By Ahmod Babatunde Ariyibi

Introduction

The first thing one needs to understand is that the enactment of any law is not made just for fun, and whatever the provisions of such law entail; it must be studied and understood to the last letter as ignorance of the law is not an excuse. Also, any law in existence that is amended or repealed, the innovations introduced by that amended law or the new law in lieu of the repealed law must be appreciated. Those innovative introductions came to take care of some lacunae or to cure some mischiefs in the old law and that is what some provisions of the Electoral Act, 2022 (“the Act”) came to address.

Overview of the Act

Many legal practitioners and analysts have given a vivid overview of the Act, particularly on the difference between the new Act and the old Act or the innovations seen in the new Act that was not in the old Act[1] such as section 84(8) and (12) of the Act and issues abound in those provisions creating upheavals for political parties.[2] Those new provisions have been challenged in our Courts and discussion on them has been over-flogged, hence, the author’s discussion on those provisions is beyond the scope of this article, but it is important to note that the Supreme Court has struck out the suit challenging section 84(12) of the Act.[3] Here, the article focuses more on section 33 of the Act on the change or substitution of the name of a candidate already submitted to the Independent National Electoral Commission (“INEC”) and the procedural conditions the provision stamped or introduced.

Submission cum Change or Substitution of the Name of a Candidate by a Political Party

According to section 29(1) of the Act, all political parties are mandated to submit the names of their candidates duly elected vide valid primaries not later than 180 days before the date appointed for a general election under the Act. For ease of reference, the section states thus;

“Every political party shall, not later than 180 days before the date appointed for a general election under this Act, submit to the Commission, in the prescribed Forms, the list of the candidates the party proposes to sponsor at the elections, who must have emerged from valid primaries conducted by the political party.”

It was based on the requirement and compliance with the above section that made INEC set Friday, the 17th day of June 2022 as the deadline for every political party to submit the name of their candidates vying for various political offices in the coming 2023 general election in Nigeria.[4]

In other to meet the above deadline, many political parties submitted the names of their candidates on the eve of the deadline or on that same day.[5] Due to the swift steps taken, some political parties were boxed into the corner as they have missed the opportunity to take advantage of the old practice under the old Act when it comes to the change or substitution of a candidate.

The old practice is otherwise termed a “Space-holder” or “Placeholder” arrangement and it simply means the submission of a candidate in the interim to meet the deadline set by INEC and later change or substitute the name of the candidate already submitted for the preferred candidate of their choice. Although this practice is not stated in all the laws regulating elections in Nigeria, political parties have found solace in playing this political game, particularly under the repealed Electoral Acts, and have gotten away with it.

Under the old Act[6], it was the law that a political party cannot change or substitute a candidate except if the candidate dies or voluntarily withdraws from the race and it stopped there. The old Act provides:

“A political party shall not be allowed to change or substitute its candidate whose name has been submitted under section 31 of this Act, except in the case of death or withdrawal by the candidate.”[7]

There are different instances where political parties were able to put the provision of the old Act into practice and the most celebrated one was that of Kogi State when Prince Abubakar Audu died and was replaced with Governor Yahaya Bello.[8] In the case of Faleke v. INEC[9], where this practice was challenged before the Court, the Court upheld the practice as follows:

“As stated earlier, as at the time of Prince Audu’s demise the election into the Governorship of Kogi State was inchoate. Section 33 of the Electoral Act clearly provides an exception to the provisions of section 31 of the Act in the case of death or withdrawal by the candidate. In the instant case, the death of the Governorship candidate before the conclusion of the election necessitated his being substituted by another candidate.”

However, this practice is one of the mischiefs that the extant Act came to address under the same section 33 of the Electoral Act. In the new Act, the section accommodated the conditions stipulated under the repealed Act that a political party may change or substitute the candidate already nominated with another candidate provided the earlier candidate submitted voluntarily withdraw from the race or died. However, the new Act went beyond that and provides a big clause as a proviso to the above that where the name of any candidate already submitted withdrew or died and the party wants to change or substitute that candidate as stated earlier, such political party is mandated to conduct a FRESH PRIMARY ELECTION WITHIN 14 DAYS of such withdrawal or death. For the avoidance of doubt, Section 33 of the Act provides:

“A political party shall not be allowed to change or substitute its candidate whose name has been submitted under section 29 of this Act, except in the case of death or withdrawal by the candidate:

Provided that in the case of such withdrawal or death of a candidate, the political party affected shall, within 14 days of the occurrence of the event, hold a fresh primary election to produce and submit a fresh candidate to the Commission for the election concerned.”[10]

What the proviso wants to achieve now is that it is not business as usual that a political party will just change or substitute the name of a validly nominated candidate for another candidate. Therefore, THREE (3) CONDITIONS are gleaned from section 33 of the new Act thus:

  • A political party cannot change or substitute the name of a candidate already submitted to INEC except if the candidate earlier nominated voluntarily withdraw his candidacy or died.
  • Even if the earlier candidate that the political party submitted withdrew or died, there is no automatic change or substitution of the candidate for another candidate UNTIL and UNLESS that political party conducts a FRESH PRIMARY ELECTION to field in a new candidate validly nominated from the fresh election.
  • The fresh primary election is not open to delay as it must be conducted WITHIN 14 DAYS of such withdrawal or death.

From the above conditions, whether the conditions are tenable or otherwise, it is still subject to judicial interpretation by the Court. However, political parties are advised to trade with caution because the law is new and may hunt any political party pulling old stunts if care is not taken. The reason for this is not far-fetched as seen in the case of Hassan v. Aliyu & Ors[11], where Per Muntaka-Coomassie, JSC (as he then was), while deciding on substitution of a candidate under the old Electoral Act 2006, held:

“No doubt the provisions of Section 34(2) of the Electoral Act 2006, is a new innovation in our electoral law, which is meant to cure the mischief and injustice that a candidate who laboured and won a party’s primary election to contest in an election would be substituted with a candidate who either lost in a primary election or did not participate in the primary election at all. It prevents the high-handedness of a political party to unilaterally substitute a candidate in an election without due process, by showing a cogent and verifiable reason for making such substitution. Hence, when a candidate has won its party’s primary election and his name submitted to INEC, such candidate can no longer be substituted unless cogent and verifiable reasons are given for such substitution. Where such reasons are not shown the said substitution would be declared null and void by a competent Court of law.” 

Placeholder Arrangement vis-à-vis Running Mate Candidacy

Dissecting section 33 of the Act further, a person cannot contest in a general election or be considered as a party’s candidate unless he participated in the primary election or was duly nominated by his political party following the laws in place.[12] However, we have many aspirants who contested the presidential primary election leaving other political offices for others to contest on a placeholder arrangement. Immediately after they lose the primary, they came back to reclaim a mandate they never participated in its primary election.[13] This practice may be an exercise in futility if the right step is not taken before the 2023 general election, just as seen in the 2019 election.[14]

In the case of change or substitution of the running mate of a presidential or governorship candidate under section 33 of the Act, some have argued that the section only affects the presidential or gubernatorial candidate that withdrew from the race or died. In other words, the withdrawal or death of either a presidential or governorship candidate calls for conducting a fresh primary election as they were the ones duly elected through the party’s primary while their running mates were handpicked by the presidential or gubernatorial candidate or their party. On a contrary view, by the proviso of the section under reference, a political party cannot change or substitute either the presidential candidate or its running mate and the same also applies in the case of a gubernatorial candidate or his running mate.

The submission on this is that under sections 142 and 187 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), a presidential or gubernatorial candidate cannot be considered as validly nominated and (or) elected until he has a  running mate, as the validity of the former sits on the validity of the latter and vice versa. This means that whatever affects the presidential or gubernatorial candidate also affects his running mate and whatever affects the running mate also affects the presidential or gubernatorial candidate. Section 142 of the Constitution states:

“In any election to which the foregoing provisions of this part of this chapter relates, a candidate for an election to the office of the President shall not be deemed to be validly nominated unless he nominates another candidate as his associate from the same political party for his running for the office of the president who is to occupy the office of the vice president and that candidate shall be deemed to have been duly elected to the office of the vice president if the candidate for the election to the office of the president who nominated him as such associate is duly elected as president in accordance with the provisions aforesaid.”

Hence, at this pre-election stage up until the day of declaring a candidate as the winner of a general election, both the presidential or gubernatorial candidate and their running mates run a joint ticket and our Courts had made it clear that their candidacy is joint and inseparable, both of them swim and sink together at the stage of contesting the election until after being validly declared as the winner of the general election before they step into different shoes.[15] A good example is the case of PDP v. Biobarakuma Degi-Eremienyo[16], whereby Mr. David Lyon and Biobarakuma Degi-Eremienyo contested as Governor and Deputy Governor of Bayelsa State. They both won the election, but on the eve of their inauguration, their election was nullified due to the sin of the running mate (Biobarakuma).

Conclusion

According to section 84 of the Act, particularly subsections (1) and (13) of the Act, political parties are mandated to conduct a primary election which must be monitored by INEC, and since the primary election and its monitoring are considered as part of the pre-conditions to a valid general election, failure of a political party to do so means that the party did not participate at all in the general election even if that political party submitted the name of a candidate to that political office.

Also, in the light of the new Act, INEC has the power not to include that name as one of those vying for that office and such political party candidacy shall be declared null and void where the party or INEC decides to retain the name. Conclusively, political parties must appreciate all the innovations in the new Act and be guided accordingly so as not to fall victim to circumstances come to the 2023 general election. As for the change or substitution of a candidate’s name, the rush made in the ones submitted earlier before the deadline given may not be corrected as it is no use crying over spilt milk, but there is a room for caution before the next deadline of 15th July 2022 as a stitch in time saves nine.

Ahmod B. Ariyibi, Esq. is an Associate at Synergy Attornies. His areas of interest include; Dispute Resolution through Advocacy, Corporate and Commercial Law Practices, Labour/Employment Law, Aviation and Maritime Law, Real Estate Investment, Intellectual Property, Digital Development, Project and Human Resources Management.

References

Statutory Authorities

  • Constitution of the Federal Republic of Nigeria 1999 (as amended)
  • Electoral Act, 2022
  • Electoral Act No. 6, 2010

Judicial Authorities

  • Faleke v. INEC (2016) 18 NWLR (Pt. 1543) 61 @124.
  • Hassan v. Aliyu & Ors (2010) LPELR-1357 (SC) at Pp. 51-52 Paras B-A.
  • Kubor & Anor v. Dickson & Ors (2012) LPELR-9817 (SC).
  • PDP v. INEC (1999) 11 NWLR 200 @239-240.
  • PDP v. Biobarakuma Degi-Eremienyo (2020) 9 NWLR (1781) 274.

Literatures/Online Digest

 

[1] The old Act was the Electoral Act No. 6, 2010 and it was repealed by the Electoral Act, 2022.

[2] See the article titled, “Section 84 (8) of Electoral Act, 2022, party primaries and 2023 general elections” by A.J. Owonikoko, Esq. SAN. Accessed 24th June 2022 via https://www.vanguardngr.com/2022/05/section-84-8-of-electoral-act-2022-party-primaries-and-2023-general-elections/.

[3]Electoral Act: Supreme Court Strikes Out Buhari’s Suit Challenging Section 84(12); https://www.channelstv.com/2022/06/24/electoral-act-supreme-court-strikes-out-buharis-suit-challenging-section-8412/ accessed 24th June 2022.

[4] This deadline was for Presidential, Senatorial, and House of Representatives elections, while INEC set Friday 15 July 2022 for Governorship and House of Assembly elections-https://www.vanguardngr.com/2022/06/2023-inec-gives-parties-deadlines-to-send-names-of-candidates-running-mates/, accessed 24th June 2022.

[5]https://www.thisdaylive.com/index.php/2022/06/16/to-beat-inecs-deadline-tinubu-quietly-submits-forms-includes-place-holder-as-running-mate/ accessed 24th June 2022.

[6] Electoral Act No. 6, 2010.

[7] Section 31 of the old Act was in tandem with section 29 of the new Act.

[8]https://www.channelstv.com/2015/11/30/kogi-election-apc-adopts-yahaya-bello-as-substitute-for-abubakar-audu/ accessed 24th June 2022.

[9] (2016) 18 NWLR (Pt. 1543) 61 @124.

[10] Underlined mine for emphasis.

[11] (2010) LPELR-1357 (SC) at Pp. 51-52 Paras B-A.

[12] Section 29 Electoral Act. See also the case of Kubor & Anor v. Dickson & Ors (2012) LPELR-9817 (SC).

[13] The senatorial saga in Yobe State and Akwa Ibom State is apposite. See https://punchng.com/i-wont-step-down-for-lawan-yobe-senatorial-candidate-insists/ and https://www.premiumtimesng.com/regional/south-south-regional/536034-2023-akpabio-to-run-for-senate-after-stepping-down-for-tinubu.html accessed 24th June 2022.

[14]https://punchng.com/breaking-supreme-court-nullifies-apcs-candidates-elections-declares-pdp-winner-of-zamfara-polls/ accessed 24th June 2022.

[15]PDP v. INEC (1999) 11 NWLR 200 @239-240.

[16] (2020) 9 NWLR (1781) 274.