By Akintayo Balogun, Esq.
The Chairman of the Independent Electoral Commission (INEC) announced on the 8th of November 2022 that the Commission had been joined as Defendants in over 600 pre-election suits. These suits mostly arose from the primary elections of over 20 registered political parties that conducted their primary elections between May and June 2022. In addition to the statement, the Chairman of INEC stated thus; “Only two weeks ago, one political party served about 70 court processes on the Commission in one day seeking to compel us to accept the nomination or substitution of its candidates long after the deadline provided in the Timetable and Schedule of Activities for the 2023 General Election had elapsed. Some of the cases will go to the Supreme Court”.
Once a pre-election matter has been instituted to determine the proper flagbearer of a political party, the burden of determining the candidate of the party shifts from the party delegates to the court. It is rather unfortunate that candidates to represent political parties are no longer decided in the field of play by the voice of the delegates but are now being decided by what the court says it is. It is really going to be a pitiable sight at the Supreme Court when these cases move all the way to the single Supreme Court of the land. All 600 cases might not get to the Supreme Court, but at least, not less than 300 of these cases will find their way to the Supreme Court and the Supreme Court will be forced to determine the Appeals within 60 days of their being filed. Whatever the Supreme Court says become law. Whomever the Supreme Court recognizes as the party candidate becomes the flagbearer of the party irrespective of what had transpired at the primaries.
Gradually, the burden of determining flagbearers for political candidates has shifted from party delegates to the Judges and Justices of the various courts in Nigeria. This trend is dangerous and ought not to be. With this rather unfortunate trend, winning a primary election to become the flagbearer of a political party is just the beginning of another battle to retain the ticket on behalf of the party. The final conferment now lies in the court once the primaries are challenged. Since July 2022, we have been having several judgments coming from the various courts in Nigeria, either giving full recognition to the party’s candidate, nullifying an election, disqualifying a candidate that won the election, recognizing a runner-up, or recognizing a parallel election conducted by the same party on a different date or location. This is why the burden of determining political party flagbearers has shifted from the political delegates to the Judges and Justices.
From the various pre-election judgments delivered so far, some of the strong indications from these primaries are as follows:
- Political parties in Nigeria have failed woefully to conduct elections that are free and fair in many of the primary elections conducted around the country. Issues of over-voting, bias, and non-compliance with the Electoral Act have been prevalent leading to the cancellation of many of these results.
- Political parties conducted parallel primary elections in many states and are now forcing the authenticity of their primaries through the court.
- Political parties wilfully substituted candidates who were duly elected at the primaries without their knowledge and or consent in favour of their preferred candidates.
- Some political parties did not even conduct their primaries. Tickets were just handed over to preferred candidates as flagbearers of the parties.
- Political parties are desperately looking for a gateway into power, so they are deploying everything within their arsenal by the hook or by the crook, to ensure that a preferred candidate is foisted as flagbearers for the party.
- Political parties have political interests and political favourites as against the wish of party delegates.
- Some political parties, due to failure to do in-depth and proper screening, nominate candidates that have questionable antecedents, issues with falsification of credentials, age, results etc., and once these defects are noticed and allowed by the court, the party either loses their opportunity to present a candidate or the party is forced to conduct another election or is forced to recognize the runner-up in the primaries as the candidate of the party irrespective of what might have transpired at the primaries.
This trend is unfortunate, and it is destroying the political space in Nigeria. It is making a caricature of the activities of our political parties. However, on a broader view of this, the actions of these political parties show the level of decadence and desperation in our political system and it would be difficult, if not impossible to purge the political space of this pollution. A candidate might have won the primary election of his party but by virtue of disqualification or failure to carry out a certain function as required by the applicable rules, the victory of the candidate is either nullified and given to the runner-up at the primaries or the party is completely barred from contesting in the election. This situation has rendered the court the party delegate and not the delegate that came for the primaries to cast their votes.
To curb this trend. The 100% duty lies on the leadership of political parties in Nigeria and no one else.
- The ultimate requirement of impartiality, level playing ground, Integrity, sincerity, honesty of purpose, and fairness should be the bane of political parties in Nigeria. Until party officials deploy this to the conduct of their elections, judges would remain the ultimate party delegates. The most common suit in various courts is the substitution of candidates without their knowledge and consent. This shows the insincerity and bias for a preferred candidate by members of the political parties. This ungodly practice should stop.
- Screening of nominees by political parties should be taken with aggression. Every lacuna should be covered to ensure that rivals do not take advantage of the little loopholes to destroy the interest of the parties. Any candidate with strong defects to his qualification should not be allowed to participate in the primaries.
- On the side of the courts and the pressure that comes with political cases, the relevant laws should be amended to allow the commencement and determination of primary elections in both States and Federal High Courts to reduce the burden placed on the Federal High Courts. In 2022, all pre-election matters were instituted at the Federal High Courts in Nigeria to the exclusion of the State High Courts. I was recently privileged to be in a Federal High Court and the judge was lamenting as to how he had to write not less than 20 judgments and all must be delivered within the next two weeks as the required 180 days is said to elapse within those two weeks. The burden can be shared across the various States and Federal High Courts
- Furthermore, there is an urgent need to amend the Constitution in respect of primary elections. Appeals arising from primary elections should not enjoy a right of appeal all the way to the Supreme Court just as it is applicable for post-election cases. In post-election cases for example, appeals from all election tribunals terminate at the Court of Appeal, except for Governorship elections that start at the tribunal through to the Court of Appeal and to the Supreme Court. the Presidential Tribunal starts at the Court of Appeal and ends at the Supreme Court. So as it stands, it is only Governorship elections that enjoy the privilege of being heard at 3 different stages of the courts. This same rule should also apply to pre-election suits to reduce the burden on the Supreme Court.
Our Judges are not party delegates, a judge does not attend delegate meetings, and he does not listen to candidate manifestos, however, our political parties have turned them into one by virtue of their omissions and commissions. The party tickets that ought to be determined by the delegates have been carelessly handled and handed over to courts to determine the flagbearers of a party. Political parties need to sit up and do the right thing once and for all and to stop abdicating the roles of the delegates to the judges. Parties should stop substituting candidates without their knowledge and consent.
Judges should not be the determining factor for primary elections in Nigeria. Primary elections should be determined by the votes of party delegates.
Akintayo Balogun Esq., LL.B (Hons), BL, LL.M, is a legal practitioner in private practice and based in Abuja, FCT. A prolific writer, public affairs analyst and commentator on national issues.