By Chief J. Aka Maduakolam

Introduction:

The Electoral Act 2022 came with far-reaching innovations designed to deepen democratic principles and help engender more credible elections in Nigeria. One such innovation is mandating political parties to maintain a register and to make available to INEC the register 30 days before their primaries, congresses or conventions. Although the provision is mandatory, it does not stipulate immediately the consequence(s) of failure to comply with that requirement of law. The implication is that political parties’ leadership may continue with their arbitrariness of nominating even a person who was never a member of the party, even on the day of the primaries or even days after, hiding under the cloak of the party’s supremacy. The decision in Okolie v. Elumelu seems to be poised to end that impunity. This article critically appraises that decision while submitting that unless that decision is upheld, political parties may be emboldened to disregard the provisions of the law and undermine the Constitution without consequences.

Background:

The result of the House of Representatives Election for Aniocha/Oshimili Federal Constituency of Delta State came to many by surprise. Until the result was announced, nobody believed that Mr Ndudi Elumelu, an astute politician and the minority leader of the House of Representatives in the 9th Assembly, would ever lose an election, let alone to a civil servant. It was surprising that Mr Ngozi Okolie of the Labour Party scored 53, 879 votes as against 33, 466 secured by Elumelu. It was Peter Obi’s effect, many said. Immediately result was announced, Mr Elumelu headed to the Tribunal to challenge the outcome of the election. At the hearing, Mr Elumelu clutched on the qualification of Mr Okolie and argued that Mr Okolie is a civil servant and is a person whose name is not contained in the membership register transmitted to INEC pursuant to S.77 of the Electoral Act 2022. Thus, he failed to meet the qualification threshold enshrined in s.65 and 66 of the 1999 Constitution.

Delivering its judgement on 24th July 2023, the Tribunal found merit in the petition, marked EPT/DL/HR/06/2023, and filed by Hon Elumelu. It held, intra alia, that the petitioner proved his case on the point that Hon Okolie was not duly sponsored by the Labour Party because his nomination offended sections 65 and 66 of the 1999 Constitution as amended.

Perhaps, the surprise that greeted the judgment dwarfed the excitement that met the outcome of that election. Many commentators, including imminent scholars and jurists, have faulted that decision maintaining that party membership is the internal affairs of a political party which no court has jurisdiction to inquire into. They argue that a long list of judicial authorities suggests that Mr Elumelu lacks the locus standi to challenge membership and sponsorship of Hon Okolie. This article argues that the critics of the judgment on the issue of qualification have misconstrued it. I, however, contend that the petitioners and the Tribunal are on firm grounds to determine the petition in line with relevant laws as they have done.

CRITICAL ANALYSIS OF THE RELEVANT LAWS:
By virtue of Sections 65 and 66 of the Constitution, a person seeking election to the office of member House of Representatives must, to be qualified for the election, be a member of a political party (not political parties) and sponsored by that party (not any other party). S.66 of the Constitution forbids a civil servant from contesting for election without resignation. The relevant provisions of the Constitution are reproduced thus:

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 35 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, 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 the election;

(g) he is a member of a secret society;

(h) he has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunals of Inquiry Law or any other law by the Federal or State Government which indictment has been accepted by the Federal or State Governments respectively; or.

(i) he has presented a forged certificate to the Independence 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;

(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 section “appeal” includes any application for an injunction or an order certiorari, mandamus, prohibition or habeas corpus, or any appeal from any such application.

By S.134 of the Electoral Act 2022, the first ground for challenging an election relates to qualification, and it behoves a candidate in an election or a political party which participated in the election to challenge an election through a petition on that ground. In other words, by a combined reading of sections 65 and 66 of the Constitution and sections 133(1) and 134 (a) of the Electoral Act 2022, a candidate in the election or a political party that participated in the election can bring a petition asking the Court to determine if the person declared a winner in the election (i) was a member of a political party and/or (ii) is sponsored by that party (iii) was a civil servant by the time he was presented for election, and/or has duly resigned before seeking for public office. This is exactly what the Petitioners did in the instant case.

From the evidence adduced in the case, the Court found that Hon Okolie was not a member of LP as his name was not contained in the membership register of LP submitted to INEC pursuant to S.77 of the Electoral Act, 2022. The Court also found that he did not resign from civil service in record time as required by s.66 of the Constitution. In other words, he did not resign 30 days before the LP primaries. In fact, it is evident that he resigned in July while the primaries were done in May. The simple implication is that contrary to sections 65 and 66 of the Constitution, Hon Okolie was not a member of a political party and was still a civil servant in the eyes of the law at the time he was sponsored by LP to contest the election.

Hon Okolie and his lawyers cited numerous authorities to support their postulations that the issue of qualification is a domestic affair of the political party, which is not justiciable, and where it is, falls within the province of pre-election matters. They cited Onuoha v. Okafor (1983) 2 NCLR 244, Amaechi v. INEC & Ors (2007) 18 NWLR (pt 1066) 42, Abubakar v. INEC (2020) 2 NWLR (pt. 1737) 164, Wada v. Bello (2016) 17 NWLR (pt 1542) 374 and APM v. INEC (2023) 9 NWLR (pt. 1980) 419 in support of their position.

With every respect, they misconstrued the authorities such that a proper appreciation of the authorities would have led them to a better understanding of the issues. In the first place, it is trite that cases are authorities for what they decide such that it is not helpful to flout authorities where the facts and circumstances of cases are different. See PDP v. INEC (2018) LPELR 44373 (SC) and Olley v. Tunji (2015) 10 NWLR (pt. 1362) 374.

Secondly, as we shall see anon, none of the authorities cited by Hon Okolie supported their position as none of the authorities decided where a person’s qualification is challenged in an election petition. There is no authority saying that the Tribunal lacks jurisdiction to entertain questions of qualification. In fact, Wada v. Bello (supra), cited by people, stated clearly, that once an issue of qualification is raised in an election petition, it must relate to the Constitutional requirement, which must not be and can not be derogated from.

Curiously, people relied so much on the authorities of Onuoha v. Okafor (supra), Amaechi v. INEC & Ors (supra) and APM v. INEC (supra), which are all pre-election cases in seeking to fetter the jurisdiction of this Court. Are they not aware that the authorities of Wambai v. Donatus & Ors (2014) LPELR 23303 (SC), Okunola v. Faleke (2015) LPELR 26030 (CA), Augustine v Yusuf (2016) LPELR 26049 (CA), Dangana v Usman (2013) 6 NWLR (pt. 1349) 50 and even Wada v. Bello (supra) are clear that qualification is a ground for challenging election? In fact, in Fayemi v Oni (2020) 8 NWLR (pt. 1726) 222, the Supreme Court emphatically stated thus, “ qualification of a candidate is both pre and post election matter that can be challenged either in the Federal High Court, State High Court or Tribunal” (Emphasis supplied).

People erroneously cited Abubakar v. INEC (supra) and Wada v. Bello (supra) as having departed from Wambai v. Donatus & Ors (supra). This is simply not true. In Abubakar v. INEC (supra), the Apex Court stated that ‘Disqualification of candidate on grounds of false information in his Form CF001 as pre-election matter’ but went on to decide on merit the challenge to Buhari’s educational qualification in that case. The decision in Abubakar v INEC(supra) is flawless and compatible with Wambai v. Donatus & Ors (supra) because, as stated in Wada v. Bello (supra), the qualification contemplated in s. 134(a) of the Electoral Act must relate to the constitutional qualification in sections 65, 106, 131 and 177 of the 1999 Constitution.

With the above said, the question to be decided by Tribunal, as in this case, is whether Hon Okolie belongs to a political party and is sponsored by that particular party she belonged to. If the answer is negative, it goes without saying that she is not qualified under the Constitution for the office she has vied for. In the instant case, ample evidence existed to show that she is not a member of LP as his name was not in the register submitted by the party to INEC. Instead of explaining away this defect, the camp and many lawyers were carried away with the euphoria that membership is a prerogative of the party. There is no problem. Nobody is questioning the authority of the party to admit any person as their member. Nobody is also questioning the authority of a party to give a waiver. But since the law has required every party to submit a list of their members, it behoves every party to make sure that the person they have given their ticket is a member and that they can prove that the person is their member. This is a Constitutional issue which admits no ambiguity.

CONCLUSION

By way of conclusion, what remains to be said is that it should be noted that S.77 of the Electoral Act 2022 is an entirely new provision not contained in any old electoral Act. It has been argued that the provision is inserted to curb the arbitrariness of a few party executives who wake up and give a party ticket to anybody, sometimes the highest bidder, without consequences. We have seen instances where a person appears on the day of primaries and takes the ticket. Party faithful usually feel hurt. The law has come to save them. The law seems to assert its knowledge that it is the party’s prerogative to give tickets to anybody, but it should make sure the person is a member. Let his/her name at least be in your register! Is this too much to ask?

It will be recalled that the hero of the Labour Party, Mr Peter Obi has said severally that any person who wishes to be called His Excellency must ensure that the process through which he emerged is Excellent. It does appear that the tribunal is calling all who wish to answer Honourable to ensure that they emerge from an honourable process. Such an honourable process must necessarily include ensuring that all the relevant laws are complied with. One such law is to ensure that the Honourable is a member of the political party that sponsors him. It is elementary that membership registers contain the names of members. Members are only those whose names are found in the register.

I, therefore, look forward to further scrutiny of the decision of the Tribunal at the appeal. But I must hasten to add that the case is not as simple as many commentators make it seem. There are speculations that this authority may open a floodgate that will affect every other labour candidate. This may not be necessarily so. It can only affect those persons whose elections are not only competently challenged on that point but also those persons whose qualifications are proved with cogent evidence to be below the benchmark of the Electoral Act. As a fan of Peter Obi, I wish Hon Okolie the best of luck on appeal!

Chief J. Aka Maduakolam, MCIArb, is a legal practitioner and a partner at Clay & Amicus Solicitors No 28/51 Court Road, Awka. 08038785496 [email protected]