Nigeria: The Constitution, Electoral Act 2022, Lawan, Akpabio, Falana and INEC

The trigger for this rather longish article is the controversy that has surrounded recent party primaries for candidates for next year’s two-part general election.

But first, a caveat. This piece is not the official position of the Independent National Electoral Commission (INEC) of which I am a national commissioner.

Having entered my caveat, let me return to what triggered this piece in the first place. On June 18, a friend sent me an article by the US-based syndicated columnist of Nigerian Tribune (among other newspapers), Professor Farouk Kperogi. Kperogi, a brilliant and rigorous writer and journalist, was a must read for me until sometime last year when I noticed all he would write about, column after column was how terrible President Muhammadu Buhari was, especially as a leader, in the foulest language you can think of. For me, civility in language has always been a key consideration in what I choose to read.

This was how I missed Kperogi’s angry piece titled “Lawal, Akpabio and INEC’s Crippling Moral Crisis”, in which he condemned INEC for his belief that we had accepted Ahmed Lawan’s name as the Senatorial candidate of All Progressive Congress (APC) for Yobe North while rejecting that of Godswill Akpabio as the party’s candidate for Akwa Ibom North West. Both had contested and lost the party’s presidential primary election held on June 9.

Based on the country’s new Electoral Act 2022, the Commission, Kperogi said, should have rejected both names. In an apparent fit of anger, he went personal by singling out the commission’s chairman, Okoye, its official spokesman, and myself for condemnation.

The simple answer to his angry piece, I said in my reply to him via WhatsApp, was that INEC had no powers to reject candidates sent by political parties. Our role, I said, was simply to monitor party primaries to ensure they adhered to the country’s Constitution, the Electoral Law and their own constitutions and issue, on request, certified true copies of our reports as possible evidence in court in support of any aspirant who felt dissatisfied with the outcome of his party’s primary.

The Commission, I said, had not picked and chosen between Lawal and Akpabio but had merely received the two names and were yet to publish same, or for that matter, any names, in accordance with Section 29 (3) of the new Electoral Law, which mandated such publication within a week of submission of names of candidates, for claims and objections. Mere receipt of the names did not, I said, automatically translate into acceptance.

Later that day, Kperogi replied to my text and said he found my clarification “very useful and insightful”. He then sought my permission to publish the clarification and I gave him the go ahead.

Four days later, on June 22, he forwarded to me an online newspaper interview by my friend, Mr. Femi Falana, SAN, in which the civil rights activist said I was wrong to say that INEC was powerless to reject illegally nominated candidates by parties. A new Section 84 (13) of the Act, combined with Section 29 (1), Falana said, gave the Commission the power to accept only the names of candidates that have emerged through a “valid primary”, as variously defined in several sub-sections of Section 84. Kperogi asked me if I had any response to Falana’s view. I replied that I had and agreed that the Senior Advocate was right and I was wrong because my opinion did not take Section 84 (13) of the Electoral Act 2022 into consideration.

I told Kperogi that at the time I responded to his piece, the Commission was yet to meet, as it always does on such issues, to take a position on the publication of the names of candidates submitted to it by the parties for claims and objections, and so I was merely expressing my personal opinion. The mistake I made, in retrospect, was to have permitted him to publish it, knowing it was likely to be construed as the Commission’s position.

However, all this is now academic. On June 24, INEC published the personal particulars of the presidential and National Assembly candidates of political parties for claims and objections without those of Lawal and Akpabio, which APC had submitted. The two were omitted after the Commission met following the June 17 deadline for submission of the particulars by all political parties, and arrived at the conclusion that neither of the two had been validly nominated. In other words, we did not discriminate between Akpabio and Lawan in favour of the latter, as Kperogi had accused us.

As we all know by now, both cases went to court after our publication. Akpabio won but Lawal lost, a loss he said he would not contest but which his party initially said it would but later changed its mind and wrote to the Commission to forward the name of Alhaji Bashir Machina, the winner of the Yobe North Senatorial primary.

After the Falana interview, Kperogi sent me, the outspoken lawyer’s interview with Channels Television, which Saturday Vanguard transcribed in its edition of July 30. In that interview, Falana argued that it was criminal for anyone to engage in more than one primary in one election, in an apparent reference to the Senatorial bids of Lawan and Akpabio. “They,” he said, “contested in that one. They cannot contest in another primary.”

Concluded on

Mohammed Haruna is INEC National Electoral Commissioner


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