Under the Constitution upon which MKO Abiola contested the presidential election, for a person to be declared a Nigerian president, the candidate must have won a simple majority of votes in two third states of the federation and the person must have taken oath contained in one of the schedules of the Constitution.
After the June 12 election was held, a High court in Nigeria ordered the Electoral Commission headed by Professor Humphrey Nwosu not to go ahead to publish the result.
Constitutionally, it is the Electoral commission that has the powers to declare election results. No other person can.
So if the Court ordered the Electoral commission not to declare the result, and the Electoral commission complied with the order and did not declare the result, can Abiola be said to have won the election?
Law is not morality. Law is law.
Although factually, Abiola was winning the election but we cannot rely on the result declared by any other person other than the Electoral commission to determine who won the election.
What Abiola and his team would have done is to appeal the order of the High court, and get an appellate court to set aside that order. Their refusal to appeal against the order and set it aside means that the High court order stopping the declaration of the result (an order made at the prompting of an association called Association for Better Nigeria headed by Chief Francis Arthur Nzeribe,) stands.
It is a trite principle of law that a court is permitted to err and if a court makes an order per incuriam (in error), that order stands and is regarded as valid unless set aside by a superior court of competent jurisdiction.
Since the result was not announced by the Electoral commission in compliance to a court order, the legal implication is that there is no result.
Yes, there is no result.
This brings us to the second limb of this discourse as to whether the Senate can order INEC to declare the June 12 result.
You will recall that yesterday, the Senate ordered INEC to declare the June 12 result.
Although this current INEC inherits the acts of the former Federal Electoral Commission, the Senate cannot order the INEC to declare that result.
This is because the Senate would be clearly invading into the powers of the judiciary by making that order. The principle of Separation of power makes the Executive, Judiciary and legislature independent of each other and each has clear functions. When there is a dispute between the arms of government or between the govt and and individuals, the judiciary has the constitutional duty to settle it.
When the June 12 political imbroglio was on , some persons went to court to stop the election and the Court, in it’s wisdom (whether rightly or wrongly), stopped the election. That order has not been set aside.
So it will be clearly illegal for the Senate to make a resolution asking the INEC to declare a result which was outlawed by the Judiciary.
This offends section 6(6) of the 1999 Nigerian Constitution which gives the judiciary the powers to determine any dispute arising between Nigerians or any arm of govt.
The Constitution is the supreme law in Nigeria and the Senate cannot, vide a resolution, controvert clear sections of the Constitution.
The failure of MKO Abiola and the Social Democratic party to appeal against the order of the Court since that time means that they have lost their right.
The best that can be done is for the Social Democratic Party or any other interested party to appeal against that judgment, ask for an extension of time and get an order setting aside the order of the High court that stopped the declaration of the result.
This would even not give MKO Abiola the power to be addressed as the president because he is dead and a dead person cannot swear the oath of allegiance or presidential oath that would make him president. The best that can be done is for Babagana Kingibe to be sworn in as president if the Court sets aside the order.
So you see that any attempt to declare MKO Abiola president, any attempt by the Senate to order INEC to release the results without getting the court order set aside, any attempt to confer on Abiola or Kingibe the rights of former presidents and vice president, is an attempt at illegality, is null and void ab initio.
The Senate and the president should also know that resurrecting this Abiola issue will not do them any good because the court can also declare Babagana Kingibe the president and that would create more anarchy and problems in the country.
