Does The Independent National Electoral Commission Has Power To Reject Names Of Candidates Submitted To It By Political Parties?
By Manfred Ekpe, Esq.
There has been argument by some legal minds that the Independent National Electoral Commission (INEC) (which shall hereinafter be referred variously to as INEC or the Commission) has powers under the novel Electoral Act 2022 to reject names of candidates for election submitted to it by political parties under sections 29 and 84 of Electoral Act 2022. Section 285 of the constitution of Nigeria 1999 (as amended) (hereinafter referred to as the CFRN) and section 84(13) of the Electoral Act 2022 has often been cited to support this proposition. I disagree humbly but firmly with this reasoning. The constitutional proviso in section 285 is cited as section 285(14) (a)(b) to support that proposition. However, I have searched what appears to be the latest 2011 amendment to the Nigerian Constitution but cannot see such provision. Section 285 appears to end at subsection (4). I therefore proceed on the presumption that the news reporter mistakenly misquoted subsection (4) as subsection (14), except shown to the contrary that section 285 of the latest amendment of the CFRN has subsection (14) and vest powers therein on INEC to control political parties primaries.
Proceeding from the foregoing, it is my submission that the new Electoral Act 2022 has removed from the realm of the Commission the powers to interfere with the internal activities of political parties including choice of candidates forwarded to the Commission for a general election under sections 29, 84 and any other section in pari materia thereof. I venture to assert that in my view, as relating with party primaries, INEC only has power to monitor, guide and advise political parties and make reports which can be accessed by the public, which certified true copy thereof can be tendered in court in evidence of compliance or otherwise of party primaries with the law, as rightly advanced by Muhammed Haruna, a national commissioner of the Commission.
At the event of the emergence of a candidate without due compliance with the electoral law, the only option for remedy are the appropriate parties to approach the court of law for redress. INEC’s mandate presently is not to contest contentious issues arising from internal or intraparty politics such as primary elections, but remains nominal, even in legal action challenging the process of the intraparty election since the Commission has no active role to play in it, and for that reason is bereaved of the standing to contest its outcome. This was the position of INEC as approved by the court in suit no. FHC/ABJ/ CS/1635/2021 between Obong Stephen Leo Ntukekpo v APC and others.
Section 285 of the CFRN cited in support of the purported powers of INEC to reject names of candidates forwarded to it by political parties only talks about the National Assembly election petition tribunals which has jurisdiction over post election matters arising from general elections. That constitutional provision does not relate to INEC’s powers over the intraparty elections otherwise called primaries. General elections are not internal activities of political parties.
For avoidance of doubt, section 285(1) (a) —(d) of the CFRN says thus:—
- “There shall be established for the Federation one or more election tribunals to be known as the National Assembly Election Tribunals which shall, to the exclusion of any or tribunal, have original jurisdiction to hear and
determine petitions as to whether” –
(a) “any person has been validly elected as a member of the National Assembly;
(b) the term of office of any person under this Constitution has ceased;”
(c) “the seat of a member of the Senate or a member of the House of Representatives has vacant; and
(d) a question or petition brought before the election tribunal has been properly or improperly brought”.
It is clear from the provisions of section 79 of the CFRN that it was not intended by the lawmakers to bring party primaries within the control of INEC. That provision provides for elections under which the National Assembly shall make law allowing INEC to have control. In the Expressio unius est exclusio alterius rule of constitutional interpretation and construction, party primaries is excluded from the control of INEC by section 79 supra. Running on the steam of this therefore, it is my firm legal reasoning that should the National Assembly make any law to bring party primaries under the control of INEC, such law would crumble under section 79 of the constitution and lose its life.
Having said thus far;
I submit that Section 84(13) of the Electoral Act 2022 has been cited to support the proposition that INEC is conferred with power to reject name of candidate submitted to it by political parties under section 29 and 84 of the Electoral Act or any other related provisions, where the primary that produced such candidate did not comply with the law. With respect, I humbly but firmly disagree with this reasoning.
Section 84(13) of the Act says thus—
(13) “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.”
On the surface, from the wording of the above provision, it would appear that since INEC’s mandate is to print ballot papers, and organize, regulate, conduct and superintend over general elections, that it is implied in the said section 84(13) that the Commission has power to extra judicially exclude a candidate not validly nominated from the ballot. And that the aggrieved person so excluded can then approach the court for redress. This was the position of the law pre-2010 amendment to the Electoral Act.
However, a closer scrutiny of the said proviso in subject (13) of section 84 reveals that such construction departs from the envisagement of the lawmakers. Section 84(13) cannot be read in isolation of section 84(14). It is simpliciter a rudimentary principle of constitutional and statutory construction that provisions of instruments are read as a whole to assign their intended meaning. See Buhari v. Obasanjo (2015). The said section 84(14) of the Electoral Act reads thus—
(14) “Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court for redress”.
The language “notwithstanding anything in this Act” as used in section 84(14) means that subsection (13) is subject to subsection (14) of section 84 thereof. The legal effect of this is that it is only the federal high court that has the power to question whether primaries was conducted in compliance with the law or not, and that only the federal high court can give vires to INEC to exclude from the ballot a candidate whose nomination was not in compliance with the law. This is the import of section 84(13). Synoptically, it is my view that INEC lacks the power to reject Senator Ahmed Lawan’s name submitted to it by APC even if the commission strongly feels that he was not validly nominated as senatorial candidate for Yobe North senatorial district. Sheriff Machina the claimant to valid nomination only has to approach the federal high court for redress.
Arising from the foregoing therefore, it is my hallowed legal opinion that INEC lacks the locus to reject names of candidates forwarded to it by political parties, and I align with INEC’s position in that regard as declared by its national commissioner, Muhammed Haruna.
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