(Being the text of a paper presented by Ekemini Udim, Esq at the June 2022 Quarterly Meeting of the Young Lawyers’ Forum of the Nigerian Bar Association, Uyo Branch)

Preamble

I received a call from the Chairman of the Young Lawyers’ Forum, Uyo Branch, Akwa Ibom State on Tuesday 31st May, 2022 at about 8 am notifying me of the request of his EXCO that I should kindly address a gathering of young lawyers in the State on a topic to be chosen by me. I quickly informed him that the time between his call and the date fixed for the lecture is too short for me, considering my other engagements. But he insisted that I should kindly create time to address this gathering. I am glad to be here today. By the categorization of the Nigerian Bar Association, young lawyers are lawyers between 1 to 7 years post call. I moved out of this bracket several years back but I cannot forget my years in the bracket. It is the foundation laying bracket for the young lawyer. It is the time to learn the rubrics of law-in-practice as against the theories of the classroom. In this bracket there is excitement, there is hope, there are high expectations, but there are also the disappointing moments which you will all agree with me. This is where a lot of lawyers run away from the profession but I thank you all for staying resolute and doing your bid to contribute your quota for the development of law and society, with the hope that things will surely get better. For those of you that are in other endeavours outside the core practice of law, permit me to say that you are still in the right place at the right time. Strive as much as you can to make a mark at wherever you find yourself. As stated earlier, I am glad to be here with you today.

Back to the topic

When it is said in law that something is ‘’sui generis’’ it simply means that such thing is ‘’in a class of its own.’’ It means that such a thing may not necessarily have similarities with what is applicable elsewhere. I hold the view that Nigeria’s democracy is indeed, sui generis. It belongs to a class of its own and one may be wasting his time looking for similarities elsewhere.

Just when we thought we had seen it all, the unexpected occurred; only ad hoc delegates were approved for the primaries of political parties. A lot of people were taken aback by this development. It has never happened since Nigeria’s Independence in 1960. A lot of people became automatically disenfranchised and fell into the category of spectators to the electoral process. They could only look but could not participate in the process. Sitting Governors were not spared; they could not vote at the primaries of their political parties. Sitting Members of the House Assembly, Members of the House of Representatives, Senate and the most enlightened crop of citizens in the entire country could not vote to choose the persons to represent their political parties in next year’s general election that will be holding across Nigeria. The news was shocking and initially thought to be unbelievable. But the reality today is that, all the major political parties in the country conducted their primaries with ad hoc delegates only. All statutory delegates were excluded.

How it all started

It all started with the press release by the Peoples’ Democratic Party (the PDP) made on May 20th, 2022 with the title ‘’Use of Elected Delegates for the Primaries and National Convention.’’ The release was signed by Honourable Umar Bature, National Organising Secretary of the party, and in it, members of the party were informed amongst others that, only three Ad Hoc Delegates per Ward, elected at the Ward Congresses shall be eligible to vote as delegates in the primaries to be conducted by the party for the election of candidates to be presented to the electoral body as flagbearers of the party for the respective elective offices. In the first paragraph of the press release it was stated unequivocally that, the reason for resort to the use of ad hoc delegates only was, the provision of Section 84 (8) of the Electoral Act, 2022 recently signed into law by the President.[1] This decision was immediately followed by the ruling political party in the country, the All Progressives Congress (APC) and later followed by other political parties. At the time of the presentation of this paper, all registered political parties in the country have conducted their primaries, with ad hoc delegates only.

But What exactly is the provision of this Section 84 (8) of the Electoral Act, 2022?

Here is the provision: ‘’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.’’ It is this provision that was interpreted by the National Working Committee of the PDP and of the other political parties to mean that, only the ad hoc delegates are qualified to vote at the primaries.

Here is their logic: that the above section talks about ‘’democratic election of delegates to vote at the convention, congress or meeting.’’ The parties then interpreted this to mean that, anyone who was not ‘’elected from a democratic process with the specific mission of serving as a delegate at the primaries’’ did not qualify to vote at the primaries of a political party. The parties then said that, the only category of persons who are usually elected for the specific mission or purpose of serving as delegates at primaries are, the ad hoc delegates. Hence the decision to make use of only this category of delegates.

This interpretation was expectedly not accepted by a lot of persons. For those that rejected the interpretation, it was argued that, members of the EXCOS of the party – from the Ward level to the Chapter up to the State EXCO – are usually elected through democratic processes for which reason they should be allowed to equally vote as delegates. This position was rejected by the leadership of the parties on the ground that, though these persons were elected through democratic processes to serve in the EXCOS, they were not elected for the specific purpose of serving as delegates to vote at the primaries of the parties.

For this reason, the members of the party EXCOS, serving members of the State House of Assembly, National Assembly, Governors, Deputy Governors, former Governors, former Members of the State and National Assemblies (usually known as statutory delegates) were all excluded from the primaries.

Ladies and Gentlemen, this interpterion can be seriously contested but the reality is that, for the primaries of all the political parties in the build up to the 2023 general election, the decision of the NWC of the parties carried the day to the extent that only ad hoc delegates were allowed to vote. This indeed was the shocker of the Century. No one saw it coming (except perhaps the person who deliberately drafted the highly contentious provision of the Electoral Act).

Gbajabiamila said that the same provision was there in the 2010 Electoral Act

When it dawned on the country that statutory delegates were not going to vote at the primaries and that indeed, the PDP had conducted its first round of primaries with only ad hoc delegates, the Speaker of the House of Representatives, Femi Gbajabiamila made a press release wherein he submitted that the contentious Section 84(8) of the Electoral Act, 2022 did not in any way exclude statutory delegates from voting at the primaries. In other words, that the section was wrongly interpreted by the political parties. He then added that there was a similar provision in the 2010 Electoral Act under which regime statutory delegates were not disallowed from voting at the primaries. But was the Honourable Speaker correct about this statement?

To answer this question, there is need to reproduce Section 87 (7) of the 2010 Electoral Act herein. The Section provided thus: ‘’A political party that adopts the system of indirect primaries for the choice of its candidate shall clearly outline in its constitution and rules the procedure for the democratic election of delegates to vote at the convention, congress or meeting, in addition to delegates already prescribed in the Constitution of the party.’’

Ladies and gentlemen, a careful reading of the above will reveal that, the underlined portion of the provision above was removed from the 2022 version of the Electoral Act. In other words, the provisions are not the same. The Speaker was thus not correct in saying that the now highly contentious provision of Section 84(8) of the Electoral Act is not new. It is new and not the same with the provision of Section 87(7) of the 2010 Act. Though the provisions are largely similar, there is the exclusion of the phrase ‘’in addition to delegates already prescribed in the Constitution of the party’’ from the 2022 Act, thus giving the impression that only ad hoc delegate could be used for the primaries.

The question here is: Who removed this vital phrase from the new Electoral law and what was his intention? It can thus be said that even the Speaker of Nigeria’s House of Representatives may have been taken by surprise by the reality of the impact of Section 84 (8) of the Electoral Act, 2022.

With the release of a time table by the notional electoral body and timeframe for the conduct of primaries and submission of names of elected candidates, time became too short for any realistic changes to be effected to the Electoral Act to accommodate statutory delegates. Though the section was hurriedly amended and presented to the President of the country, the President refused to sign the new amendment, leaving the parties with no option than to abide by their interpretation of section 84(8) of the new law and make use of only the ad hoc delegates for the election and, for the first time in the history of Nigeria, only a handful of persons (ad hoc delegates) voted at the primaries.

The selection process left much to be desired

The process of selection (or ‘’election’’) of the ad hoc delegates leaves much to be desired. The political leaders had a field day and simply nominated their loyalists as ad hoc delegates. Some nominated their cooks, others nominated their drivers. Some nominated their wives, others nominated their concubines. Some nominated themselves, others nominated their siblings. Mechanics, hairdressers, okada ridders, kuli-kuli traders, all made the list of ad hoc delegates and became qualified to elect the next set of leaders for Nigeria. For the PDP, only 774 ad hoc delegates were accredited to vote at its presidential primary.[2] At the presidential primary of the APC, 2203 ad hoc delegates were accredited to vote.[3] The reality is that, in a country of more than 200 Million people, less than 3,000 persons (ad hoc delegates) have made a major decision about who becomes the next President of Nigeria and Nigerians have no option than to vote at the general election for the candidates as presented to us by the ad hoc delegates.

I am not in any way implying that this category of persons do not have what it takes to participate in the electoral process. I am rather saying that, most of these persons knew little or nothing about the sacred responsibility they were called upon to discharge for Nigeria. A lot of them did not emerge through any democratic process; they were simply handpicked by their masters or political leaders or by anyone who had the privilege of compiling the ad hoc list. Worst still, most of these ad hoc delegates were induced with huge sums of money and given clear instruction to cast their votes for the candidate favoured by the establishment. In the end, all manner of persons have emerged as candidates of the various political parties and will become Nigeria’s next set of leaders.

Most of the persons who bought forms to contest at the primaries did not know the persons that were to serve as ad hoc delegates of their parties. This is because, some political parties kept the list close to their chests and never made any publication of the names. Others barely published the names while the primaries were ongoing or few hours to the primaries. The aspirants – except those that were favoured by the establishment – had no real opportunity of meeting with the ad hoc delegates to seek to convince them through superior submissions on why the delegates should vote for them and what they will offer to the people of Nigeria if elected. It was a case of the unknown minority deciding the fate of a country of over 200 Million persons in a manner never before seen in the history of Nigeria.

At the national convention of the APC for instance, most of the ad hoc delegates could not understand the lingua franca of the country (English language) for which reason the masters of ceremony had to give instructions to them in various languages before they could understand what was going on (that is, if they ever understood what went on). Some delegates could not even write the names of the persons they were to vote for and so had to be assisted to write. The other political parties also had to grapple with the same thing. This explains the background and intellectual capabilities of persons who were drafted to choose for the larger majority of Nigerians, candidates for the general election for the office as sensitive as the office of the president of the largest country in Africa.

The impacts

Several party members across the country became disenfranchised and disillusioned. They became spectators and helplessly watched the primaries from the side-lines. They had no options than to recede to the backseats and watch the unknown minority lead them into the political future of the country.

The State Governors had a field day and with their influence, could command the emergence of any one whom they favoured, whether such person was acceptable to the people or not. All what was needed was to give instruction to the political leaders of the various areas to bring the ad hoc delegates together in a given location, tell them who to vote for and possibly convey them in chartered buses to the venue of primaries where they were to vote strictly as directed. The ad hoc delegates were regimented and never allowed to deviate from instruction or have a mind of their own in the voting process.

There might be apathy in the general election as most committed party members became highly disappointed with the turn of events and may simply refuse to participate in the critical stages of the electoral process, except deliberate efforts are made to re-connect them to their parties before the election.

Moreover, most ad hoc delegates voted not on the basis of their ability to make superior choices but on the basis of financial inducements occasioned by the dollarization of the electoral process. We read the case of the man who returned from the presidential primaries of the PDP and shared money and gift items worth millions of Naira to his friends and associates in appreciation for giving him the opportunity to serve as ad hoc delegate. It was such a national embarrassment for Nigeria. The other political parties also paid money and induced the ad hoc delegates. I dare say that, the adulteration of the electoral process with financial inducement is about the most unfortunate thing to happen to Nigeria as a country.

Also, a large chunk of well-informed citizens were disfranchised and thus not given the opportunity of participating in the leadership selection process at the most fundamental level. Serving and past Governors, Deputy Governors, Member of the Legislature and many others are in this category. They could not vote. This has never happened before. It goes without saying that most of these persons have the intellectual capabilities to possibly decide better on who becomes the elected candidates of the political parties for presentation to Nigerian Citizens for the general election.

The way forward and Recommendations for Nigeria

Nigeria must encourage popular participation in its electoral process. Democracy must be for the people and by the people. It is incongruous that a handful of persons under the umbrella of ad hoc delegates would be the ones to choose for the larger majority of over 200 Million Nigerian citizens, who becomes President, Governor, and law maker, especially as most of these persons became delegates under very controversial and highly questionable circumstances.
When the French Political Philosopher, Historian and Jurist, Jean Montesqui propounded the theory of separation of powers and gave the role of law making to the legislature, he clearly intended that the legislature should make laws that will engender progress and development. He never intended that the law makers should make laws that are self-serving, retrogressive and undermining of national interest. A law which wittingly or unwittingly excludes a large number of the cream of society from participating in the electoral process is certainly not a good law. Such law does not deepen our democracy in any way. If anything, it draws us back in our democratic experience. Our lawmakers should thus make people-oriented laws and laws that will help deepen our democratic experience and bring the needed development to the country.
Moreover, electronic voting needs to be urgently introduced into Nigeria’s electoral process, even at the level of the primaries by political parties. If this becomes the case, there will be room for a large majority of party faithful to participate actively in the leadership selection process. That way, better leaders will be elected to govern the affairs of Nigeria. This reminds of how it used to be in the Nigerian Bar Association where many barmen and women were not able to participate in the process of who becomes President of the Bar and who occupies other offices. It took an Augustine Alegeh, SAN to introduce electronic voting and change the narrative for the benefit of the Association. Today, every member of the Bar who is up to date with his membership requirement has the opportunity to participate in choosing who becomes our leaders, courtesy of electronic voting. I call on Nigeria to take the cue from NBA and introduce electronic voting to our electoral process.
The now highly contentious Section 84(8) of the Electoral Act, 2022 needs to be amended and signed into law. In the amendment, words and phrases which have the propensity of disenfranchising citizens from the electoral process ought to be avoided.
The National Assembly should have an active legal drafting department made up of lawyers with vast experience in legal drafting and possibly litigation. None lawyers such as persons who have served for many years in the legislature and gained appreciable cognitive experience in law making, can also be recruited into the department. That way, a lot of future problems would have been avoided through thorough professional scrutiny of sections of bills before they become laws.
I must thank you all for giving me your kind attention. I am confident that with sincere efforts on the part of every player, the Nigerian story can ultimately change for the better.

Thank you and God bless all.

Ekemini Udim is a Barrister, Solicitor and Senior Partner of Justice Chambers. He is the author of Practice Guide on No Case Submission, Principles of Garnishee Proceedings in Nigeria, Trial Within Trial in Criminal Proceedings, Principles of Bail in Nigeria and, Practical Approach to Effective Cross-Examination. He is a regular Commentator on Radio, TV and other media platforms. He is a Co-Host on Legally Speaking (aired on Planet 101.1 FM every Friday from 5 – 6 pm) and, Host of You & The Law (a platform hosted on YouTube for regular discussion on legal issues in the breaking news and other issues of law affecting everyday living). Ekemini is reachable via email at ekeminiudimforjustice@gmail.com

[1] See: ‘’2023 – Only Elected Delegates will Vote at Our Primaries, Convention – PDP’’ Premium Times of 21 May 2022, accessible at: https:/www.premiumtimes.com/new/topnews/531466-2023-only-elected-delegates-will-vote-at-our-primaries-convention-pdp.html

[2] See: ‘’PDP Convention – 774 Delegates Accredited to Vote’’ Premium Times of 28 May 2022

[3] See: ‘’APC Presidential Primaries – 2203 Accredited Delegates Set to Vote’’ Independent Newspaper of 8 June, 2022