria (hereafter is referred to as the constitution) provides for the executive power and arm of government in Section 5(1)(2)

It is noteworthy from the foregoing provisions that the Vice – President or Deputy– Governor is an important office – holder in the executive arm of government for the Federation or State. It must be stressed that he is different from the ministers or commissioners, as he is an elected officer in the government vide a joint ticket with the President or Governor as the case may be.

MEANING AND NATURE OF A JOINT – TICKET

A candidacy in the political sense of the word refers to the platform given to an aspirant in an election to run under a political party as its candidate. It can also be seen as a political license to contest in an election depending on the jurisdiction.

In Nigeria for instance, there is no place for independent candidacy, hence to contest for a political post, one must belong to a political party and be nominated by it to run for the named elective office under its umbrella. It is therefore on this premise that the courts have severally held that the votes cast for a candidate at any election actually belong to the political party that fielded the candidate, although the powers and functions of the said office inure to the candidate if declared the winner of the election.

Joint-candidacy therefore refers to the single platform given to at least two candidates to an elective office to run under the platform of a political party in line with the dictates of the country’s constitution or electoral law. The ticket is therefore shared by the candidates as “brothers to the same cause”, thus, what happens to one ordinarily affects the other.

The criteria for aspirants in vying for executive positions in Nigeria is clear that they must do so under a joint-candidacy by nominating a partner to run with them, either as a vice-presidential or deputy governorship candidate as the case may be for the federation or of a state. The constitution in Section 187(1)(2) & Section 142(1(2) provides copiously for the office of the president and the vice-president on this score respectfully.

LEGAL DISSECTION OF THE CASES SO FAR

A convenient point to start this analysis is the case of Alhaji Adamu Tafawa Balewa v. Alhaji Adamu Muazu[1], the appellant sought whether he ought not to be declared the winner of the Bauchi State Governorship election of 9th January, 1999, the 1st respondent’s running mate haven been dismissed from the civil service. The election tribunal refused his prayers. On further appeal to the Court of Appeal, the court nullified the action and ordered a bye-election. It was held that the 1st respondent can choose another candidate to run with in the bye-election since it was his deputy that had the disqualifying virus.

It is the author’s view that the saving grace for the respondent in this case to have escaped the effect of a joint-candidacy, is the fact that it was a post-election matter. The case would have been different if it was a pre-election case.

In Atiku Abubakar v. Attorney-General of the Federation[2], as a result of the rift between the then President Olusegun Obasanjo and the Vice-President, Atiku Abubakar, the latter resigned from the PDP to the now defunct Action Congress of Nigeria (ACN). The President declared the office of the vice-president vacant. The Court of Appeal held that the president do not have such right to declare the office of the vice-president vacant. The Supreme Court also agreed with the court below, urged that only the legislature can validly remove or declare the office of the vice-president vacant.

It is however this author’s contention that this decision of the court in this case does not appreciate the nature of a joint-candidacy, and is not the intendment of the constitution as the Supreme Court failed to hold in that case even when it beautifully analyzed it. It is however conceded that the president does not have the power to declare the seat vacant, but the court ought to have held such movement to the opposition party, an implied resignation in line with section 135(1)(c) and 142(2) of the constitution.

Also, in Amaechi v.INEC,[3]the PDP removed the name of the plaintiff as its governorship candidate for the Rivers state election at the time and substituted it with the name of Celestine Omehia, who did not contest in the party’s primaries. The court had no difficulty in disqualifying Celestine Omehia and restored the plaintiff as the governor of Rivers state. But surprisingly, the court left the deputy-governorship candidate.

The author queries this position strongly and states that it does not again reflect the true intent and effect of a joint-candidacy. How can the governor who nominated the deputy-governor be disqualified and the latter left in office? It is argued that their bond starts immediately the governor nominated the deputy-governor as his running mate for the election. Thus, he should have been affected by the same virus, especially as the action was a pre-election matter.

Similarly, in Hon. James Faleke v.INEC[4]; the plaintiff was nominated by the late Prince Abubakar Audu as his deputy-governorhship running mate as required by the constitution. After the election, but before the declaration of the result, Prince Audu passed on. The All Progressive Congress (APC) substituted Yahaya Bello in place of the late Abubakar Audu, wherein the Plaintiff brought this action. The court held that in the event of death, a political party is empowered to substitute the name of a candidate and that since the plaintiff never contested for the party’s primaries, the party was right to have fielded Yahaya Bello who came second in the said primary as its candidate for the supplementary election.

This author strongly disagrees with this decision; it must be emphasized that the nomination of the plaintiff by the late Abubakar Audu created a fusion between the two, such that the rights and liabilities enjoyed by virtue of such joint-candidacy inures clearly to both. It is the law which the court have upheld and backed by the constitution that the candidates of a joint ticket are likened to a “Siamese twins”, and this relationship starts when the candidate wins the ticket of the party at the primaries and have nominated a running mate. Thus, the issue of the late Abubakar Audu not been declared the winner of the November 21st, 2015 Kogi election should not have caused a difficulty for the plaintiff.

Lastly, the court in PDP & 2 Ors v. Biobarakuma Degi-Eremienyo & 3 Ors[5] held the defendant/respondent who was the Deputy-Governorship candidate of the APC, submitted false information with respect to his name to the Independent National Electoral Commission for the November 2019 Bayelsa State Governorship Election and disqualified him, and further held their votes at the polls as wasted. The court ordered that the next candidate with the highest lawful votes be returned as the governor of Bayelsa state.

Many have argued that the court ought to have nullified the election and ordered a fresh election and allow the governorship candidate to select another running mate, citing section 140(2) of the Electoral Act, 2010(as amended) and the case of Balewa v. Muazu(supra) It has also been said that it does not agree with the will of the people since the majority of the votes cast for the respondent were held wasted.

The author dispassionately submits that as far as the law is at the moment, there is nothing in error with the decision. The said provision of the Electoral Act does not cover pre-election matters which this case was but when the election is nullified. In this case, the election was not nullified, only the joint-candidacy of the respondents was disqualified. The issue of meeting the will of the people would also not arise as democracy is not just the will of the majority but the lawful majority.

RECOMMENDATIONS AND CONCLUSION

The constitution has made it clear that for a presidential or gubernatorial candidate to be validly nominated, he must nominate a running mate to occupy the vice or deputy office. It therefore means that the constitution intends that once nominated by virtue of winning a political party ticket, the validity and relationship of a joint-candidacy with its effect starts to run from the time the running mate is selected.

It is also contended that from the tenor of the provisions of the constitution in this regard, the relationship between the candidates of a joint-candidacy, ought to continue till the end of the tenure. Thus, where either of them moves to another party for whatever personal reason, the court ought to hold same as implied resignation. It is therefore recommended that a law should be made barring the executive arm from moving to another political party while in office, except in the case of a merger or serious conflict in the party wherein they were elected as it is for the legislative arm (see section 68(1)(g) of the constitution)

It is further submitted that the issue of whether a case is pre or post election as far as it concerns qualification is misplaced in the author’s opinion. This is because the qualification of a candidate is what makes such a one worthy to contest in the first place, hence whenever the issue is raised; before or after the election, and a candidate is found unqualified, it ought to have a retrospective effect on the joint-ticket of the candidates. They ought to swim or sink together. Thus it is the author’s view that the court ought not to have nullified the election in the Balewa’s case on the basis of qualification as the issue remains personal and has nothing to taint the conduct of an election. This would also save the other contestants from suffering as a result of the wrong of the disqualified candidates.

Furthermore, it is also contended that the nature of a joint-candidacy be interpreted to enjoy the principle of Jus accrescendi, such that the last survivor of the candidates ought ordinarily to inherit the rights of the other in the event of death or withdrawal. This suggestion is as to the case where the oath of office and allegiance have not been taken as provided in the constitution. This will not apply where a candidate is disqualified, for that would be deemed as the joint-candidacy not to have been duly formed or created in the first place. This, the author posit is the error in the decision in Faleke’s case.

Finally, it is against the spirit of the constitution on joint-candidacy that a candidate contesting on a joint-ticket be disqualified while the other is left free. It is worthy of reiteration that the nature of a joint-ticket is to the effect that the candidates have been fused into one and as such only death or withdrawal should be able to separate their union. A candidate and a political party ought therefore to be conscious enough to scrutinize the persons they are fielding for an election to avoid getting to lose out when disqualified by the court.

[1] (1999) 5 NWLR (Pt.603) pg. 636

[2] (2007) LPELR- CA/A/23/2007

[3] (2008) 5 NWLR (Pt.1080) 227

[4] (2016) 18 NWLR (Pt.1543)61

[5] Peoples Democratic Party (PDP) & 2 Ors v. Biobarakuma Degi-Eremienyo & 3 Ors- SC.1/2020