Ogala: Why APC Congresses Remain A Nullity In Eyes Of Law
Former National Legal Adviser of the APC, Mr. Babatunde Ogala (SAN), has again advanced legal reasons why the All Progressives Congress (APC) congresses remained a nullity in the eyes of the law and should be cancelled forthwith.
This is the second time in a row that he was advancing his legal views on the problems associated with the congresses of the party.
In his first view, he recommended the reinstatement of the dissolved National Working Committee (NWC) without the former National Chairman, Adams Oshiomhole, because his suspension followed due process.
Ordinarily, he said the party’s Board of Trustees (BOT) should have held sway, however,lamented that, as at press time, the ruling party had no BOT.
Yet, in his second legal opinion, he reiterated his conviction that the congresses of APC remained a nullity in the eyes of the law.
He also contended that the reason the APC was deliberately looking away from the facts, was because the opposition Peoples Democratic Party (PDP) and its candidate, Eyitayo Jegeda, did not challenge the votes cast in that election but rather zeroed in on the nomination of the APC candidate and the nomination process, adding that in response to that the apex court submission that, “Governor Buni ought to have been joined, does this not say it all?”
Meanwhile, ahead of the PDP governors’ meeting today, where a position is expected to be taken before their meeting with the special committee of the party’s Board of Trustees (BoT), one of the top members of the National Working Committee (NWC) has said the current leadership of the party was not desperate to remain in office beyond December 9 this year.
Addressing the state of the party, Ogala said, “I hold the view that it is incorrect (factually and contextually) to state that the Supreme Court upheld the decision of the Tribunal regarding the impact of Section 183 of the 1999 Constitution (as Amended) and Article 17(iv) of the APC Constitution. If this was the case, the Court would not require that Governor Mai Mala Buni ought to have been joined as the Court would have already determined the question in his absence.
“The purport of the advice of the learned Attorney General of the Federation (with respect) is akin to asking a Pastor or an Imam who is watching on his CCTV camera in his house as 3 (Three) strange men armed with guns and cutlasses scale over his fence, heading for his back door, not to alert the Police but to instead allow them enter his sitting room so he can confirm if they came to rob him or they came to seek deliverance at 2 am in the night.
“That opinion most respectfully stands logic on its head, and it is therefore misleading in my opinion. Also, it is not correct to insist that the opinion of the minority in this case is meaningless taking into account the fact that the majority rested its decision on a technical point.
“The technical point, which is non-joinder is one that can be cured in any subsequent suit and that is why the failure of the majority decision to directly disagree with the substance of the minority decision presents an existential threat to the All Progressives Congress. As I noted in my earlier opinion, the Court gave a hint by the silence of the majority and a wink by the decision of the minority.
“Therefore, the purport of the advice of the learned Attorney General of the Federation (with respect) is akin to asking a Pastor or an Imam who is watching on his CCTV camera in his house as 3 (Three) strange men armed with guns and cutlasses scale over his fence, heading for his back door, not to alert the Police but to instead allow them enter his sitting room so he can confirm if they came to rob him or they came to seek deliverance at 2 am in the night. I would have thought that the smart money would be to call the police so that they can seek deliverance in the presence of the Police.
“It is my view that it is wrong and unfair on APC and all those who seek office through its platform to be asked to face the risk faced by our Governor, Arakurin Akeredolu. This can be avoided by doing the right thing.
“In another breath, those who compare APC to a club, or an association of elected officers miss the point completely. Besides being a constitutional entity provided for in Sections 221, 222 and 223 of the 1999 Constitution (as Amended), APC has presence of party leadership through its Polling Unit Committee in over 170,000 Polling Units in Nigeria.
“The Chairman of the NWC and his team are responsible for the day-to-day running of this huge statutory entity and that is the role being played by Governor Buni and his team today. How can this not be an executive position as contemplated by Section 183 of the 1999 Constitution?”
He said the apex Court has not left anyone in doubt except those who choose to ignore them, adding, “In the light of the foregoing, how do we proceed as a political party? I hold the view that the untenable position of Governor Mai Mala Buni as de facto APC National Chairman is the smallest of APC’s problem.
“The bigger issue is the fact that the entire Caretaker Committee structure is unconstitutional as it runs counter to the spirit of Section 223 of the 1999 Constitution, which mandates political parties to have only democratically elected leadership.
“It states inter alia in Section. 223. (1) that: (a) The constitution and rules of a political party shall provide for the periodical election on a democratic basis of the principal officers and members of the executive committee or other governing body of the political party and (b) ensure that the members of the executive committee or other governing body of the political party reflect the federal character of Nigeria.
“(2) For the purposes of this section – (a) the election of the officers or members of the executive committee of a political party shall be deemed to be periodical only if it is made at regular intervals not exceeding four years.”
Ogala explained that the provision was very similar to that contained in Section 7 of the 1999 Constitution (as Amended), which states that, “The system of local government by democratically elected local government councils is under this Constitution guaranteed; and accordingly, the Government of every State shall, subject to Section 8 of this Constitution, ensure their existence under a law, which provides for the establishment, structure, composition, finance and functions of such councils.”
To this end, Ogala said, “This mandatory provision for democratically elected leadership was held by the Supreme Court not to admit of replacement by Caretaker Committees. This was the decision in Governor Ekiti State & Ors V Prince Sanmi Olubunmi & Ors (2016) 3 Nwlr (Part 1551).
“To clear any further doubt on this point, the apex Court stated this position in respect of the case brought by ALGON against Oyo State Government. It is instructive that this case arose after the Oyo State Government disregarded the advice of the Attorney General of the Federation stating that Caretaker Committees could not replace democratically elected officers as contemplated by Section 7 of the 1999 Constitution.”
The former national legal advisee of APC stressed further that the Supreme Court agreed with the Attorney General of the Federation then and nothing has changed in respect of that position of the law in relation to APC leadership, which the same Constitution mandated to be a product of democratic elections.
“Therefore, without a doubt, APC must use this opportunity to correct all mistakes by going back to that dissolution of its NWC and all democratically built structures and re-instate the democratically elected NWC members, and other structures of the party.
“I implore us to adopt the admonition of the Attorney General of the Federation, Abubakar Malami, SAN to Oyo State Governor on the dissolution of democratically elected structures of the Local Governments in the state in contravention of Section 7 of the Constitution and which said admonition was given an imprimatur by the Supreme Court in dealing with our own current challenge.
“Sections 7 and 223 of the Constitution are almost on all fours that only democratically elected leadership shall be vested with responsibilities for the management of affairs of Local Governments and Political Parties.”
Ogala claimed that the Supreme Court spoke on Section 7 and validated the warnings of the Attorney General to the Oyo State Government, adding, “The same warning by one of our own is also available to us in APC. Let us take heed and do the needful and respect the country’s Constitution.”
Furthermore, the learned silk maintained that, all other structures of the party hitherto dissolved must be re-instated from NEC to Ward Executives.
This, he said, “is absolutely necessary, because the question of whether APC can still be referred to as a political party in its current state in view of its lack of vital organs as required by law is of a very poignant concern.
“Without a doubt, many may feel they maintain an advantage today, because of their access and control of levers of the APC. Yet, they must be reminded that 100% of zero is still zero. Also, admittedly, the CECPC has done some work since coming on board. However, all that now stand voidable. It is my view that we save all that and more by taking the bold step now.
“Finally, we must recall that our electoral laws are rapidly progressive. Until recently, political parties were held to be the ones who owned votes cast at an election so it did not matter if there was a candidate or not.”
Citing legal authorities to substantiate his position, he urged those advocating different legal opinions to see AMAECHI v. INEC & ORS (2008) LPELR-446(SC) and argued that all that changed in Zamfara State, where in APC V MARAFA (2020) 6 NWLR (1742), the apex Court held that APC votes were wasted for not having duly nominated candidates.
Also, he said the Court never used to intervene in party congresses but in APC v. UMAR & ORS (2019) LPELR-47296(SC), the Court intervened and by so doing, APC lost out even before the election in Rivers State was conducted.
“The Courts did not also use to intervene in leadership crisis of political parties since the days of Onuoha V. Okafor (1983) 2 SCNLR 24 but that changed in PDP V SENATOR ALI MODU SHERRIF & ORS. (2017) LPELR-42736(SC) and was recently reaffirmed in ADAMS ALIYU OSHIOMHOLE V COMRADE MUSTAPHA SALIHU & ORS (2021) 8 NWLR (PART1778).”
He, therefore, said the trajectory of the Courts in respect of political matters was fairly apparent and predictable, when examined without bias and vested interest.
Ogala concluded by urging the APC to make haste when the sun was still shining, saying, “I urge our leaders to take heed while the party still can”.
In the PDP, an NWC member, who didn’t want to be quoted, said the constitution of the PDP did not recognise any caretaker committee, explaining that the APC was enjoying a caretaker committeeship, because of the respect INEC gave to the ruling party and President Muhammadu Buhari.
The NWC member, therefore, called for a law by the National Assembly to make INEC and all the political parties in Nigeria as it is in the United States of America and Ghana to be insulated from manipulations of government officials like the president, governors and hijack by money men and women.
He said though the leadership crisis might have been contained, the truth was that none of the members of the NWC was desperate to retain his or her office.
“Though the crisis has been sorted out, but there is the need to say clearly that the members of the NWC are not desperate to stay in office beyond December 9, 2021, constitutionallyrecognised four years in office. The PDP constitution clearly stated that the tenure of all NWC members are four years guaranteed.
“Members of the NWC can recontest, if they desire to do so. This is the constitutional right, which no one can deny them. It is left for the delegates to elect them or say so.
“This constitution since it was amended is deposited with INEC and further to that the Electoral act as amended insisted that all tenures of the NWC of any political party, including the PDP must be tenure guaranteed
“Apart from that, all NWC of any political party must be elective and therefore, there is no provisions or provision that guaranteed the establishment of caretaker committee. What is happening in the APC is because of the fact that it is the ruling party and the respect or privilege INEC has for President Muhammadu Buhari. It’s a constitutional aberration,” the source said.
The source said what was needed now is a law that would guarantee the independence of INEC and insulate the political parties from manipulations as the case in the United States of America and Ghana, “then our democracy would have been said to be established”, adding, “This is a challenge that we are throwing to the National Assembly and when this is done, we can say that we are truly an amazing democratic nation.”
On the main reason for the crisis in the PDP, the source said, “It is all about the struggle for the 2023 general election. See, we were elected in 2017. 2018 gone, no crisis and after the elections of 2019 and basically in 2020, there was covid-19 lockdown. In 2021, there is the power struggle for the repositioning of interest and some money bags; they believe that this is the time to hijack the party, so as to actualise their political ambitions.
“If the political parties, including the PDP is insulated from the influence of money bags and governors, the parties would be protected. That is to say, if they are insulated from government officials and the governors, the democratic system would have been better off for it,” the source said.