A LEGAL DISQUISITION OF THE QUANDARY OF AN IMPRISONED ELECTORAL WINNER: A CASE OF ENUGU SOUTH 1 STATE CONSTITUENCY SEAT

  BY JOHN COLLINS NWOBODO (Esq)

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*1.0   Introduction*

As a backstory, the Nigerian electoral umpire, the Independent National Electoral Commission (INEC) declared Hon. Bright Emeka Ngene, the candidate of Labour Party, winner of the Enugu South 1 State Constituency election held on 18th March, 2023. Hon. Bright Ngene alongside other members-elect was inaugurated as a member of the 8th Enugu State House of Assembly on 13th June, 2023.  The leading opponent in the election, Hon. Samuel Okechukwu Ngene, candidate of the People’s Democratic Party, challenged Bright’s election at the National and State House of Assembly Election Tribunal which nullified the election on 13th September, 2023 ordering a re-run in 8 polling units in Uwani West Ward. On appeal, the Court of Appeal affirmed the judgment of the Tribunal. The Court as the final appellate court in respect of Legislative Houses petition ordered a re-run election.

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The re-run election scheduled on 3rd February, 2024 did not hold due to disruptions. Two subsequent attempts on 17th February, 2024 and 8th June, 2024 proved abortive. After the initial failed re-run attempts, Hon. Bright Ngene, on 28th June, 2024 was convicted by Magistrate E.D. Onwu of the Enugu South Magisterial District over a case of criminal conversion of N15 million belonging to Akwuke Community and sentenced him to 7 years imprisonment. The case emanated from Hon. Bright’s Akwuke Community in Enugu South Local Government Area concerning his stewardship as an officer of his Town Union in 2017 about six years before the 2023 general election. The hurried trial, conviction and sentencing of Hon. Bright were perceived in some quarters as politically motivated. The trial was equally criticized due to lack of procedural fairness including perceived hanky-panky in the handling of his appeal against conviction which has protracted.

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After some staccato or prolonged delay, INEC on 16th August, 2025 conducted the re-run election alongside the 16 by-elections across 12 states. From information curated from the INEC Form EC 40G (PU), that is, incident form, INEC indicated disruption as reason election did not hold.  Nevertheless, INEC on 18th August, 2025 in press statement signed by Sam Olumekun mni, the National Commissioner and Chairman Information and Voter Education Committee stated that Ngene Bright Emeka of the Labour Party was declared winner.

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Although, Bright has been declared the winner, he is unavoidably unavailable to assume or resume his legislative duties in the Enugu State House of Assembly thus he and his constituency are now victims.

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His opponent and the opponent’s sponsoring political party, PDP, raised the issue whether a convicted criminal can contest as well as claiming to be entitled to the seat.

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This article aims to explore the conundrum and quandary from the binoculars of law with a view to unpacking the issues, revealing gaps in the legal frameworks, and suggesting way forward.

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*2.0.  The Eligibility Question*

In an article authored by Godwin Udeh entitled “Enugu South Constituency Bye-Election: Can a Convicted Criminal Contest?” published on 15th August, 2025 on dailynewsngr.com.ng queried thus: “But the unavoidable question now generating intense controversy over the very propriety of holding the election is: Can a convicted criminal, sentenced for an offence involving dishonesty and fraud, lawfully stand as a candidate in a Nigerian election?” Answering the question in the negative, the writer posited that section 107 (1)(d) of the 1999 Constitution supports the position that a person convicted and sentenced for an offence involving dishonesty or fraud, within ten years before the election, unless he has been granted a pardon is disqualified from contesting election in Nigeria.

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In a similar vein, PDP in a petition to INEC posited that the criminal offence for which Mr. Bright Emeka Ngene was convicted and duly imprisoned borders on dishonesty and fraud, which directly violated the provisions of section 107(1)(d) of the 1999 Constitution and inviolably disqualifies him from participating in any election, including this State Assembly re-run. They requested INEC to declare their candidate, Hon. Sam Ngene, the winner. They insisted that there is no legal basis to conduct an election featuring a constitutionally disqualified candidate as that would amount to, not only waste public resources but also invite post-election litigation that could leave the constituency unrepresented for even longer.

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The first mentioned writer and the PDP appear to have deliberately chosen aspects of the provision of section 107 (1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) that suits them. It is apparent from a holistic reading of section 107(1)(2) & (3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) applies where any of the disqualifying factors enumerated under the section was/were present before the conduct of the main election and even at that, its application would be effective only if the exception provided thereto is not utilized by the person whom it is sought to be enforced against. The grounds of disqualification in section 107(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) are as follows:

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(i)     voluntary acquisition of citizenship of another country

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(ii)    declaration of allegiance to another country

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(iii)    being adjudged a lunatic or declared to be of unsound mind

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(iv)   being under a sentence of death imposed by any competent court of law or tribunal in Nigeria

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(v)    being under a sentence of imprisonment for an offence involving dishonesty or fraud by whatever name called

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(vi)   being under a sentence of fine for an offence involving dishonesty or fraud by whatever name called

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(vi)   being under a sentence of imprisonment or fine for any other offence substituted by a competent authority

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(vii)   conviction and sentencing for an offence involving dishonesty within a period of less than 10 years before the date of an election to the House of Assembly

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(viii)  been found guilty of a contravention of the Code of Conduct within a period of less than 10 years before the date of an election to the House of Assembly

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(ix)    being an undischarged bankrupt

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(x)    failure to resign, withdraw or retire thirty days before the date of election, if employed in the public service of the Federation or of any State

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(xi)    being a member of any secret society

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(xii)   presentation of a forged certificate to the Independent National Electoral Commission

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From the motley assortment of disqualifying factors enumerated in subsection (1) of section 107 of the Constitution, the Constitution provided exception for 5 grounds namely: lunancy, unsoundness of mind, death sentence, imprisonment, bankruptcy to the effect that where an appeal is pending in any court of law in accordance with any law in force in Nigeria, those grounds cannot be invoked during the period beginning from the date when such appeal is lodged and ending on the date when the appeal is finally determined or the appeal lapses or is abandoned, whichever is earlier.

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The way section 107(2) of the Constitution is couched suggests that an appeal based on other grounds may not operate to suspend the invocation of the disqualifying ground(s). These disqualifying grounds whose force are not denuded by an appeal are (1) voluntary acquisition of citizenship of another country, (2) declaration of allegiance to another country, (3) being under a sentence of fine for an offence involving dishonesty or fraud by whatever name called, (4) being under a sentence of fine for any other offence substituted by a competent authority, (5) been found guilty of a contravention of the Code of Conduct within a period of less than 10 years before the date of an election to the House of Assembly, (6) failure to resign, withdraw or retire thirty days before the date of election, if employed in the public service of the Federation or of any State, (7)     being a member of any secret society, and (8) presentation of a forged certificate to the Independent National Electoral Commission.

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Section 107(1)(d) of the Constitution relied upon by the PDP as a basis for seeking the disqualification of the Labour Party candidate, Hon Bright is not applicable to the scenario. Section 107 (1)(d) provides: “No person shall be qualified for election to a House of Assembly if- within a period of less than 10 years before the date of an election to the House of Assembly, he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of a contravention of the Code of Conduct.”

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It should be acknowledged that the way section 107(1)(d) of the Constitution is couched renders its precise meaning obscure. The following query may arise:

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(1)    Does the paragraph operate in relation to a person who has served out his sentence? If the question is answered in the affirmative, then two more issues stubbornly stick out their heads, which are: would the calculation of the 10 years period be reckoned from the date of conviction and sentencing or from the date of completion of sentence?

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(2)    Does the paragraph operate instantly from conviction and sentencing? If it assumed that it operates instantly, the nature of sentencing would resolve whether an appeal can lie against the sentence such that where by the nature of the sentence an appeal can lie, then an appeal when lodged will operate in favour of the person whom the provision is sought to be enforced.

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However, a harmonious but comparative reading of the various paragraphs of subsection (1) of section 107 of the Constitution and particularly contrasting between paragraphs (c) and (d) gives a clear clue that each of the 2 paragraphs belongs to different scenarios. It is section 107(1)(c) that captures the scenario of this case and since the conviction and imprisonment of Hon. Bright is a subject of appeal which has not been finally determined or which has not lapsed or abandoned, he is not disqualified. Furthermore, section 107 of the Constitution did not contemplate a situation where the same grounds of disqualification provided therein could arise after an election has commenced.

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*3.0.  The Legal Quandary*

Two fact situations around the election and imprisonment of Hon. Bright created some intricate legal problems. The first has to do with the declaration and return of the imprisoned Hon Bright by INEC. The second has to do with the encumbrance created by the imprisonment to the enjoyment of the fruit of the election by the winner and the constituents.

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*a.  Legality of the declaration and return*

Both the Tribunal and the Court of Appeal had determined that if the votes from 8 affected polling units in Uwani West Ward, Enugu South Local Government Area is discounted, the total number of registered voters in the affected polling units would be more than the margin of win, that is, the number with which the winner leads in the election and ordered a re-run in the 8 polling units to determine the winner. The Polling Units are Uwani Secondary School Polling Units I, III & IV, and Robinson Street Primary School Polling Units I, II, III, IV & V.

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The electoral umpire INEC deployed personnel and materials but election was disrupted in all 8 polling units across two venues as recorded in Form EC 40G (PU). What this meant was that it was not practicable to observe the polling day step by step procedure to wit: accreditation, voting, sorting, counting, and announcement of results, signing and counter signing of result sheets (Form EC 8A). The declaration of a winner by INEC has been criticized by the candidate of the opposition PDP and the PDP. However, the declaration and return made by INEC in line with clause 100 of the Regulations and Guidelines for the Conduct of Elections 2022 is valid. Particularly clause 100 (ii) & (iii) provides:

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(ii)-   Where there is willful obstruction or resistance to the distribution of electoral materials or where there is resistance to the use of the BVAS or any electoral device deployed by the Commission, the affected Polling Units shall be credited with zero votes during collation and shall not count in the application of the Margin of Lead principle.

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(iii)-   Whenever zero votes are entered or elections are rescheduled, Collation and Returning Officers shall ensure that the number of voters in the affected Polling Units are accounted for in compiling their results in order to prevent discrepancies in the figures for registered voters in the Register of Voters and the figures as collated.

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The recent re-run on 16th August, 2025 was the fourth time the election was scheduled. Allowing disruption to afford an excuse for continued inconclusive election the fourth time would have amounted to acquiescence to the criminal manipulation of conscienceless politicians.

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*b.     Encumbrances constituted by the imprisonment of the member-elect*

As it were the imprisonment of the member-elect, Hon. Bright Ngene constituted encumbrance in some ways. These include unavailability to receive his certificate of return, unavailability to subscribe the oath of allegiance and the oath of membership prescribed in the Seventh Schedule to the Constitution, and unavailability to attend the sittings of the House of Assembly with the likely situation that he might be absent in the sittings of the House for a period amounting in the aggregate to more than default in one-third of the total number of days during which the House meets in any one year.

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(i)     Unavailability to receive certificate of return

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Section 72(1) of the Electoral Act, 2022 provides for the issuance of certificate of return to every candidate elected and returned in an election conducted under the Act. The certificate of return evidences the return of the candidate while the candidate in turn presents it, in the case of a legislative house, to the Presiding Officer of the House for swearing in.

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Unfortunately, the right of freedom of movement of the member-elect is under legal restraint and therefore unavailable to receive his certificate of return soon. The presentation of certificate of return to members elected on the 16th August, 2025 by-election and re-run election was scheduled for 22nd August, 2025. It is doubtful by the way section 72(1) of the Electoral Act, 2022 whether a certificate of return can be received through a proxy.

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(ii)    Unavailability to subscribe the oath of allegiance and the oath of membership

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A person elected to a House of Assembly has three indispensable requirements to fulfill before taking his seat in that House. These requirements are declaration of assets and liabilities, and subscribing to oaths of allegiance and membership. This is by virtue of section 94 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The requirement of declaration of assets and liabilities has been left out of discussion because the member-elect is presumed to have previously declared his assets and liabilities during the inauguration of the 8th Enugu State House of Assembly. Since assets declaration covers the period of commencement of tenure and end of tenure, the initial declaration would suffice for the duration of the 8th Assembly.

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The imprisonment of the member-elect has made it impossible for him to present himself before the Speaker of the Enugu State House of Assembly to subscribe the oaths of allegiance and membership.

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(iii)    Unavailability to attend the sittings of the House of Assembly

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Section 109 (1)(f) of the Constitution of the Federal Republic of Nigeria 1999 implicates a requirement of a minimum attendance to the sittings of the House of Assembly by its members. Going by the provision of the section, a member of a House of Assembly is prohibited from being absent from meetings of the House of Assembly for a period amounting in the aggregate to more than one-third of the total number of days during which the House meets in any one year. By section 104 of the Constitution, a House of Assembly is required to sit for a period of not less than 181 days in a year. Although, it may be argued that section 109 (1)(f) does not apply to a member-elect who had yet to take his seat in the House of Assembly.

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The cumulative effect of all the foregoing is that the good people of Enugu South 1 Constituency are without representation in the House of Assembly.

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*4.0.  Lacuna in Statutory and Constitutional Provisions*

Although section 109(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) avails a person imprisoned to contest an election to the House of Assembly while an appeal against imprisonment is pending, the section is silent on what would happen if the prisoner eventually wins in the election. There is no clue whether the prisoner should be released from custody to enable him enjoy his electoral mandate. But since no such provision is made, the utility of section 109 (2) of the Constitution is diminished.

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Unlike a President-Elect and a Governor-Elect, there is no provision equivalent to sections 136 (1) and 181 (1) of the Constitution regarding what should be done when a House of Assembly member-elect is for any reason whatsoever unable to be sworn in.

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It is logical to say that since by section 109 (2) of the Constitution a person imprisoned can contest election to the House of Assembly when an appeal has been lodged against the imprisonment, the Constitution indeed contemplated some relief or reprieve pending the final determination of the appeal or lapse or abandonment of the appeal. The lacuna lies in the silence of the Constitution to stipulate the nature or form of relief or reprieve to be granted to the prisoner where he wins the election. The Electoral Act is equally silent on this matter.

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*5.0.  Legal Options for the Release of the Member-Elect*

Section 109(2) of the Constitution offers strong legal basis for the argument that Hon. Bright Emeka Ngene is entitled to be released from custody to enable him take up his seat in the Enugu State House of Assembly. The section may be construed as recognition of the presumption of innocence when an appeal is pending. The section appears to create a special or sui generis regime in moderating the interaction between criminal justice and electoral law jurisprudence. However, there is no guide or clarity on how this provision can be activated. It seems that in the absence of clarity or guidelines on how to activate the release of an imprisoned winner of an election pursuant to section 109(2) of the Constitution, two approaches appear handy: bail pending appeal or exploring the option of prerogative of mercy either on application or the Governor’s own motion.

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*a.     Bail Pending Appeal*

While it is the law that bail pending appeal is not granted as a matter of course, however bail may be granted where the applicant demonstrates the existence of special or exceptional circumstances. The continued imprisonment of a winner of a House of Assembly Election who has a pending appeal against his conviction and imprisonment is not legally justifiable in light of section 109(2) of the Constitution. The fact of winning the election constituted an exceptional circumstance that should lead to the grant of bail pending appeal in favour of an election winner under imprisonment. The Courts have held that ill health may constitute an exceptional circumstance for admitting a convict to bail pending appeal. See Nwaoboshi v. FRN & Ors. (2023) LPELR-59974 (SC). An election victory won by a prisoner on the basis of a participation cognizable under the provision of the Constitution notwithstanding the impediment of imprisonment constituted a stronger exceptional circumstance.

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There have been 2 instances in the past in Nigeria where a candidate won election from prison. The first was time was in 2002 when Iyiola Omisore was arrested in connection with the gruesome murder of Chief Bola Ige, then Minister of Justice and the Attorney general of the Federation. While still undergoing trial he was elected as a Senator representing Osun East Senatorial District on the platform of the People’s Democratic Party after leaving the Alliance for Democracy (AD). He was released on bail on 30th May, 2003 by an Ibadan High Court. The second politician that won election from prison was former Governor of Abia Theodore Ahamefule Orji in 2007. He ran for the Governorship of Abia State on the platform of Progressive Peoples Alliance (PPA) and defeated Chief Onyema Ugochukwu of the People’s Democratic Party. After winning the Governorship election, he was granted bail and released from the Kirikiri Maximum Prison.

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Although the incarcerations of Omisore and Orji were not conviction-based but detention pending trial, it reveals the inclination of the courts to exercise leniency in considering bail for detainee winners of elections.

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*b.     Prerogative of Mercy*

Section 212(1) & (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) regulates the exercise of the power of prerogative of mercy by the Governor of a State and the Advisory Council on Prerogative of Mercy. Although this power is discretionary, the need to fulfill the intendment of section 109(2) of the Constitution makes it imperative for the Governor of Enugu State and the Advisory Council on Prerogative of Mercy to act without hesitation to grant clemency to Hon. Bright Ngene to enable him fulfill the mandate entrusted upon him by his constituents and without prejudice to his appeal against conviction. The determination of the appeal is important in the sense that if his appeal is upheld, his innocence would be restored and every stigma of conviction would be torn to shreds and completely obliterated. Clemency brings about relief from sentence or obliterates the consequences of conviction but does not restore innocence.

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The Attorney General of Enugu State as Chairman of the Advisory Council on Prerogative of Mercy as well as the Chief Law Officer of Enugu State should see to it that Hon. Bright Ngene is released from custody. Section 6 of the Advisory Council on Prerogative of Mercy Law, Cap. 8, Vol. 1, Revised Laws of Enugu State, 2004 provides:

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Where any person has been convicted of an offence, or sentenced to death or to a term of imprisonment by any court of law in Nigeria for any offence created by or under any law of a State the Chairman shall cause a written report of the case from the trial judge, together with such other information derived from the record of the case or elsewhere as the Chairman may require, to be taken into consideration at a meeting of the Council, and after obtaining the advice of the Council the Chairman shall cause the recommendations of the Council in relation to that person to be communicated to the Governor.

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Since by section 212(2) of the Constitution and section 5 of the Advisory Council on Prerogative of Mercy Law, Cap. 8, Vol. 1, Revised Laws of Enugu State, 2004, the exercise of the Governor’s power of prerogative of mercy requires consultation with the Advisory Council on Prerogative of Mercy, both the Governor and the Council should liaise without hesitation to extend clemency to Hon. Bright Ngene.

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*6.0.  Suggested Legislative Review to fill the Lacuna in Statutory and Constitutional Provisions*

Against the background of section 107 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) particularly subsection (2), it is suggested that the section should be amended to prescribe the modalities and procedures for securing the release of a convict candidate who won election from prison while his appeal is pending. The amendment should specify in unmistaken term that such convict candidate shall be released from prison pending the final outcome of his appeal or lapse of the appeal or abandonment thereof.

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It is suggested that the Constitution should provide a timeframe for the disposal of appeal involving a convict winner of an election and the legal consequences where conviction is upheld by the final appellate court.

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Section 72 of the Electoral Act, 2022 should be amended to include a provision that where a winner of an election is unable to, as a result of imprisonment, receive his certificate of return, the political party sponsoring the candidate should receive it on behalf of the winner.

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The Constitution should also be amended to introduce provisions equivalent to sections 136 (1) and 181 (1) of the Constitution in relation to legislative houses.

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*7.0.  Conclusion*

From the analysis and review of relevant legal frameworks, it is evident that the fact of conviction and imprisonment though a disqualifying ground impinging on eligibility is denuded or suspended when there is an appeal against the conviction nay imprisonment.

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The thesis of argument has been that since the Constitution did not bar a convicted prisoner from contesting an election, the consequential logic is that such a candidate where he wins the election and has a pending appeal in line with the dictate of section 107(2) of the Constitution is entitled to be released from prison to exercise his electoral mandate.

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In the context of the thesis, the Enugu State House of Assembly member-elect, Hon. Bright Emeka Ngene currently serving a 7-year prison sentence at the Correctional Centre is entitled to be released to enable him take up his seat in the 8th Enugu State House of Assembly.

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The absence of clarity or guideline on the how the release should be secured reveals a gap in the law. However, alternative approaches which would deliver the same outcome have been canvassed. The two most viable approaches are bail pending appeal and grant of clemency by the Governor in consultation with the Advisory Council on Prerogative of Mercy.

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