ON Thursday, December 5th last year, the Federal High Court, Ikoyi sentenced a serving Senator and former Governor of Abia State, Orji Uzor Kalu to 12 years jail term.

The verdict came 12 years after the legal tussle between the Economic and Financial Crimes Commission (EFCC) and the convict. He was later condemned to have fraudulently diverted N7.65 billion state funds for personal use.

But findings by The ICIR revealed that this trend would persist show that the All Progressive Congress (APC) Senator representing Abia North will continue to represent his constituent and collect salaries, even while in prison until the Nigerian Senate declares Kalu’s seat vacant.

Kalu won the senatorial seat during the 2019 general election under the platform of the APC with 30,580 votes to beat his rival, Senator Mao Ohuabunwa of the Peoples’ Democratic Party (PDP) who had 21, 940 votes.

But with the recent development, the former governor’s constituent is already demanding for a new representative. They had written a petition to the Independent National Electoral Commission (INEC) calling for a by-election.

However, this may be a long, fruitless effort as INEC is unilaterally impeded to hold a by-election.

The aggrieved persons, citing Section 66 (1) (C) and 68 (1) (b) of the 1999 constitution (as amended), claimed they have been marginalised, as Kalu’s misfortune should not impede their fair representation at the nation’s parliament.

“No person shall be qualified for election into the Senate or House of Representatives if he is under a sentence of death imposed on him by any competent court or tribunal in Nigeria or a sentence of imprisonment of fine for an offense involving dishonesty and fraud,” the petitioners quoted in their complaint to INEC.

“Kalu, the incumbent senator from the 5th of December 2019, being the date he was convicted of fraud and sent to prison, that was the same date he vacated the seat. For that reason, you (INEC) have the duty to fix a date for a by-election to fill the vacated seat,” they argued in a report by Daily Trust.

What the law says

A study of the Electoral Act (2010) shows that the term by-election only appears thrice in the electoral framework – Section 10 (5) Continuous registration, Section 30 (3) which dwells on the notice of election and Section 108 (2), this focus on the date and Area Council Elections as well as the method of voting.

No provision in the 2019 electoral guideline mentioned any term relating to a by-election.

But Section 30 (3) which contextually aligns with the controversial issue states that “In the case of a by-election, the commission shall, not later than 14 days before the date appointed for the election, publish a notice stating the date of the election.”

No provision in the law clearly affirms the liberty of INEC to literarily hold a by-election.

Incidentally, a similar demand was made by the constituent of Joshua Dariye, former Governor of Plateau State who was jailed on 12th June 2018 for 14 years by Justice Adebukola Banjoko, of the Federal Capital Territory (FCT) High Court, Gudu.

He had committed a 23-count charge bordering on abuse of office as a State governor in 2007. He stole over N1 billion.

But despite these facts, about 10 months after, Dariye still maintains his seat in the Senate.

In April, last year, Festus Okoye, INEC Chairman, Information and Voter Education Department eventually came out to clear the air after so many agitations.

Forget about by-election until Senate decides, says INEC

Rotimi Lawrence, INEC Spokesperson was surprised when he was intimated about the demand for by-election by Kalu’s constituent.

“The constituent is calling for a by-election?” he queried.

However, he said it would be inappropriate and illegal for the electoral umpire to conduct a by-election without permission of the National Assembly (NASS), with particular reference to the Senate.

As such, he noted that there is currently no vacancy on Kalu’s position.

“There is no vacancy. The Electoral Act states very clearly the steps that should be taken to declare a vacancy for such seat,” Lawrence said.

“This is a serving senator and the Senate President has not written to us there is a vacancy in that senatorial zone. So, there is no way we can conduct an election there where we have not received any notice from the senate president, telling us there is a vacancy there.

“We really don’t know what the constituent is talking about, telling us to conduct this and that. That is not the way we conduct an election. We conduct elections based on extant laws.”

Asked, if the Senate President decides not to issue any notice, declaring the seat vacant, then there won’t be any by-election? Lawrence responded, “Of course, absolutely,” affirming that, “without a declaration of vacancy, officially sent to the commission by the Senate President, no by-election would be conducted.”

Regarding the likely cost of the by-election, he declined to make comment but advised such discussion could come up after the Senate’s decision.

“Let not put the cart before the horse,” he said.

Uncertainty in the Senate

It has been over 40 days since Kalu was sent to prison, but the Nigerian Senate has remained silent on his status as a convict.

The ICIR, however, reached out to Nurudeen Abdallah, one of the media aides to the Senate President. He terminated the calls but after repeated efforts, he responded and referred the reporter to Ola Awoniyi, Special Assistant on Media to the SP.

Similarly, Awoniyi responded in a text message to The ICIR, saying: “I really don’t have any briefing on the issue which you mentioned. So, I can’t comment on it.”

Olugbenga ADANIKIN

Olugbenga heads the Investigations Desk at The ICIR. Do you have a scoop? Shoot him an email at oadanikin@icirnigeria.org. Twitter Handle: @OluAdanikin