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Letter To Co-aspirants-Suit Against PDP and Others – By Henry Odein Ajumogobia

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I wish to commend your steadfastness in standing up, against all odds, for equity, justice and fairness in Rivers State, over the issue of political succession in the State. Sadly, our collective protests and individual actions, to cause our Party, the PDP to do what is right in Rivers State, with regard to the sponsorship of a gubernatorial candidate, in accordance with our Party Constitution and guidelines, appear to have come to naught.

The decision by Chief Nyesom Wike to offer himself as a candidate, to succeed the incumbent Governor, Rt. Hon. Rotimi Chibuike Amaechi, and Sir Celestine Omehia before him, given their common Ikwerre ethnic kinship, came to me as a surprise.

I was however astonished by and objected to our Party’s screening committee’s peremptory clearance of Chief Wike to contest the Governorship primary election, even as several of us were initially disqualified on the entirely spurious ground, that we were not members of the Party!

Legal Action

First, I sought to exhaust our Party’s internal mechanisms as required by the PDP Constitution, by a protest letter to the Chairman National Working Committee, requesting the Party to correct the anomaly. (Copy of my letter is attached). I have received no reply till date.

Thereafter, in view of the then imminent gubernatorial primary elections, scheduled for 8 December 2014, I decided to seek a judicial interpretation of the relevant provisions of our Party Constitution, and to also challenge the illegitimate and unfair process, upon which the primary elections were then to be conducted.

I felt somewhat compelled to do so because in 2010, I had as Nigeria’s Foreign Minister addressed the US Council on Foreign Relations, and explained the import of this unique (zoning) provision in the PDP Constitution, as promoting fairness and inclusion. You may see the cut of the Council on Foreign Relations’ video and the transcript at: https://www.youtube.com/watch?v=qqhcikWra5o&feature=youtu.be http://www.cfr.org/nigeria/conversation-henry-odein-ajumogobia/p22769

I thus filed a suit on 27 November 2014, in the FCT High Court, in Abuja, where the National Secretariat of the Party is situated. PDP was then the sole Defendant.

The PDP Constitution and Power Shift/Rotation

As we are all aware, the Constitution of the Federal Republic of Nigeria 1999, imposes a mandatory duty on every political party to register “a copy of its Constitution in the principal office of the Independent National Electoral Commission……” (s.222).

The Constitution of the PDP 2012 (as amended) unambiguously and expressly stipulates inter alia, that the Party, “resolved to conform with the principles of power shift and power sharing by rotating key political offices amongst the ‘diverse peoples’ of the country” and SHALL adhere “to the policy of the rotation and zoning of Party and Public elective offices in pursuance of the principles of equity justice and fairness”.

In the suit, I am seeking answers to a series of questions that include the essential one as to the following:

Whether within the meaning and intent of the entrenched policy of zoning/ rotation of elective political/ public offices enshrined in the PDP Constitution, any member of the PDP in Rivers State who is from the SAME ETHNIC NATIONALITY AS THE TWO PERSONS WHO HAVE SINCE 2007 OCCUPIED THE OFFICE OF GOVERNOR OF THE STATE ie THE IKWERRE ETHNIC NATIONALITY, namely, SIr Celestine Omehia AND Rt Hon Rotimi Chibuike Amaechi who were both elected on the ticket of the PDP, is ELIGIBLE to participate as an aspirant/ candidate for the selection/nomination of the PDPs governorship candidate in the forthcoming election in Rivers State;

Ward Congresses, Delegates Selection and Primaries

Other questions presented, concern the legitimacy of the conduct of the primaries themselves and whether they are not “invalid, unconstitutional, null and void”, based on the evident illegality under extant Public and Civil Service regulations of the constitution of the five man committee, comprising officials of the Federal Ministry of Education that supervised the ward congresses. Incredibly, each member of the committee was a person that apparently served in their current civil service positions under Chief Nyesom Wike, when he was Minister of State for Education!!

This was the committee that conducted and “certified” the purported ward congresses, leading to the selection of delegates for the gubernatorial primary elections! It is difficult to contemplate a greater likelihood of bias against other aspirants!

The Rivers State Gubernatorial primaries election, proceeded as scheduled on 8 December 2014, despite the Court’s admonition to the PDP, not to foist a fait accompli on the Court when the matter came up on 4 December 2014.

I later learned, that only four aspirants, other than Nyesom Wike, had unrestricted access to the venue of the primaries for accreditation, prior to commencement of actual voting. It is however my view that personal attendance at a primary venue is not a legal requirement, for one to have “participated” once an aspirant had been cleared, since votes could, and have been known to have been legally cast in absentia of the person for whom they are cast.

Of course as the Plaintiff in the suit, I was in Court on that morning of 8 December 2014, as directed by the learned trial Judge, and did not personally attend at the venue of the primaries conducted in defiance of the still pending motion for interlocutory injunction to suspend the conduct of same, and the learned trial Judge’s firm admonition to the parties in Court about doing so.

We were still in Court, when news filtered in that Chief Nyesom Wike had been declared the winner of the purported primaries by just under 98% of the purported delegates votes and was thus to be the Party’s candidate in the general election.

Legal Process and INEC Timelines

While still in Court on 8 December, Chief Wike and four others applied through counsel to join in the suit as “parties interested”.

An Order for joinder was consequently made of all five “parties interested”, as 2nd to 6th Defendants respectively.

We then sought an accelerated hearing, notwithstanding the commencement of the Court’s Christmas vacation on 12 December 2014. In this regard we drew the Courts attention in an affidavit of urgency, to the INEC ‘s following deadlines prescribed in the Electoral Act 2010 (as amended):

25 December 2014 – last day for submission of names of candidates the Party proposes to sponsor at the (gubernatorial) elections; (viz. “not later than 60 days before the date appointed for a general election….” (s.31)

13 January 2015 – last day for withdrawal of Governorship candidates;
(“not later than 45 days to the election”) (s.33 and s.35)

27 January 2015 – last day for nomination of candidates and publication of the lists of candidates. (“no later than 30 days before the day of the election”) (s.34)

The implication of these strict INEC timelines are far reaching. As long as the matter of Chief Nyesom Wike’s eligibility to be the candidate of the PDP in the general election had not been decided by the Court, before the 13 January 2015, it means that PDP submitted to INEC, the name of a person whose eligibility was being legally challenged in Court, with the right to substitute foreclosed, in the event of our legal challenge being successful!

Indeed, it would seem that if the Courts at any subsequent time in future were to declare that the mandatory power shift/ rotation and zoning provisions of the PDP Constitution are binding and enforceable, making Chief Nyesom Wike ineligible as we contend, PDP would effectively be deemed not to have presented a candidate, in the general election!

Hearing During the Court’s Christmas Vacation

The Court rules expressly provide that matters may be heard during the Courts’ vacation If (a) they are urgent, or (b) all parties consent.

The Defendants counsel comprising three senior advocates of Nigeria, perhaps not surprisingly, withheld their consent. The Judge’s ruling was that the matter was not urgent (or that any urgency was self imposed) and that in any event our application ought to have been formalised in writing, in strict compliance with the Rules of Court.

The hearing was thereupon adjourned to 15 January 2015 – two days after INEC’s deadline of 13 January 2014, for withdrawal/substitution of gubernatorial candidates!!

The essential purpose of the suit was a) to determine Chief Nyesom Wike’s eligiblity “under the PDP Constitution” to contest as an aspirant in the gubernatorial election primaries or as a candidate in the general election; b) to challenge the entire process by which Wike emerged as winner of the gubernatorial election primary c) to cause Chief Wike to withdraw and be substituted, with the winner of a transparent fresh primary process.

We therefore immediately filed a formal application (as required by the Judge) seeking an acceleration of the scheduled 15 January 2015 hearing date, during or immediately after the Courts’ Christmas vacation, to enable a Judgement in the suit, before 13 December 2014.

Unfortunately, this application for accelerated hearing had still not been fixed for hearing, when an indefinite strike was called on 2 January 2015 by the Judiciary Staff Union of Nigeria, frustrating the hearing of the matter, as the Courts have remained shut and inaccessible since then.

In the meantime, the PDP proceeded to submit the names of Chief Nyesom Wike, together with his selected running mate Dr Ipalibo Harry-Banigo, to INEC and formally inaugurated him as the PDP gubernatorial candidate.

As we know the gubernatorial election is currently scheduled by INEC to take place on 28 February 2015.

Suit against the Party – Implications

When I filed the suit I was keenly aware that by suing the Party, (even though I had followed Party prescriptions to seek to explore the Party’s internal mechanisms to resolve disputes, through my protest letter to the Chairman of the National Working Committee of the Party, prior to filing the Court action), it was most unlikely that the Party would thereafter be enthused towards me being its flag bearer.

It was also clear to me that constraints of time, given the time table of INEC, largely imposed by the Electoral Act, would not have enabled all the proper processes (including a proper PDP membership revalidation/ registration exercise as a prelude to fresh ward congresses and primaries to elect a gubernatorial candidate), to be concluded, in the event that Nyesom Wike was barred by the Party or the Court ( having made himself a party to the suit) from contesting the gubernatorial primary election on 8 December 2014,

Further, I recognised that Nyesom Wike himself, would be most unlikely to embrace the candidacy of the person who took legal action that influenced or resulted in his disqualification and withdrawal. I mentioned this point to a number of you in person. This is to say that my action was therefore far from being merely self serving.

The Effect of a Successful Eligibility Challenge after 13 January 2015

It is apparent that proceeding with my legal challenge of Chief Wike’s eligibility beyond 13 January 2015, would be to seek to disqualify the PDP’s chosen candidate for Governor of Rivers State (regardless of his eligibility under the PDP Constitution), even when the Party would then be barred by law viz the Electoral Act, from offering a substitute candidate.

Indeed, if the Courts were to accept the unassailable interpretation of the relevant provisions of the PDP Constitution, and decide that he was indeed not eligible, in the event of the case not being heard before 28 February 2015, ( the date of the general election) and Chief Wike winning the election, it appears that he may be required to vacate the office, in favour of the runner- up candidate in the election, (who had met minimum constitutional requirements), as it would be deemed that PDP did not present a candidate for the election. It is my ambivalence over this critical issue that informed my seeking independent legal opinion on this issue.

No Defence to the Claim

The PDP, Chief Wike and others, clearly have no defence on the merits of my claim. They have therefore resorted to the ubiquitous and dilatory preliminary objection, to argue, first that I did not obtain the mandate of the PDP to seek a judicial interpretation of the PDP Constitution!; Secondly that my action should have been brought in Rivers State (where the Courts have been shut since June 2014) and not in Abuja, where the PDP national headquarters is situated; and finally that the Court should not intervene in what is a “political question” and an internal Party matter.

I gather that this last point about it being a “political question” and therefore “not justiciable”, was made by a highly respected Senior Advocate of Nigeria, Chief O.C.J. Okocha who called in during a recent radio interview given by Fafaa Dan-Princewill, to highlight his endorsement of this contention.

Unfortunately the judiciary workers strike, made it impossible for the Court to hear any arguments in the case before 13 January 2015, despite our continuing best efforts to secure an accelerated hearing, since 8 December 2014.

These points of objection to the jurisdiction of the Court, have however been brilliantly answered in the excellent written address which was filed by my counsel, Patrick Ikwueto SAN on my behalf, even before the points were raised by the Defendants!

Regarding the only seemingly tenable submission of the Defendants, that my claim raises a “political question”, in respect of which the Courts have held that they will not interfere, our succinct and unassailable response in the written address, is worth noting for your information and for the record.

We cited the well known case of Ugwu v. Ararume (2007) All FWLR (part 377) 807 at 875 where Oguntade J.S.C. put the matter beyond question. He declared:

“If the Political Parties, in their own wisdom had written it into its Constitution that their candidates for election would emerge from their party primaries it becomes unacceptable that the court should run away from the duty to enforce compliance with the provisions of the Parties’ Constitution. The court did not draft the Constitution for the Political Parties. Indeed, the court, in it’s ordinary duties, must enforce compliance with the agreement reached by the Parties in their Contract”.

We then cited numerous other cases in which the Supreme Court has firmly laid down the clear exception to the elementary principle that Courts will not entertain political questions, that a Political Party must obey its own constitution and that a court of law will not allow a Political Party to act arbitrarily and contrary to its Constitution!

We also highlighted a passage from another leading case which had reiterated the “political question” principle, in which the Supreme Court hinged the exception to the principle, on the contractual nature of the Constitution of Political Parties. In Onuoha v. Okafor (1983) N.S.C.C. 494 Obaseki J.S.C.said at p.505:

“The Party, like any other corporation, operates within guidelines, the powers and duties set out in its Constitution. All it’s members are bound by its provisions and their rights and obligations created by their Constitution can be remedied as provided by the Constitution if breached by any of it’s members”.

Further, and most significantly, we have drawn attention to the Supreme Court’s emphasis that “the Courts are not precluded from determining any questions as to whether the act of the Party is in consonance with it’s own Constitution. The Court can entertain any question as to whether the Party in taking any action, complied with, or violated it’s own Constitution” Peretu v. Gariga (2013) 5 NWLR (part 1348) 415 at 435 per Ngwuta J.S.C.

INEC has also recently declared that it can not get involved in questions concerning eligibility of candidates whose names have been submitted, and that such issues can only be decided by the courts.

Perception of Ethnic Domination

In a pluralistic society such as ours, aptly described in our PDP Constitution as made up of “diverse peoples”, political leadership especially, must abhor and refrain from promoting acts of disunity, which may have a tendency to create, even a remote perception of ethnic (or religious) domination, whether in our dear Rivers State, or in our beloved Country.

That any political leadership should consciously promote an act capable of heightening ethnic (or religious) tensions in any part of the country, is a tragic setback for our fragile democracy and our future as a nation.

The fear of ethnic domination has been the basis for much of the calamity, that has befallen our nation, from its very foundation and especially since that ill-fated day of 15 January 1966, when a group of patriotic or parochial officers of the Nigerian Army, changed the course of our history as a nation.

It is in some ways poetic, that the FCT High Court coincidentally fixed the same 15 January, as the date to hear my legal challenge to what I perceive as the sowing of the insidious seeds of ethnic domination in Rivers State, that the candidacy of Chief Nyesom Wike sadly represents, in violation of the unambiguous and mandatory provisions of the 2012 Constitution of the PDP (as amended) with regard to power shift, rotation and zoning.

I believe that these provisions are binding on the party, its leadership and its organs and are enforceable and that Chief Nyesom Wike is consequently not eligible to be a candidate to succeed Rt. Hon. Rotimi Chibuike Amaechi, after eight years as Governor of Rivers State, because of their identical ethnic affinity in an ethnically diverse state like Rivers State.

This is the central issue that I have placed before the Court.

A Pyrrhic Victory

A hearing of my case after 13 January 2015 however, would now seem to lead, ( if the Court accepts our contention) to a Pyrrhic victory for me and also to the possibility of our Party the PDP, conceding the election to another Political Party, by being deemed, not to have had a candidate in the general election.

Neither outcome serves my personal interest, nor the individual aspirations of those of us in the PDP, who sought to succeed Governor Amaechi who became Governor on the platform of the PDP notwithstanding his defection to the APC, or indeed our erstwhile collective purpose of PDP winning the Gubernatorial election in Rivers State on 28 February 2015.

It is especially instructive that my locus standi in the case, and indeed yours, if any of you were to join the suit as co- plaintiffs, derives exclusively from our good standing as a bona fide members of the PDP, as declared by the PDP Gubernatorial Appeal Committee, and aspirants to the office of Governor of Rivers State.

A Matter of Principle

Notwithstanding my firm and continuing belief in the legal merits of my challenge of Chief Nyesom Wike’s eligibility as a candidate under the PDP Constitution, as a longstanding member of the PDP, I have asked my appointed legal teams, comprising leading constitutional and electoral law experts, to carefully and dispassionately evaluate the prospects of proceeding with my legal action, whenever the judiciary workers strike is finally called off. I have specifically requested them to review the legal implications/consequences of a judgement in our favour in the present circumstances, as it might affect a PDP victory in the election.

The reason for such circumspection, is that, unless the declaration of Chief Wike’s ineligibility per se would not void the Party’s victory. it would seem that the sole purpose, (barring, a postponement of the elections and the possible consequent adjustment of INEC’s current timelines for withdrawal/ substitution of candidates), would ostensibly be to seek to simply disqualify Chief Nyesom Wike, the candidate being sponsored by the PDP, (against whom I have no personal grouse).

I would therefore welcome the views of you all, who have remained faithful to our efforts to seek equity justice and fairness with regard to political succession in Rivers State, in accordance with the Constitution of the PDP, to which we all belong.

Legal Opinions

I also wish to inquire whether any or all of you, might wish to join as co – plaintiffs in the still pending suit, seeking to challenge the eligibility of the PDP flag bearer, and on principle, perhaps take this matter, to its logical and necessary conclusion in the Supreme Court of Nigeria, subject to the several independent legal opinions which I have requested from leading constitutional and electoral law experts.

These crucial legal opinions have been sought to definitively establish that a Nyesom Wike victory, would remain a PDP victory, notwithstanding a declaration of his ineligibility (under the PDP Constitution), AFTER the election, (given the unlikelihood of a decision before the election) following the well known principle in s.221 of the 1999 Constitution and precedents established by the Supreme Court in Amaechi v. INEC [2007] 18 NWLR (part 1065) 105, with regard to gubernatorial elections being won by the Party and NOT the candidate which the Party purports to have sponsored and specifically that “it is only a party that canvasses for votes that wins an election”.
Needless to say your individual responses will be greatly appreciated. I therefore look forward to hearing from you at your earliest convenience.

Yours truly

H. Odein Ajumogobia SAN

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