DISQUALIFICATION: Gadanya, Waru, Others React, as ELCOM Calls for New Nominations

Kano NBA, Election 2020, New Date, Court Vacates Order, Contestant Withdraws

The two disqualified chairmanship contestants of the Kano branch of the Nigerian Bar Association (NBA), have reacted to the insistence of the branch’s electoral committee (ELCOM) that they are not eligible to contest the year 2020 election.

Both A. S. Gadanya and I. G. Waru, (contesting to be chairmen) alongside S. M. Tahir (contesting to be secretary), and Kawu (contesting to be provost) were halted by the ELCOM for not satisfying some constitutional requirements.

The two chairmanship contestants swiftly wrote to the ELCOM requesting for review of their disqualification, but the electoral committee was not swayed by their arguments. Other disqualified candidates also wrote and met with the same stiff resistance.

The ELCOM on Saturday finally affirmed the disqualification of all the four and called for new nominations.

Judicial Sketch spoke with the two chairmanship candidates as well as the former branch secretary and legal adviser, Sagir Sulaiman Gezawa and Usman Umar Fari respectively.

A.S. Gadanya said “It is true that I received my letter from Kano ELCOM reiterating their position that they have disqualified my candidature. You are aware that I wrote an application for the review of their earlier decision where they said that virtue of section 6(3) of the uniform bye-law, I have served two tenures as an officer of the branch.

A. S. Gadanya, DISQUALIFICATION, Gadanya, Waru, Others React, Kano ELCOM, Calls for New Nominations
A. S. Gadanya said he intends to exhaust all
internal mechanisms first

“But I told them categorically that the applicable bye-law is that of 2015, which is the one that is applicable, to the exclusion of any other bye-law of any branch. I also told them that by virtue of the same uniform bye-law which they are relying on to disqualify me, the position of the NEC representative which I held last is not that of an elected officer of the branch. Now, they disagreed with me that when I served as a NEC rep, I was an elected officer and I was elected under the old bye-law of the branch, while the one in force is the one that does not recognize the NEC rep as a branch officer. Therefore, they are going to apply the old branch bye-law in my case, and then use the provision of the uniform bye-law to disqualify me.

“I sort a clarification from the general secretary of the NBA who responded to my letter and copied the chairman of the Kano ELCOM. He wrote that the NEC rep is not an elected branch officer. So, my position is that the last time I served was 2014, and therefore I am qualified to contest for the office I am vying because I have had a break of almost six years. That was the position I have maintained.

“I told them also that the constitution of NBA cannot have retrospective effect. But despite all these explanations that I have canvassed, they closed their eyes to my presentations and reiterated their earlier position.

“In view of the above, our position is that we have not exhausted the internal mechanisms in the NBA. You know, the president has just inaugurated appeal panels for branch elections of 2020.

“I have today submitted my petition to the national body for further transmission to the appeal panel for the northern branches. I will, exercise patience to hear what that body would say on the issue. I am so sure that the national panel will be fair to everybody, and they will not close their eyes to all the documents that would be presented to them” Gadanya explained in detail.

I. G. Waru, DISQUALIFICATION, Gadanya, Waru, Others React, Kano ELCOM, Calls for New Nominations
I. G. Waru said his contest was a movement, and members must consult before any action could be taken

On his part I. G. Waru said “It is unfortunate that we received a letter from Kano ELCOM still disqualifying me from the race despite all the facts and laws we cited and presented to them so that they may reverse their earlier decision.

“It is baffling that they did not see reason to revise their earlier position. But I must tell you that this is not about me, I.G. Waru alone. It is a movement, a movement for change, a movement focusing on transformation, development and capacity building for our branch. So, I. G. Waru cannot single-handedly take a decision on what to do next, because the cause I am representing is beyond me as a person.

“We are making consultations among all members of our group. Meetings are going to be held as from tomorrow, and the outcome of such meetings will determine the next line of action to be taken by the group.

“Our position will be made known to you after we must have taken a stand at the group level. A majority decision is what we shall be putting forward. It is a democracy on our side, and the democratic tenet of popular opinion is what we will adopt. There are no two ways about it”, Waru offered.

Sagir Sulaiman Gezawa, DISQUALIFICATION, Gadanya, Waru, Others React, Kano ELCOM, Calls for New Nominations
S.S. Gezawa was not comfortable with ELCOM’s stance

Former branch secretary, Sagir Suleiman Gezawa explained that both candidates for the chairmanship position should not have been disqualified.

“I’ve had the privilege of seeing of the disqualification letters. The ELCOM first disqualified the candidates based on the reason that both of them have held other elective positions for two terms in less than 5 years which warrants them to have a break of at least five years in line with paragraph 6(2) of the Uniform Bye-Law for NBA Branches.

“Both candidates applied for review and in my view the ELCOM wrongly failed to review its decision relying on paragraph 18(5) of the Uniform Bye-Law which says the decision of the ELCOM is final.

“This in my view is a very wrong understanding of the Bye-Law because if the ELCOM had averted its mind to paragraph 17(2) of the Uniform Bye-Law, it would have seen that it is empowered to review its decision disqualifying the nomination of any candidate as the said paragraph provides thus:

“’The Election Committee shall scrutinise all nominations to ensure that they comply with the provisions herein and shall notify candidates who fail to qualify of their disqualification within seven (7) days of any decision to such effect; provided that such a disqualified candidate may apply to the Committee for a review of the decision within seven (7) days.’”

“So in my view, both the chairmanship candidates and any other candidate that feels wrongly disqualified can now appeal to the Northern Zone of NBA 2020 Branch Elections: Appeals Panel of the Nigerian Bar Association set up by the President of the Bar.

“Both candidates in my view have a very good and valid reasons to have the decision of the ELCOM reversed as honestly the ELCOM with all due respect to them did not demonstrate good appreciation of the various provisions of the Uniform Bye Law, especially as regards who a Branch Officer, and whether the 2015 constitution will have retrospective effect or the ELCOM can apply both constitutions for different reasons”, Gezawa submitted.

But former branch legal adviser, Usman Umar Fari took a peek into what he called the “current position of the law.”

He said “The usual argument canvassed by some was that the provision of the NBA constitution should not be applied retrospectively against the contestants.

Usman Umar Fari, DISQUALIFICATION, Gadanya, Waru, Others React, Kano ELCOM, Calls for New Nominations
U. U. Fari said most of the disqualified contestants are looking at their disqualification from the prism of the old position

“This is a wrong view. The proponents of the above cited view appeared to be out of touch with the present legal reality. They failed to distinguish between penal and adjectival laws. Laws regulating the conduct of an election, qualification or disqualification of candidate and any other matter related thereto are adjectival. The current position of the Law is that such legislations can apply retrospectively. Recently, the Supreme Court struck out many pre-election matters that were instituted before be the amendment of the 1999 constitution particularly the 4th alteration.

“In those cases, similar arguments were made that appeals that predated the alteration should not be struck out. The apex court unanimously rejected the arguments. In the case of KUSAMOTU v. APC & ORS (2019) LPELR 46802, the Supreme Court held as follows:

“’On the 4th of June 2018, before the instant appeal was heard on the 21/11/18 and judgment reserved for 15/02/19, the Constitution of the Federal Republic of Nigeria 1999 (Fourth Alteration, No 21) Act 2017 on being assented to by the President, further amended Section 285 of the Constitution by specifically providing in Subsection 12 thereof thus:-

“’(12) An appeal from a decision of a Court in a pre-election matter shall be heard and disposed of within 60 days from the date of filing of the appeal……

“’Certainly, appellant’s cause of action predates the alteration. There is undeniably this argument that the alteration should not commence earlier than the time of its enactment. Since appellant’s cause of action predates the enactment of the sub-section the subsection, it is part of the argument, should not be given retrospective effect by extending its scope to matters that had occurred earlier to its coming into being.

“’Certainly, this is a very legitimate concern. Courts frown on retrospective legislation which they consider to particularly impinge upon the concept of fair hearing. Being dutifully aware of the doctrine of separation of powers, however, the Courts have always recognised the overriding constitutional function of the legislature to make and amend laws including their revocation. The Courts limit themselves to the task of interpreting the laws, amendments or revocation to give effect to the intention of the legislature. Thus, where the intention is clear and ambiguous, the Courts have always interpreted the provision of the legislation to reflect such intention

“’In particularly Ojokolobo V. Alamu (supra) this Court has held that Subsection 12 to Section 285 which stipulates time frame within which proceedings may be taken and concluded and couched in such clear and unambiguous terms must be so construed. The provision is adjectival and must operate as such notwithstanding the retrospective effect it may have on accrued rights of the party such as the appellant herein. See also the recent decision of this Court restating and abiding by the principle in the Court’s recent decision in Appeal No. SC. 307/2018 between Obayemi Toyin V. Arogundade Samuel Musa and 4 ors delivered on the 18th January 2019.

“’It is for the foregoing that I find the instant appeal filed on 23/5/2018, two hundred (200) days more than the sixty (60) days Section 285 (12) allows for it to be heard and determined to be statute-barred. This Court lacks the jurisdiction of hearing and determining the appeal. It is accordingly hereby struck out”

Fari added that “Secondly, failure to apply the constitution retrospectively will render its provision meaningless and the intendment of the constitution will be defeated. The wisdom and logic behind the provision is to sanitize the politics of the NBA from being taken over or monopolized by career politicians the way it happens in ordinary party politics. To achieve this novel aim and objective, the constitution must be applied retrospectively which is the aim of the drafters. Otherwise, the provision will not come into effect and will not be seen to be working until the year 2025 and this will, with no doubt whatsoever, defeat the constitution.

“Also, no matter what authorities anyone may have given to argue this retrospective angle, the case of KUSAMOTU (supra) is the current position of the law in Nigeria today, because where there are two conflicting decisions of the Supreme Court, the later in time shall prevail”, he concluded.

Tahir, who was vying to be the branch’s secretary, however said ‘my intention was to serve, and my colleagues endorsed me wholeheartedly. If this disqualification stands, I should not be bothered because I have seen appreciable love and support been extended to me by my colleagues. I was supposed to be elected without opposition, so I am elated by the level of acceptance I got, and I thank all members of the Kano branch of the NBA.”







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