P. D. Pius, Esq.

We witnessed the last election and saw the legal loopholes that went with it. One important case was the Atiku Abubakar and Peter Obi election petitions. One important question in these cases was whether BAT was qualified to contest the election.

Both cases were dismissed on different grounds. One of the grounds for dismissing the cases being that challenging qualification to contest election was considered to be a pre-election matter that only members of the same political party who are aspirants in the election can raise it. This implies that Peter Obi, Atiku Abubakar who are not members of APC cannot challenge the qualification of an APC Presidential Aspirant even if APC presents a mad man or nominates a mad man. Will you say this is a good law?

Let us look at section 29 of the Electoral Act 2022. There is a short history behind this section 29 of Electoral Act 2022. It used to be section 31 of Electoral Act 2010. In the 2010 version, it gave every Nigerian the right to challenge the qualification of every aspirant irrespective of whether he is in your political party or not. It was through this provision that PDP used same to snatch Governorship victory in Bayelsa state from APC in 2020. Fast forward to 2022 Electoral Act, this section 29 was now amended to say that only an aspirant who participated in primary election of a political party can challenge the qualification of candidate of that party. This is sad if you ask me.

With the new position of section 29 of Electoral Act 2022, it means that only a party member can challenge the qualification of the party candidate and such party member must be an aspirant in the election. You all know that party members are birds of a feather, they flock together. The earlier position that empowers all Nigerians to be interested in the quality or qualification of all candidates irrespective of political affiliation was taken away. In other words, instead of opening the gate of participation in politics by screening documents of all candidates to all Nigerians, that important duty of scrutinizing documents of candidates for election is now exclusive left for their patronizing party members. Will you prefer none APC members like Atiku or Obi to be permitted to challenge the qualification of APC candidates or you want only APC members to be have the right to challenge qualification of their candidates?

Let us go back to section 29 of the Electoral Act 2022. Subsection (6) of this section is one example of poor legislative drafting. The poverty of thought here will be better understood with an illustration. In this subsection the National Assembly is telling the Court that if an APC aspirant takes an APC candidate to court and the Court agrees to disqualify the APC candidate, that the court should disqualify both the APC candidate and his party APC and stop them from contesting the election and the court should go ahead to declare as winner of the general election, the candidate of another political party e.g PDP that may have emerged second in the general election as winner. I think you should be confused by now. How does the National Assembly expect the Court in deciding pre-election case, that is before the general election, to declare candidate of another political party winner of general election that is yet to be conducted? Is that not 7th world wonder?

Now, if on the other hand, the National Assembly claims that their reference to “the candidate with second highest number of votes” is a reference to aspirants of same political party who are contesting the Party’s ticket, then how can the Court declare such a runner winner of his Party’s primary when the same subsection is saying both the initial candidate and his political party be disqualified. For instance, if John is disqualified as candidate of PDP, the subsection further provides that PDP should be disqualified too. This will mean that if Abubakar was the runner up to John, he cannot be declared candidate of PDP since PDP has already been disqualified. The subsection is not only poorly written, it presents one of the most ambiguous provisions of the law given Courts the liberty to blow hot and cold at same time when it gets to interpretation.

Let me quote a part of the subsection thus “…The Court shall issue an order disqualifying the candidate and the sponsoring political party and then declare the candidate with second highest number of valid votes and who satisfies the constitutional requirement as the winner of the election.” This section 29 is basically a pre-election provision. The section is talking about pre-election case, when general election is yet to be conducted. How can it then authorized a court in a pre-election to declare some winner in general election? If on the other hand you say that it does not refer to general election but primary election, how can it state that the political party be disqualified and included again at same time?

A discerning mind will find that section 29 of Electoral Act 2022 is bad piece of legislation and should be quickly amended. I will x-ray other provisions of the Electoral Act 2022 deserving of amendment subsequently.