By Abiodun Owonikoko, SAN
At our law firm’s Weekly Chambers meeting last week, we took time to analyse section 84 of the Electoral Act, 2022. The choice of that section for intellectual interrogation was deliberate.
It was in acknowledgment of the onset of phase 1 in the 2023 elections cycle – the 2nd will be due in earnest after the general elections in 2023.
A brand new legislation (Electoral Act, 2022 assented to on February 25) yet to be tested and interpreted with any degree of certainty or clarity has come into play. It was felt to be a profitable and proactive endeavour for lawyers who play in the electoral litigation turf to be abreast -if not ahead – of being subject tied to matters that may arise from party primaries.
Section 84 of the Act was, therefore, identified as a goldmine for lawyers but a landline for undiscerning politicians.
Given the cacophony of news tidbits about deluge of emerging potential aspirants in the two leading political parties, it was well worth our time to concentrate on likely provisions of the section that might prove contentious or problematic.
The earliest candidate for controversy was section 84 (12). It is a novel prescription for potential aspirants holding political appointments not to be qualified to vote as a delegate or to be voted for at the party convention or congress for the purpose of nomination as candidates for any election.
A judgment from High Court Umuahia has ruled on the subsection as being unconstitutional; and ordering the HAGF to delete it from the Statute book. Needless to appreciate that the decision was a mere validation of the reservation expressed by President Buhari when he assented to the bill in February. The jury is still out on the soundness of the decision – being subject of an appeal that is bound to travel the full route until the final court renders a definitive verdict on it.
We thus came to the interim position that the sub-section (12), in so far as it disqualifies political appointees from being voted for at party primaries, was likely to fail as an overreach of their right as a citizen who is otherwise qualified to seek the elective office under the constitution. But we reasoned that the portion which prohibits them from voting at the primary is not in conflict with any constitutional provisions. The constitution leaves parties to run their affairs in any manner so long as principle of democratic electoral system is entrenched and observed.
But beyond that, it seemed to us that section 84(12) requires to be interpreted harmoniously with section 84(8). This is another novel provision introduced in the Act. The correct approach to interpreting statutory instrument containing inter-related provision is to give it a harmonious construction as far as the intent of the legislature is clear.
It reads – A political party that adopts the system of indirect primaries for the choice of its candidate shall clearly outline in its constitution and rule the procedure for democratic election of delegates to vote at the convention, congress or meeting.
The expression ‘democratic election’ means emergence by majority vote ( be it simple or plural). It is not synonymous with appointment, anointment or selection. A segregation of delegates at party convention or congress for party primaries between ad HOC and special delegates where certain elected office holders get preferential right to load delegates with their hirelings, will violate section 84(8).
Now whichever mode adopted by the party between consensus, direct or indirect primaries, the final stage for election for nomination of party candidates involves congress or convention to either elect, ratify or confirm the nominated candidate. See section 84 (3) and (11).
The net effect is that, contrary to what the parties presently presume, only elected delegates can participate in party primaries either directly in indirect election; or to ratify or confirm successful candidate in primaries by consensus or direct primary election. The latter is defined under the Act to mean “…an election at which candidates for elective office are chosen by direct vote of political party members instead of by delegates at a convention or congress.”
What seems to be a source of confusion in interpreting these subsections is the stipulation in subsection 8 that a party opting for indirect primaries ‘…shall clearly outline in its constitution and rule “ the procedure for democratic election of delegates.
As the language of the provision is mandatory, it binds the party. If its constitution did not previously provide for such democratic process (in full) or allowed hybrid process of ad HOC and selected or ex-officio delegates; the law presented it with a bounded duty to amend its constitution to bring it into conformity with new Electoral Act, 2022. It will not appear safe to proceed with party primary post- 2022 Electoral Act by adopting hybrid elected and automatic delegate’s system.
Why? The answer lies in section 84 (13). It reads – Where a political party fails to comply with 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.”
The above subsection is equally novel. The effect is to open an entirely new cause of action for non-party members. It is similar to the judgment of the Supreme Court in Zamfara case of APC v MARAFA.
It enables and invests locus standi in opposition parties and their candidates to prevent the defaulting political party from fielding candidates at the corresponding general election. It further admits in the express terms the availability of the doctrine of wasted votes against the party at an election tribunal where the point is so properly taken, if the challenge was not litigated as a pre-election matter; and if it is not statute barred under section 285 (14 ) of the Constitution of the Federal Republic of Nigeria (as altered).
In other words – the converse of the erstwhile ground of unlawful exclusion in election petition which was removed in the 2022 Act. It will then feature most likely by an adroit crafting of pleading under section 134 1(b) as part of the ground for the petition. That is a challenge that the election in question was invalid by reason of ..Non compliance with the provisions of the Electoral Act, to Wit : Section 84 (8) & (13).
The ground will thus not be challenging the qualification of the sponsored candidate. Ground of qualification simpliciter is confined to a candidate having satisfied constitutional requirements vide section 134 (1) (a) and (3) of the Act.
In this instance contemplated it, rather, the default of the sponsoring political party and INEC that will be targeted.
It has just now come to light as this piece was being concluded that the National Assembly has realised this booby trap and as reported by Channels Television, a fast track bill was introduced in the Senate today to enact an amendment to section 84(8) by allowing non-elected delegates. It remains to be seen if that recourse will obviate the challenge. I so contend because, if the terms of the proposed amendment is as reported: it may run into three briefs.
One: the ongoing primaries cannot be caught by the amendment as to deprive party members and aspirants of their vested rights as at the time they procured nomination forms. The power of legislature to make a law retrospective does not reach deprivation of vested substantive rights.
Secondly, the amendment is ad hominem – in that it seeks to benefit discriminatorily only a privileged group of party members to the detriment of non-incumbent aspirants.
Thirdly, it is a violation of the constitutional stipulation that political party must operate with a constitution that provides for democratic elections of its organs and officers. Section 223 (1) of the Constitution of the Federal Republic of Nigeria (as altered).
What section 84 (8) of the Electoral Act, 2022 has done is to specify by legislation what the Constitution of Nigeria has merely enjoined political parties to reflect and observe in their operations. A repeal of it from the Act , when it remains entrenched in the organic and supreme law of the land, will not suffice. It is a rule which (without the focus placed on it by section 84(8) could have been legitimately inferred by the court, if so canvassed.
Now, let’s see what the new bill seeks to achieve as reported online: *The Senate on Tuesday amended the Electoral Act, 2022, to allow ‘statutory delegates’ – all those elected – to participate and vote in the conventions, congresses or meetings of political parties.
This followed the expeditious consideration of a bill during plenary which scaled first, second and third readings, respectively, and was passed by the lawmakers after consideration by the Committee of the Whole.
Those identified as ‘statutory delegates’ include the president, vice-president, members of the National Assembly, governors and their deputies, members of the State Houses of Assembly, chairmen of councils, councillors, and national working committee of political parties, amongst others.
In his presentation, the Deputy Senate President, Ovie Omo-Agege, who sponsored the ‘Bill to amend the 2022 Electoral Act No. 13,’ said it seeks to amend the provision of Section 84(8) of the law.”
It is highly unlikely that the new Bill (if passed as proposed) will survive challenge for inconsistency with section 233(1) of the Constitution and for being discriminatory and undemocratic.
It appears that civil societies and INEC have gamed the political class in coaxing and cajoling the National Assembly to get the Electoral Act, 2022 passed in the version assented to by President Buhari.
It is hard to find the rationale or the good faith, for seeking to repeal a legislative provision like section 84(8) of the Electoral Act, 2022 in order to weaponise unelected, self-serving super delegates to overwhelm or dilute votes of ordinary members duly elected as delegates at party primaries. The only purpose it will serve is to entrench those elected and appointed into public offices and those holding offices of the party to consolidate their stranglehold on the affairs of political parties.
That is not democracy. It rankles the underpinning of popular electoral democracy.
The sooner the politicians back-track from the retrograde move, the better for the polity. Or else they might be inviting a repeat comeuppance of the luckless fate suffered and lamented in the aftermath of the Supreme Court decision in APC
In the latter, the Supreme Court held that an amendment of local government law of Ekiti State to permit removal of elected local government councils officials and replace them with arbitrary appointees of the state governor was a violation of section 7(1) of the Constitution of which guarantees the existence of democratically elected local government councils throughout the federation.
The fact that in the past, political parties had inserted special delegates in their constitution (unchallenged) prior to the Electoral Act, 2022 makes no difference to the invalidity of retaining same person in the face of section 233 (1) of the Constitution of Nigeria or expressly providing for same in the Act as proposed to be amended unless section 233 of the Constitution of Nigeria prohibiting such undemocratic mode of party administration is first repealed .
Section 84(8) of the Electoral Act, 2022 is not only an eye opener of what is possible to enhance the democratic space within political parties, it is perhaps the most unintended albatross on the conscience of the Nigerian political class ahead of 2023 party primaries and the general election.