Party primaries and the new legal regime

THE essence of democracy and party system is the control of the machinery of government through the process of election . In democratic dispensation, power belongs to the electorate whose votes should count as an instrument of enthronement into the various elective offices, from the presidency down to the councillorship.

To enhance the chances of political parties in emerging victorious at the election and consequently capture the machinery of government, they are expected to present sellable, credible and popular candidates to stand as their flag bearers. This is done through primaries to determine the popularity of its candidates.

It is the expected norm where the votes of the electorate mean anything in an electoral process .But in Nigeria the issue of primaries is handled with disdain considering that the character and personality of candidates for election do not matter and the people’s votes do not count either .

As a matter of fact, election results in Nigeria are often magical. They are compiled, computed and stamped sometimes days before the scheduled election, just awaiting the announcement by the electoral body which often submits to being a willing tool.
Indeed, the results are awarded according to how “powerful “a candidate is .Such is the tragedy of our democratic experience since 1999.

The plethora of judicial decisions overturning manipulated election results speaks volume of the nation’s electoral abracadabra .It is disappointing and questions the integrity of our electoral body. And I have doubt whether Prof Jega’s regime will make any difference.

The party’s internal democracy is the foundation or watershed of democratic best practices.  Our fathers say that where a fish is found to be rotten at the head, its entire body cannot be salvaged.

Despite the importance that ought to be attached to party primaries as the harbinger of true democracy, and as an issue in which every stakeholder should be concerned, it has always been considered a purely internal affair of each political party where nobody, be he or she a candidate, or the general public or even the court of law, should question  .

Thus, in Ugwu vs  Ararume (2008) 12 NWLR (Pt  1048) 367 and in the cases of Enhilanwo  vs.  Oke (2008) ALL FWLR (Pt 442) 1004 at 1045, and Onuoha vs Okafor (1983)2 SCNLR .244, the  Supreme Court held that matters raising political questions as to how a political party should organise its primaries or who should be its candidate at an election, is strictly a matter within the exclusively jurisdiction of the political party which the court lacks the jurisdiction to interfere with.

The court is of further of the view that primaries could be in any form. It could be way of election, selection, appointment or a combination thereof . A political party may pick its flag bearer for an election in any manner it deems fit and the court cannot inquire into the issue. For example ,the Peoples Democratic Party (PDP) appointed former CBN Governor, Prof Charles Chukwuma Soludo as the party’s flag bearer for February 2011 Anambra State governorship election amidst protest from other candidates .

In my article entitled “Party Primaries and the law“ published in March 2010, before the amendment of the Electoral Act 2006, I had cause to submit that :

“The settled law for now is that the choice of candidate to stand for a party in an election could be by appointment, selection or primary election. Any of these methods or a combination thereof, is valid. Unless the Supreme Court has another opportunity to over-rule itself , the above position remains the law .

The fact, however, is this position is susceptible to abuse as in the Soludo’s case. It is hoped that in future, it will be important for the Supreme Court to consider the question whether nomination by any means other than by primaries is not an imposition of candidates and whether imposition of candidates is not inconsistent with democratic spirit which the political party binds itself to observe;  and where a political party acts contrary to its constitution and the Electoral Act, whether such conduct cannot be challenged? The 2011 election will provide opportunity to streamline the law on imposition of candidate”.

The judicial pronouncement that party primaries are strict internal affairs of each political party seems to me to have fallen into the debris of history in our quest to promote party internal democracy.  Electoral Act 2010 has now brought about a new legal regime on issue party primaries. Section 87 of the Act stipulates that a political party seeking to nominate candidates for elections shall hold primaries for aspirants to all elective positions.

The primaries could be by way of direct or indirect election, and all the aspirants shall be given equal opportunity of being voted for by members of the party. Aspirant with the highest number of votes at the end of the voting shall be declared the winner of the primaries of the party and the aspirant name shall be forwarded to the Independent National Electoral Commission as the candidate to the party.
Section 87 of the Act, further states that an aspirant who complains that any of the provisions of this Act and the guidelines of a political party has 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 or the High Court of a State , for redress .

The crucial point of emphasis is that with the 2010 Electoral Act, party primaries is recognised as the cornerstone of democratic best practices, and it is no longer a purely internal affair of a political party which cannot be questioned by any person or institution. The court is now empowered to inquire into the complaints of aspirants in party primaries. Nigeria is therefore poised to witness a new legal regime that will reshape our democratic values by strengthening parties internal democracy.

It seems  to me that in no distant time, the proposition of Anacharsis, the ancient Greek Philosopher, that “the law is like cobweb, too weak to hold the strong but too strong to hold the weak “ may no longer apply in the nation’s political landscape . A word of caution: Let the organizers of party primaries beware. In the new dispensation, it shall lead to the fall and rise of many elective office holders.

Mr. BY IGNATIUS ORISEWEZIE, a lawyer, writes from Asaba.