Nigeria: The Constitution, Electoral Act 2022, INEC and Next Year’s Polls (II)

From yesterday, this concludes the rejoinder countering the views by Kperogi, Falana and others on the position of INEC on recent party primaries

CLEARLY, Falana was speaking in support of his fellow lawyer, Mr. Mike Igini, whose second tenure ended this year as the REC for Akwa Ibom, and whose outspokenness on election matters throughout his two tenures seems to have endeared him to the Nigerian media.

He has, in recent times, been particularly scathing in his well-publicised remarks about APC’s nomination of Senator Godswill Akpabio, two-term governor of the State and one-term senator, as its candidate for Akwa Ibom North-West Senatorial District following a reconduct of the primary after he lost out in the party’s presidential primary. Akpabio, the former REC has said in effect, was a pretender to the party’s ticket rightly won, in his view, by a retired Deputy Inspector General of Police, Udom Udo Ekpoudom, based on his own report of the party’s primary he personally monitored.

If I was wrong and Falana was right about INEC being powerless to reject names of candidates that, in its view, were not validly nominated, he couldn’t have been more wrong in his contentions that it is illegal to contest in more than one primary in one election and that RECs are members of INEC. To begin with his position that one cannot contest in more than one primary in one election.

It seems to me that, the perceptive and insightful lawyer that he is, he has mistakenly equated aspiration with candidature. In this he seems to have been joined by Vanguard which said in its editorial of August 3 that violators of the law against double nomination should be prosecuted, after describing some alleged violators in both APC and PDP, but without naming them.

“We,” the newspaper said, “call on INEC not to allow these violators to escape with mere disqualifications. That would be a mere slap on the wrist.” Rather, it said: “INEC should honour the Electoral Act by arraigning these violators.” Vanguard, as I said, named no names. But reading in between the lines it was obvious that the newspaper had in mind at least Lawal and Akpabio from APC, as well as Senator Bala Mohammed and Hon Aminu Tambuwal, the governors of Bauchi and Sokoto states, respectively.

PDP, their party, has since replaced the names of the original winners of its governorship primaries in the two states with the two. The original winners had withdrawn their candidature in accordance with Section 31 of the Electoral Act and paved the way for the states’ first-term governors to participate – and win – in the reconducted governorship primaries of their states in accordance with Section 33 of the Act, following their failure at their parties’ presidential primaries.

Both Falana and Vanguard have, in my view, read Section 115 (1) (d) of the Electoral Act, which deals with this issue, wrongly. The section says a person who “signs a nomination paper or form as a candidate in more than one constituency at the same election… commits an offence and is liable on conviction to a maximum term of imprisonment for two years”(emphasis mine).

What this clearly means is that it is only after one has become a candidate of a party in one constituency that it becomes illegal for him to sign the nomination paper or form for another constituency, whether in the same party or another, presumably because that would amount to hedging one’s bet which, in the circumstance, would seem morally wrong and improper.

Now, I may be wrong, but so far, no one has gone to court to challenge PDP in substituting the Bauchi and Sokoto governors for the candidates that withdrew after the governors lost their party’s presidential primaries and after the governors took part in the fresh primary mandated by Section 33 of the Act.

However, the APC candidate, Ekpoudom, who challenged his substitution by the party with Akpabio in a Federal High Court, lost. This matter, being a pre-election matter, may go all the way to the Supreme Court. Until then, however, it would be wrong to argue that it is illegal to aspire to more than one office, even after one has failed in another.

Because Akpabio won and Lawan lost when their cases look similar, some pundits have been accusing the Federal High Court that ruled in favour of Akpabio of arbitrariness. However, the similarity of the two is only at cursory glance. A closer look will show that the two cannot be more different.

In Lawan’s case, APC did not have to contend with two factions in his state; whereas in Akpabio’s case the state party split into two in the run up to its Congress in October 2021, one led by Mr. Stephen Leo Ntukekpo, the other by Mr. Augustine Ekanem. In the litigation that ensued, a Federal High Court in Abuja in March this year ruled in favour Ntukekpo and the party Headquarters duly swore in his Executive Committee. It is this faction that Akpabio belongs to.

Now, it is a notorious fact that there has been no love lost between Akpabio and Igini since the former lost his bid to return to the Senate in the 2019 general elections under Igini’s watch as the state’s REC. Perhaps for that reason Igini refused to have any dealings with the Ntukekpo faction even though INEC Headquarters’ correspondences have always been with that faction in obedience to the Federal High Court ruling in question.

Predictably when the party conducted its primaries, the former REC chose not to monitor the ones under Ntukekpo in spite of the fact that the party’s Headquarters sent its Election Committee to conduct only the primaries organised by that faction. Instead, he chose to monitor Ekanem’s. Based on Section 84 (1) of the Electoral Act, the outcome of any party primary not monitored by INEC is null and void.

However, this is only in so far as the party fails to give the Commission the requisite notice. Where it does so and INEC fails to honour the notice, it will be hard, if not impossible, to successfully argue that the outcome of its primary stands as invalid. This, apparently, explains why Lawan lost in the court against Machina but Akpabio won against Ekpoudom who emerged in a primary INEC apparently monitored but which was not conducted by APC’s National Executive Council.

And we all know that conducting primary elections is the constitutional prerogative of the National Executive Councils of political parties, not their State Executive Councils. This is why INEC can only reject the name of any candidate forwarded to it by a party if it is dissatisfied with the party’s conduct of its primary, but cannot publish any name not sent to it by the party – unless so ordered by the Courts – even if the report of its monitors says he is the winner.

More specifically, this was why INEC could reject Akpabio’s name but could not publish Ekpoudom’s even though Igini’s report said he was validly nominated. Similarly, it was why the Commission could reject Lawan’s name but could not initially publish Machina’s, even though there was only one primary for Yobe North and the Commission’s report said he won it fair and square, the reason being his party did not at first forward his name until the Courts ordered it to do so and it obeyed, albeit reluctantly.

The long and short of all this is that until their cases are heard by the Supreme Court and it decides otherwise, neither Akpabio, nor Mohammed, nor Tambuwal have committed any illegality by falling back on their second options after failing in their first. Even Lawan committed no illegality by wanting to return to the Senate after failing in his bid for APC’s Presidential ticket, except that he tried to do so in violation of Sections 31 and 33 of the Electoral Act.

Now, if there is any ambiguity surrounding Akpabio’s case – or, for that matter, even Lawan’s – there is none whatsoever surrounding the status of RECs in INEC; contrary to Falana’s argument, they are not members of the Commission and it is not, as Falana says, “irrelevant and diversionary” to make the distinction between RECs and National Commissioners. His basis for equating the two is that RECs, like National Commissioners, are appointed by the President, subject to clearance by the Senate, and can be sacked by the President only if he is supported by two-thirds of its majority.

All this, of course, is true. However, relying on them only for his view betrayed the Senior Advocate’s incomplete reading of our Constitution. Section 153 (1) of the Constitution lists 14 Federal Commissions and Councils the Federal Government must establish, including the Federal Character Commission, National Population Commission, INEC and the Council of State. Section 14 (1) of its Third Schedule is quite clear as to who the members of INEC are. The Commission, it says, “shall comprise the following members – (a) a Chairman, who shall be the Chief Electoral Commissioner; and (b) twelve other members to be known as National Electoral Commissioners.”

Quite instructively, the Constitution has a separate Sub-section for RECs. This is Sub-section 3 which says “There shall be for each State of the Federation and the Federal Capital Territory, Abuja, a Resident Electoral Commissioner” who, like National Commissioners, will be appointed by the President, subject to confirmation by the Senate. Nowhere in Section 14 of the Third Schedule does the Constitution say the 37 RECs mandated for the Commission are its members.

-Haruna is a National Commissioner of the Independent National Electoral Commissioner, INEC

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