Examining the Provisions of the Electoral Act, 2022

by Roland Otaru, SAN

It gladdens my heart to be invited to this occasion on the one–day capacity building workshop to shed light on the Electoral Act, 2022. There is no gainsaying that the before the enactment of the Electoral Act, 2022, different opinions were expressed by stakeholders whether the new Electoral Act, 2022 will see the light of day.

The discussion on the new Electoral Act 2022 started sometime in 2018 before the 2019 general elections. It was the expectation of the citizens of this country that a new Electoral Act will be enacted for the purpose of the 2019 general election, but alas, their dream was shattered by the Federal Government and the Electoral Act, 2010 became handy, but pressure was however, mounted by stakeholders and lovers of democracy on the National Assembly for the enactment of a new Electoral Act so that the yearnings of the citizens of Nigeria will be met.

It is as a result of this backdrop that a new Electoral Act, 2022 was born and the President of Nigeria, Muhammadu Buhari, GCFR on February 25, 2022, assented it to, thereby repealing the Electoral Act No. 6, 2010. The new Electoral Act, 2022 is to regulate the conduct of Federal, State and Area Council elections, to make provision for the restriction of the qualification for elective office to relevant provisions of the Constitution of Nigeria, 1999 (as altered), use of card readers and other technology devices in elections and political party primaries, to provide a timeline for the submission of list of candidates, criteria for substitution of candidates, limit of campaign expenses, and address the omission of names of candidates or logo of political parties.

The Electoral Act, 2022 has about 153 sections and each section deals with specific subject-matter. The Act is divided into various parts, which has substantive subject-matter therein. For instance, part 1 deals with Establishment and functions of INEC, i.e. Sections 1-7, part 2 deals with staff of the commission i.e. INEC i.e. Section 8, while part 3 is headed National Register of Voters and Voters Registration which encapsulates Sections 9 – 23. Part IV is on the Procedure at Election, which covers Sections 24 – 74 while Part V deals with Political parties i.e. Sections 75-97. Part VI is on Section 98-113. Part vii with the heading titled; Electoral offences is in respect of sections 120-129, while part VIII of the Electoral Act, 2022 with the heading Determination of Election Petition contains Sections 130-140. Part IX, which is titled Miscellaneous provisions covers Sections 141-153.

Let me point out straight away that all the sections of the Electoral Act, 2022 are all important and must be compiled with. There is nothing like cutting short-corners to side-track the mandatory provisions of the Act. This is because each section or majority of the sections used the word ‘shall’ which implies a mandatory compliance. Again, the reason for the comprehensive enactment of the new Electoral Act, 2022 with various innovations is to show that elections are very important in a democracy and ‘sui generis’, because elections or petitions arising there from are special proceedings and the provisions of the Electoral Act must be obeyed by every citizen in the country. The obedience to the provisions of the Electoral Act, 2022 must be carried out because if there is any contraventions of the Act, no matter the status of the offender, he or she will be prosecuted in line with our laws. The major objectives of this discuss or conversation is to provide essential political education and legal orientation to public office holders, state party executives, local government officials and chairman and secretaries. To promote due process and total compliance with the provisions of the Electoral Act by public officials and party officials.

Conduct of Primaries/Elections
The issue that usually rears its ugly head in elections is the issue of conduct of primaries of political parties and issues arising from the conduct of the general election. These fundamental issues cut across all the various elections for all the elective posts to be contested for. The proper conduct of a primary election is a ‘sine qua non’ in a democracy. Let me point out very strongly that if the primary election is not properly handled, the loss of a party springs from the conduct of a primary election. The reason for this is not far-fetched. Some party stalwarts usually referred to as ‘godfathers’ impose candidates on the electorate. This does not augur well for the sustainability of our democratic ethos and pathos. This is why the Electoral Act, 2022 makes the provisions for the conduct of party primaries under Sections 82-85 of the Electoral Act, 2022.

Section 82 of the Electoral Act, 2022 provides as follows; (1) Every political party shall give the commission at least 21 days notice of any convention, congress, conference or meeting convened for the purpose of merger and electing members of its executive committees, other governing bodies or nominating candidates for any of the elective offices specified under this Act (2) The commission may, with or without prior notice to the political party attend and observe any convention, congress, conference or meeting which is convened by a political party for the purpose of a) electing members of the executive committee or other governing bodies; b) nominating candidates for an election or any level; c) approving a merger with any other registered political party; (3) The election of members of the executive committee or other governing body of a political party, including the election to fill a vacant position in any of the aforesaid four bodies, shall be conducted in a democratic manner and allowing for all members of the party or duly elected delegates to vote in support of a candidate of their choice; (4) Notice of any congress, conference or meeting for the purpose of nominating candidates for Area council election shall be given to the commission at least 21 days before such congress, conference or meeting.

(5) Failure of a political party to notify the Commission as stated in subsection (1) shall render the convention, congress, conference or meeting invalid. Section 84 of the Electoral Act, 2022 deals essentially with nomination of candidates for party primaries. Section 84 provides as follows; (1) A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions which shall be monitored by the Commission. (2) The procedure for the nomination of candidates by political parties for the various elective positions shall be by direct, indirect primaries or consensus. Qualifications of Aspirants and Candidates. (3) A political party shall not impose nomination qualification or disqualification criteria, measures, or conditions on any aspirant or candidate for any election in its constitution, guidelines, or rules for nomination of candidates for elections, except as prescribed under sections 65, 66, 106, 107, 131, 137, 177 and 187 of the Constitution.

Direct Primaries
(4) A political party that adopts the direct primaries procedure shall ensure that all aspirants are given equal opportunity of being voted for by members of the party and shall adopt the procedure outlined – (a) in the case of presidential primaries, all registered members of the party shall vote for 5 aspirants of their choice at a designated centre at each ward of the Federation; (b) the procedure under paragraph (a) shall be adopted for direct primaries in respect of Gubernatorial, Senatorial, Federal and State Constituencies; (c) Special conventions or congresses shall be held to ratify the candidate with the highest number of votes at designated centres at the National, State, Senatorial, Federal and State Constituencies, as the case may be. Indirect Primaries. (5) A political party that adopts the system of indirect primaries for the choice of its candidate shall adopt the procedure outlined – (a) in the case of nominations to the position of Presidential candidate, the – i) political party shall hold a special presidential convention at a designated centre in the Federal Capital Territory or any other place within the Federation that is agreed to by the National Executive Committee of the party where delegates shall vote for aspirants of their choice, (ii) aspirant with the highest number of votes cast at the end of voting shall be declared the winner of the presidential primaries of the political party and that aspirant’s name shall be forwarded to the Commission as the candidate of the party; (b) in the case of nominations to the position of a Governorship candidate, the political party shall, where it intends to sponsor candidates – (i) hold a special congress in the State Capital or any other place within the State with delegates voting for aspirants of their choice at the congress to be held on a specified date appointed by the National Executive Committee (NEC) of the party, and (ii) the aspirant with the highest number of votes cast at the end of voting shall be declared the winner of the primaries of the party and the aspirant’s name shall be forwarded to the Commission as the candidate of the party, for the particular State; c) in the case of nominations to the position of a Senatorial candidate, a Member of the House of Representatives and a Member of a State House of Assembly, the political party shall, where it intends to sponsor candidates – (i) hold special congresses in the Senatorial District, Federal Constituency and the State Assembly Constituency respectively, with delegates voting for aspirants of their choice in designated centres on specified dates, and (ii) the aspirant with the highest number of votes cast at the end of voting shall be declared the winner of the primaries of the party and the aspirant’s name shall be forwarded to the Commission as the candidate of the party; (d) in the case of the position of a Chairmanship candidate of an Area Council, the political party shall, where it intends to sponsor a candidate – (i) hold special congresses in the Area Councils, with delegates voting for aspirants of their choice at designated centres on a specified date, and (ii) the aspirant with the highest number of votes cast at the end of voting shall be declared the winner of the primaries of the party and the aspirant’s name shall be forwarded to the Commission as the candidate of the party.

(6) In the case of a Councillorship candidate, the procedure for the nomination of the candidate shall be by direct primaries in the ward, and the name of the 7 candidate with the highest number of votes cast shall be submitted to the Commission as the candidate of the party. (7) Where there is only one aspirant or a consensus candidate in a political party for any of the elective positions mentioned in subsection (5) (a), (b), (c) and (d), the party shall convene a special convention or congress at a designated centre on a specified date for the confirmation of such aspirant and the name of the aspirant shall be forwarded to the Commission as the candidate of the party. (8) 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 the democratic election of delegates to vote at the convention, congress or meeting.

Consensus Candidate
(9) A political party that adopts a consensus candidate shall secure the written consent of all cleared aspirants for the position, indicating their voluntary withdrawal from the race and their endorsement of the consensus candidate. (10) Where a political party is unable to secure the written consent of all cleared aspirants for the purpose of a consensus candidate, it shall revert to the choice of direct or indirect primaries for the nomination of candidates for the aforesaid elective positions. (11) A special convention or nomination congress shall be held to ratify the choice of consensus candidates at designated centres at the National, State, Senatorial, Federal and State Constituencies, as the case may be. Political Appointee not Eligible as a Voting Delegate or Aspirant. (12) No political appointee at any level shall be a voting delegate or be voted for at the Convention or Congress of 8 any political party for the purpose of the nomination of candidates for any election. (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.

(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. (15) Nothing in this section shall empower the Courts to stop the holding of primaries or general elections under this Act pending the determination. Compliance with sections 65, 66,106,107,131,137,177, 182 and 187 of the 1999 Constitution (as amended).

These Sections provide as follows; Section 65(1) Subject to the provisions of section 66 of this Constitution, a person shall be qualified for election as a member of: (a) the Senate, if he is a citizen of Nigeria and has attained the age of thirty five years; and (b) the House of Representatives, if he is a citizen of Nigeria and has attained the age of 30 years; (2) A person shall be qualified for election under subsection (1) of this section if: (a) he has been educated up to at least School Certificate level or its equivalent; and (b) he is a member of a political party and is sponsored by that party.

Section 66 (1) No person shall be qualified for election to the Senate or the House of Representatives if: (a) subject to the provisions of section 28 of this Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or, 9 except in such cases as may be prescribed by the National Assembly, has made a declaration of allegiance to such a country; (b) under any law in force in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind; (c) he is under a sentence of death imposed on him by any competent court of law or tribunal in Nigeria or a sentence of imprisonment or fine for an offence involving dishonesty or fraud (by whatever name called) or any other offence imposed on him by such a court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court; (d) within a period of less than 10 years before the date of an election to a legislative house, he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of a contravention of the Code of Conduct; (e) he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in any part of Nigeria; (f) he is a person employed in the public service of the Federation or of any State and has not resigned, withdrawn or retired from such employment 30 days before the date of election; (g) he is a member of a secret society; (h) (deleted) (i) he has presented a forged certificate to the Independent National Electoral Commission.

(2) Where in respect of any person who has been- (a) adjudged to be a lunatic; (b) declared to be of unsound mind; 10 (c) sentenced to death or imprisonment; or (d) adjudged or declared bankrupt, any appeal against the decision is pending in any court of law in accordance with any law in force in Nigeria, subsection (1) of the section shall not apply during a period beginning from the date when such appeal is lodged and ending on the date when the appeal is finally determined or, as the case may be, the appeal lapses or is abandoned, whichever is earlier.

(3) For the purposes of subsection (2) of this subsection “appeal” includes any application for an injunction or an order certiorari, mandamus, prohibition or habeas corpus, or any appeal from any such application. Section 106; Subject to the provisions of section 107 of this Constitution, a person shall be qualified for election as a member of a House of Assembly if a. he is a citizen of Nigeria; b. he has attained the age of thirty years; c. he has been educated up to at least the School Certificate level or its equivalent; and d. he is a member of a political party and is sponsored by that party.

Section 107(1); No person shall be qualified for election to a House of Assembly if – a. subject to the provisions of Section 28 of this Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, has made a declaration of allegiance to such a country; b. under any law in force in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind; 11 c. he is under a sentence of death imposed on him by any competent court of law or tribunal in Nigeria or a sentence of imprisonment or fine for an offence involving dishonesty or fraud (by whatever name called) or any other offence imposed on him by such a court or tribunal substituted by a competent authority for any other sentence imposed on him by such a court or tribunal; d. within a period of less than 10 years before the date of an election to the House of Assembly, he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of a contravention of the Code of Conduct; e. he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in any part of Nigeria; f. he is a person employed in the public service of the Federation or of any State and he has not resigned, withdrawn or retired from such employment thirty days before the date of election; g. he is a member of any secret society; h. (deleted) i. he has presented a forged certificate to the Independent National Electoral Commission.

Where in respect of any person who has been a. adjudged to be a lunatic; b. declared to be of unsound mind; c. sentenced to death or imprisonment; or d. adjudged or declared bankrupt, any appeal against the decision is pending in any court of law in accordance with any law in force in Nigeria, subsection (1) of this section shall not apply during a period beginning from the date when such appeal is 12 lodged and ending on the date when the appeal is finally determined or, as the case may be, the appeal lapses or is abandoned, whichever is earlier. 1) For the purposes of subsection (2) of this section, an “appeal” includes any application for an injunction or an order of certiorari, mandamus, prohibition or habeas corpus, or any appeal from any such application. Section 131;

A person shall be qualified for election to the office of the President ifa. he is a citizen of Nigeria by birth; b. he has attained the age of forty years; c. he is a member of a political party and is sponsored by that political party; and d. he has been educated up to at least School Certificate level or its equivalent. Section 137(1) A person shall not be qualified for election to the office of President if (a) subject to the provisions of section 28 of this Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, he has made a declaration of allegiance to such other country; or (b) he has been elected to such office at any two previous elections; or (c) under the law in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind; or (d) he is under a sentence of death imposed by any competent court of law or tribunal in Nigeria or a sentence of imprisonment or fine for any offence involving dishonesty or fraud (by whatever name called) or for any other offence, imposed on him by 13 any court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court or tribunal; or (e) within a period of less than ten years before the date of the election to the office of President he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of the contravention of the Code of Conduct; or (f) he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in Nigeria or any other country; or (g) being a person employed in the civil or public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least 30 days before the date of the election; or h. he is a member of any secret society; or (i) (deleted) (j) he has presented a forged certificate to the Independent National Electoral Commission.

  1. Where in respect of any person who has been a. adjudged to be a lunatic; b. declared to be of unsound mind; c. sentenced to death or imprisonment; or d. adjudged or declared bankrupt any appeal against the decision is pending in any court of law in accordance with any law in force in Nigeria, subsection (1) of this section shall not apply during a period beginning from the date when such appeal is lodged and ending on the date when the appeal is finally determined or, as the case may be, the appeal lapses or is abandoned, whichever is earlier. Section 177.

A person shall be qualified for election to the office of Governor of a State if – 14 a. he is a citizen of Nigeria by birth; b. he has attained the age of thirty-five years; and c. he has been educated up to at least School Certificate level or its equivalent. Section 182(1) No person shall be qualified for election to the office of Governor of a State if – (g) being a person employed in the public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least 30 days to the date of the election; or Section 187(1) in any election to which the foregoing provisions of this part of this Chapter relate a candidate for the office of Governor of a State shall not be deemed to have been validly nominated for such office unless he nominates another candidate as his associate for his running for the office of Governor, who is to occupy the office of Deputy Governor; and that candidate shall be deemed to have been duly elected to the office of Deputy Governor if the candidate who nominated him is duly elected as Governor in accordance with the said provisions.

(2) The provisions of this Part of this Chapter relating to qualification for election, tenure of office, disqualifications, declaration of assets and liabilities and Oath of Governor shall apply in relation to the office of Deputy Governor as if references to Governor were references to Deputy Governor. The above provisions of the Electoral Act, 2022 and the relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) must be complied with, by the parties and their candidates if they want a seamless conduct of primaries, nomination and to be duly elected during the general election.

Section 84(12) of the Electoral Act, 2022
This provision of the Electoral Act, 2022 has generated a lot of tension in our polity. At the risk of repetition, the Section provides as follows; 15 “no political appointee at any level shall be a voting delegate or be voted for at the convention or congress of any political party for the purpose of the nomination of candidates for any election. (Underlining supplied by me to draw attention). The controversy relating to this section has been a subject of conversation throughout the country. The provision of this section is unambiguous and should be given its literal interpretation. The key words in this section has been defined under section 153 of the Electoral Act, 2022 as follows; “candidate” means a person who has secured the nomination of a political party to contest an election for any elective office; “election” means any election held under this Act and includes a referendum; “political party” includes any association of persons whose activities includes canvassing for votes in support of a candidate for election under this Act and registered by the commission; “primaries” or “primary election” means intra-party election by voters of a given political party to nominate candidates for elective office in accordance with a political party’s constitution and the Law; Your Excellency, Distinguished Ladies and Gentlemen, the Electoral Act, 2022 did not define the words “political appointee” as enacted under Section 84(12) but the word “appointment” is defined under section 153 of the Act as follows: “appointment” includes appointment to an office, confirmation of appointment, promotion or transfer.”

One can, therefore, decipher the meaning of “political appointee” to mean those who are appointed to their positions, either at the Federal, State and Local levels on the basis of political patronage. The raison d’etre for this provision to avoid or checkmate a situation whereby the Head of the Executive at the Federal, State and Local government will not appoint a motley of political appointees for the purpose of nomination of candidates as this will not ensure transparency at elections. Although, this provision has been struck down by the Federal High Court, Umuahia in Abia state and it is now an appeal to the Court of Appeal, Owerri and same is slated for hearing on or about the 5th day of May, 2022.

Since the action pertaining to this section of the Electoral Act, 2022 is subjudice, I will not comment further on it until our Superior Courts decide the propriety or otherwise, of this provision in our extant Electoral Act. Resignation from office

Another turning issue, which has come to the fore in our present democratic dispensation is the issue of resignation from office of political appointees or persons who are in the service of the Federal, State and Local governments. This is not a new provision in our electoral laws. This is provided under Section 66 (1)(F) of the 1999 Constitution (as altered), which provides as follows; “No person shall be qualified for election to the Senate or the House of Representatives if: (f) he is a person employed in the public service of the Federation or of any State and has not resigned, withdrawn or retired from such employment thirty days before the date of election; See also Sections 107(1)(F) of the 1999 Constitution for State House of Assembly, Section 137(1)(G) of the 1999 constitution(as amended), Section 182(1)(G) of the 1999 Constitution (as amended).

What this means is that any person who is either in the Federal, State and Local Government, Civil or Public service must resign at least 30 days before the date of the election. See also Section 318 of the 1999 constitution (as amended) for the definition of what constitute “Public Service” of the Federation or state public service. The provision relating to resignation at least 30 days to the date of election has been decided in the Court of Appeal Case of DADA VS, ADEYEYE (2005) 6 (Pt. 920) Page 1.

Salient innovations enacted in the Electoral Act, 2022
Some innovations have been enacted in the Electoral Act, 2022. One of such is Section 29(5) which provides as follows: “Any aspirant who participated in the primaries of the political party who has reasonable grounds to believe that any information given by his political party’s candidate in the affidavit or any document submitted but that candidate in relation to his constitutional requirement to contest the election 17 is false, may file a suit at the Federal High Court, against the candidate seeking the information contained in the affidavit is false”. This is a radical departure from the provisions of Section 31(5) of the Electoral Act, 2010 which gives locus standi to challenge any information given by any aspirant in his affidavit or any document to any person and such can be challenged at the Federal High Court, State High Court and High Court of the Federal Capital Territory. Under the new Law, such can only be challenged by an aspirant at the Federal High Court as provided under Section 29 (5) of the Electoral act, 2022. Section 153 of the Electoral Act, 2022 defines an aspirant as “ a person who aspires or seeks or strives to contest an election to a political office.”

There is need for one to point out clearly a crucial area as regards disqualification of any candidate who is aspiring to be elected into any elective post and the need to have the requisite qualification by the candidate or aspirant in order to avoid the pitfalls as held in the celebrated case of PDP VS. DEGI EMERIENYO (2021) 9 NWLR (PT, 1781) page 274 wherein the apex Court held as follows; “it is clearly fraudulent for one person to allegedly bear several names that he uses variously to suit changing environment” My candid recommendation/ advice, Your Excellency and Distinguished audience is that candidates or aspirants of political parties must be well screened in respect of their eligibility for an election even before screening committees are officially set up by the political party concerned and such nomination should not be based on Sentiments but on merit. Meritocracy should always be a yardstick for the nomination of aspirants and appointees into public office in the Federal, State and Local Government Civil or Public service.

I will not end this short conversation without imputing some words of wisdom thus; “the reward for having done something well is having done it” “there are many paths to the top of the mountain, but only one view.”

18 Your Excellency, if we are able to obey the rules and regulations relating to the conduct of elections in our country, we shall always reap the reward for having done something well and when we get to the top of the mountain, it is from only one view, the Electorate can see what has been done transparently by the Electoral umpire. Your Excellency, Distinguished Ladies and Gentlemen, I sincerely thank you for listening and for inviting me to this conversation to share some perspectives or thoughts on the Electoral Act, 2022

Otaru, a Senior Advocate of Nigeria delivered this as a lecture at a capacity building workshop on the Electoral Act, 2022 in Ilorin, Kwara state recently.


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