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Femi Falana, SAN, a human rights lawyer, has backed a high court judgment sacking Dave Umahi and Eric Kelechi Igwe as governor and deputy governor of Ebonyi State, noting that votes cast in any election in the country belong to the political parties, not candidates.
Umahi who won a second term seat as governor of Ebonyi under the platform of the PDP in 2019, defected to the APC in November 2020, alongside the deputy governor of the state, Igwe and 17 members of the state house of assembly, all of whom were sacked by the Abuja high court on Tuesday, March 8.
The court had in a judgment delivered by Justice Inyang Ekwo, held that the total number of 393, 042 votes governor Umahi secured during the March 9, 2019 governorship election in Ebonyi state, belonged to the PDP and same could not be legally transferred to the APC.
According to the court, having defected to the APC, both Umahi and his deputy, not only jettisoned the PDP, but also the votes that belonged to it. It held that going by the outcome of the governorship election, the office of the governor and deputy governor in Ebonyi state, belong to the Plaintiff and no other politcal party.
There is no constitutional provision that made the ballot transferrable from one party to the other.”
It held that the PDP is bound to retain the votes and mandate that was given to it by electorates in Ebonyi state, as both governor Umahi and his Deputy could not validly transfer same to APC.
The court therefore ordered both Umahi and Igwe to immediately vacate their positions.
The issue has continued to generate reactions among lawyers, with some backing the judgement and others arguing on the contrary.
Intervening on the development in a legal opinion article released on Tuesday, Falana said critics of Ekwo’s verdict failed to state that the majority of votes in the Ebonyi 2019 governorship poll were in favour of PDP that presented Umahi as flagbearer.
“Those who have placed uncritical reliance on Atiku’s case have failed to appreciate that the validity of the votes scored by the PDP in the presidential election did not arise for determination,” he wrote.
“To that extent, the case cannot be a justification for the subversion of the democratic rights of voters by political defectors.
“Whereas in the 2019 governorship election in Ebonyi State, the PDP garnered 393,343 votes across the 13 local governments areas of the state, its closest challenger, the APC, got 81,703 votes.
“After the PDP had emerged the winner of the election, the certificate of return was issued in the name of its flagbearer by the INEC Chairman, Professor Yakubu Mahmood, who stated that ‘I hereby certify that Nweze David Umahi of Peoples Democratic Party (PDP) has been elected to the office of Governor of Ebonyi State…’
“Even though Governor Umahi has decamped from the PDP to APC, neither the INEC nor the high court of Ebonyi state has amended the certificate of return to read ‘Nweze David Umahi of the All Progressives Congress.’
“It is interesting to note that some lawyers have maintained that Governor Umahi has exercised his freedom of association by decamping from PDP to APC.
“While the governor’s freedom of association is constitutionally protected, he cannot be permitted to infringe on the democratic rights of the 393,343 citizens who voted for him as the governorship candidate of the PDP.
“Or are we to believe that the votes scored by the PDP have been merged with those of the APC since the PDP candidate decamped to APC?
“Curiously, in making a mockery of the democratic rights of the people of Ebonyi State, the critics of the judgment of Justice Egwu have failed to advert their minds to the undeniable fact that the majority of the voters actually exercised their franchise in favour of the PDP. After all, the names of the candidate David Umahi and his deputy were not on the ballot papers.”
Falana also cited a reference to the case of Zamfara in which the votes of the All Progressives Congress (APC) were nullified in 2019 by the supreme court over issues arising from the party’s failure to conduct a valid primary.
“In the leading judgment of the Supreme Court in All Progressives Congress v. Marafa, LOR (24/05/2019) SC, Justice Paul Adamu Galinji declared that all the votes cast for the APC were ‘wasted votes’ on the grounds that the party failed to conduct a proper primary,” Falana said.
“The court added that all political parties with the second highest votes in the elections and the required spread, are elected to the various elections.
“In the instant case, the votes credited to the PDP in the 2019 governorship election in Ebonyi State cannot be said to have been wasted based on the decision of Governor Umahi to decamp to the ruling party.
“Since the said votes are not wasted, it is inconceivable that they have been legally transferred from the PDP to the APC. Under no law in Nigeria can the exercise of the right of Governor Umahi to defect from the PDP to APC extinguish the 4-year mandate freely given to him on the platform of the PDP during the 2019 general election.
“We wish to submit, without any fear of contradiction, that elections are won by political parties and not by candidates.
“In Amaechi v. INEC & Ors (2008) LCN/3642 (SC), the Supreme Court held that ‘The above provision (i.e. section 221) effectually removes the possibility of independent candidacy in our elections; and places emphasis and responsibility in elections on political parties. Without a political party a candidate cannot contest’.”