Essay
By Chief Mike Ozekhome, SAN.
INTRODUCTION
With the cacophony of voices emanating from INEC, which appears to be having some internal ego and superiority contest between the Headquarters and Resident Electoral Commissioners (RECs), Nigerians wait with baited animation as to how it will all end.
But, it appears to me that INEC is striving very hard to self-immolate and self-destruct. I plead with it to retrace its steps immediately.
CAN THERE BE MORE THAN ONE PRIMARY ELECTION FOR THE SAME POSITION?
Section 29(1) of the Electoral Act, 2022, gives us a clue to the effect that a political party can conduct more than one primary for an election. For ease of reference, Section 29 (1) of the Electoral Act provides:
“Every political party shall, not later than 180 days before the date appointed for a general election under this Act, submit to the Commission, in the prescribed Forms, the list of the candidates the party proposes to sponsor at the elections, who must have emerged from valid primaries conducted by the political party.” (Emphasis added).
There are three key phrases in the section cited above. They are “valid primaries,” “list of candidates”, and the “candidates the party proposes to sponsor.”
The phrase, “candidates the party proposes to sponsor at the elections’’ evinces an intention on the part of a political party to have a “list of candidates” that emerge from “valid primaries”.
The deadline for the actualisation of this intention is 180 days before the conduct of the general election.
It must be borne in mind that the organisation of primaries is the business of the political party.
INEC is however the sole umpire. Once the political party gives notice of party primaries to INEC, INEC is legally obligated to honour the invitation. INEC is not an aspirant for the election and cannot therefore cry more than the bereaved.
The Electoral Act in Section 84(14) gives any aspirant who complains that any provisions of the Electoral Act and the guidelines of the political party have not been complied with in the selection and nomination of a candidate the right to approach the Federal High Court for redress.
THE POWERS OF INEC TO DISQUALIFY A CANDIDATE THAT EMERGES FROM AN INVALID PRIMARY OR NO PRIMARY AT ALL.
No express provision in the 2010 Electoral Act (as amended) gave INEC that power to reject or disqualify a candidate that emerged from an invalid primary.
The Electoral Act, 2022 has now given INEC such power in no uncertain terms. Section 84 (13) therefore is clear and unambiguous as regards the powers of INEC to reject the candidate of any party that did not pass through the proper channel to emerge as a candidate.
For the avoidance of doubt, it provides thus: “Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue.”
WHY DOES INEC FIGHT RECKLESSLY TO BE NECKLESS?
There are three types of primary elections recognized in section 84(2) of Electoral Act. They are direct, indirect and consensus primaries.
In direct primaries, all registered members of the party shall vote for the aspirants of their choice at the designated venue for the elections.
The disadvantage of this mode of election is that it is quite expensive and time consuming.
Adopting it however gives every member of the party the opportunity to partake in the election process, thus a sense of belonging.
In indirect primaries, elected delegates cast their votes for the aspirants of their choice. The National Executive Committee of the party shall designate the centre/venue and date for the election.
The Electoral Act is silent on the issue of time for the primaries. However, it is believed that the NEC of the party will usually specify the time for the election and communicate same to
INEC.
Consensus candidacy requires the written consent of all the aspirants indicating their voluntary withdrawal from the primary in support of the consensus candidate. All these three modes of primaries are valid.
A political party can adopt any of them. However, the catch is that failure or neglect to comply with the provisions of Section 84(13) cited above is that the candidate that emerges from such invalid primary shall not be included by INEC in the election for the particular position in issue.
This section, unlike the previous provisions of the Electoral Act, thus gives INEC the express powers to reject the candidate of any political party that fails to comply with the provisions of the Electoral Act.
INEC could however, not disqualify candidates under the 2010 Electoral Act. The power of INEC to screen and reject the candidate of a political party for failure to comply with the Act has however always been recognized by the courts, even where the Electoral Act did not expressly provide for it.
The courts had reasoned that the provisions of the Constitution empowering INEC to regulate, observe and supervise elections in Nigeria would be in vain if INEC cannot, in exercise of that that power, reject a candidate who has not met the requirements of the Constitution.
The case of INEC v. ACTION CONGRESS & ANOR (2007) LPELR-9028, where the Court of Appeal as follows, is apposite here: “See Adisa v. Oyinwola (2000) 10 NWLR (Pt. 674) 116, See also section 32(1) (2) (3) (4) (5) and (6) of the 2010 Electoral Act, as amended. See also para. 15 of the Third Schedule and section 137(1) of the 1999 Constitution…
What is in contention is whether the appellant, the body charged with the power to organise, undertake, and supervise all elections to the office of President, Vice President, etc, as well as Carry out such other functions as may be conferred upon it by an Act of the National Assembly pursuance of Paragraph 15 of the Third Schedule can ensure the observance of the provisions of Section 137(1) of the Constitution? It is the view of the learned senior counsel for appellant that it could.
There is merit in the submission of the learned senior counsel for appellant since the maker of the Constitution would not make these provisions for the fun of it.
I am of the firm view that if the appellant decided to close its eyes to the infraction of the provisions of the Constitution, it would be tantamount to abandoning the heavy responsibility placed on it by the provisions of the Constitution to wit to organise, undertake and supervise the conduct of a credible election.
Apart from this constitutional power it is inherent in Section 32, particularly Subsections (1) and (2) of the Electoral Act that the appellant has a primary duty to ensure compliance with the provisions of the Constitution.
It will be a mere circus show for the Commission to be expected to go to Court first to seek a declaration before treating the information supplied to it.?
The submission of the learned senior counsel for cross-appellants that screening of candidates is exclusive responsibility of the political parties in view of his reliance on the case of Ajadi v. Ajibola (supra), a Court of Appeal decision which upheld the light of the appellant to screen candidates, seriously, undermine his position.
For the avoidance of any doubt, having regard to the clear provisions of the Constitution
and the Electoral Act discussed above, it is my considered view that the appellant has the power and authority not only to screen candidates sent to it by political parties, but
to also remove the name of any candidate that failed to meet the criteria set out by the Constitution without having to go to Court.”
In the above case the court recognized the role of the INEC as the Umpire-General of all elections.
The court also recognized the fact that INEC is the one saddled with the responsibility to enforce the provisions of the Constitution relating to qualification for an election.
Thus, if INEC were merely to observe and not reject a candidate that has failed to meet the
constitutional requirement for qualification for an election, it would have meant that the provisions of the Constitution and the powers conferred on INEC are in vain.
The above case is quite significant because it was decided at a time the powers of INEC to disqualify a candidate were not made so expressly stated in the Electoral Act.
Now, such powers have been expressly donated to INEC in section 84(13) of the Electoral Act, 2022, to reject a candidate that emerges from an invalid primary. In particular, INEC is now empowered in section 84(13) to exclude such candidate from the list of candidates in the election.
INEC can now declare a candidate unqualified for an election, and expunge his name.
INEC’S EXPECTED ROLE
What is now expected of INEC under the new dispensation is to closely monitor the primaries of the political parties and ensure that only candidates that emerge from a validly conducted primary are accepted by them as the candidate of the political party in question.
There is thus no room for the emergence of a candidate who has not participated in a party
primary as the candidate of the party in an election.
The close monitoring of primaries is usually achieved by INEC by sending a team of monitors
across the 36 States of the Federation and the FCT, to monitor the party primaries nationwide.
Speaking on how the INEC monitors party primaries, INEC’s spokes-person, Mr. Festus Okoye, explained how INEC monitors party primaries. According to him, “There is supposed to be a team from the Election and Party Monitoring (EPM) Department from the
headquarters that will go to the State, but the team will report to the REC who will head them because he is the most senior officer.
Only a team monitors party primaries, he said. “There’s only one team from the commission. We don’t make any distinction between the team from the headquarters and the team from the state,” Mr. Okoye added.
“For instance, in a governorship primary, we send an assistant director or deputy director or even a director from the INEC headquarters. The director will report to the REC who is the most senior officer in that particular state and the REC will lead the team that will go and monitor the governorship primary or senatorial primary of a particular political party.”
At the end of the monitoring exercise, the officers of INEC monitors are expected to submit a report of that exercise to the INEC headquarters.
Where the name of a candidate is submitted to INEC by a political party, it behooves on INEC to check the names submitted to it by the political parties and ensure that the names are the same with the names contained in the various reports of its State offices as the winners of the said primaries.
If they are not the same persons that emerged for the primaries, the INEC should exercise its power in section 84(13) of the Electoral Act, 2022 to reject the names. INEC undoubtedly has the power to do so.
That was what it did in Zamfara State when its power was not so express, where it declared that the APC had no candidate in the 2019 governorship election in Zamfara State because no valid primary was conducted by the APC.
In recognition of the powers of INEC to regulate the operations of political parties by taking decisions (including rejection of candidates), section 285 (14 C) of the 1999 Constitution grants political parties the right to challenge “… the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election….”
Thus, under the Constitution and the 2022 Act, INEC has undoubted powers to reject candidates that did not emerge from primary. In OMAJALI v. DAVID & ORS (2019) LPELR-49381, the Supreme Court held as follows: “In view of Section 87 of the Electoral Act, 2010, as amended; I do not think it is correct to state or submit, in general terms, that the choice of who the political party’s candidate is, is not justifiable.
In a way, it is. When the choice of the candidate of a political party is done in flagrant disregard or violation of the provisions of the Electoral Act, the party Constitution and the Party Guidelines for the nomination of candidates for general elections, a dispute therefrom is justifiable.”
What the apex Court is saying is that case that the right of the political party to select its own candidate for an election is not absolute.
The selection of the candidate must be through a valid primary. Where the candidate did not so emerge, the INEC is given the power to reject the candidate.
A.I
Tags: Chief Mike Ozekhome INEC Mr. Festus Okoye
