ELECTION PETITIONS ARE HERE PT.2

In all honesty guys, this isn’t supposed to be a part two, because this is the second arm of ground 1 which I discussed in part one.  So, we are still dealing with the ground that says “The 2^nd Respondent (Senator Bola Ahmed Tinubu) was, at the time of the election, not qualified to contest the election”. The second reason given by the Petitioners in support of this ground, is that the 2^nd Respondent was fined the sum of $460,000.00 (Four Hundred and Sixty Thousand United States Dollars) for an offence involving dishonesty, namely narcotics trafficking, imposed by Judge John A. Nordberg of the United States District Court, Northern District of Illinois, Eastern Division in Case No: 93C4483, on October 4^th, 1993.

Basically, the Petitioners are telling the court that the 2^nd Respondent could not have been qualified to even contest the said election because he is an ex-convict of the Untied States of America. I and a few of my colleagues have had a little discussion over this, and it is from the discussion that I intend to give an explanation of this point in particular.

The first point is, was the 2^nd Respondent convicted?

Now, there are those that say that forfeiture is not conviction. According to them the very fact that the US Court asked the 2^nd Respondent to forfeit a certain amount does not mean that he was convicted of a crime. I however, I am not a part of that group. This is because, I know that a Court can order forfeiture as its punishment for a crime, and this will only happen when the prosecution team has proved its case beyond reasonable doubt, thereby leading to a conviction, or the accused knowing fully well that the prosecution has a very strong case against him and would most likely succeed, would rather do what we lawyers call a “plea bargain”. Most often than not, it is the accused’s lawyer that advises the accused to take this option. This option allows the accused to admit he committed the said offense without a trial and get a lesser punishment, which can be either a forfeiture, a fine or lesser jail term. To me, whichever way, there is criminal case. No innocent person is ever asked by a court of competent jurisdiction to forfeit or serve a jail term. I am also certain no sensible lawyer will ask his/her client to take a plea bargain when the prosecution has little or no case.

That being said. Let us go to the second issue, which is, even if the 2^nd Respondent was convicted by the US court, how does that disqualify him? Why are the Petitioners pushing this argument?  Probably because section 137(D) and (E) of the 1999 Constitution states that a person shall not be qualified for election to the office of President if:

(D)He is under a sentence of death imposed by any competent court of law or tribunal in Nigeria or a sentence of     imprisonment or fine for any offence involving dishonesty or fraud (by whatever name called) or for any other  offence, imposed on him by any court or tribunal or substituted by a competent authority for any other sentence  imposed on him by such court, or

 (E) Within a period of less than ten years before the date of the election to the office of President he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of the contravention of the Code of Conduct; or

137 (D) says that a person is not qualified to run for the office if he is (i) under a death sentence imposed by any competent court of law or tribunal in Nigeria. Obviously, this is not what the Petitioners are complaining about. However, 137(D) goes further to say “or a sentence of imprisonment or fine for ANY offence involving dishonesty or fraud (BY WHATEVER NAME CALLED) or for any other offence, imposed on him (the candidate) by any court or tribunal….”

The issue for us lawyers here is, what Court was the constitution referring to? Remember in the first part of (D), the constitution said, “under a death sentence imposed by any competent court of law or tribunal in Nigeria”. It was specific, NIGERIA. In other words, if a candidate is under a death sentence imposed by any competent court of law not in Nigeria, he/she would be allowed to run for office.

Then the same paragraph (D) goes on to talk about other offences like “dishonesty or fraud (by whatever name called)” but does not attach “Nigeria” to the Court. Does this then mean that unlike the first part, it can be any competent Court?

Let me give you tell you a trick. In law, when interpreting a statue or law, there is a Latin expression which is “expression unius est exclusion alterius” meaning “the inclusion of the one is the exclusion of the other”. The inclusion of the country “Nigeria” in the first part of paragraph (D) might be interpreted as the exclusion of “Courts outside Nigeria”.

What am I trying to say? Nothing really. I am just wondering how our Constitution can be this inconsistent. If the country “Nigeria” was not mentioned at all, then the word “Court” would be interpreted as just “Court”, which would mean any competent court anywhere in the world. Now that “Nigeria” was included in the first part, but not included in the second part of the same paragraph, does it mean that the “Courts and Tribunals” referred to in the second part of paragraph (D) are restricted to Courts in Nigeria? That is for the Supreme Court to decide.

Imagine the Justices of the Supreme Court telling Nigerians and the world that “although an individual is convicted by a competent Court of an offence, he is still qualified to run for the office of the President of Nigeria, because, the said individual was not convicted by a Court in NIGERIA”. Not that my feelings matter but I think that such an interpretation would put my Country on a bad spot.  Because, it would mean that when a Nigerian is convicted for an offence outside Nigeria, such an individual can return after serving his/her jail term and be eligible to run for the office of President of Nigeria.

If, however the Supreme Court’s interpretation goes the other way, that is, that the word “Court” in section 137 (D) includes any Court in the world, what then is the implication of section 137(E)? Section 137(E) says that the candidate would be disqualified only when the candidate was convicted and sentenced for an offence involving dishonesty within a period of less than 10 years before the date of the Election.  This is clear enough. The alleged offence and conviction of the 2^nd Respondent was in the year 1993. Exactly!!!