A Curious Look at the Concept of Placeholder

 

The controversy surrounding the concept of placeholder, which some presidential candidates of political parties has  resorted to, could trigger a floodgate of litigations, especially since the Independent National Electoral Commission has described it as unknown to the country’s constitutional and legal framework, Alex Enumah writes

The concept of a placeholder that some presidential candidates have resorted to has raised questions on the validity of this move in accordance with the Electoral Act. While the presidential candidate of the All Progressives Congress (APC), Senator Bola Ahmed Tinubu had named Kabiru Masari as placeholder to stand in temporarily, pending when he would nominate substantive vice presidential candidate, the Labour Party submitted the name of the Director-General of Peter Obi Campaign Organisation, Dr. Doyin Okupe, as the interim vice-presidential candidate of the party.

Even though all political parties have till August to withdraw the names of such running mates and substitute them with substantive ones, many Nigerians have faulted the concept, describing it as unknown to the 1999 Constitution and the Electoral Act.

Section 142(1) of the 1999 Constitution (as amended) clearly provides that the presidential candidate nominates his running mate from the same political party; nowhere did it and the Electoral Act provide for a placeholder.

While the Constitution and Electoral Act, do not provide for a placeholder, Section 31 of the Electoral Act 2022 allows a candidate to withdraw his/her nomination in writing, and such withdrawal must be communicated to the Independent National Electoral Commission (INEC) by the political party not later than 90 days to the election.

Specifically, Section 33 of the Act then allows the political party to submit the name of a fresh candidate within 14 days of the withdrawal of the former candidate by conducting fresh primaries, or in the case of a vice presidential candidate or deputy governor, by selection.

By ensuring that the so-called placeholder signs an undated letter of withdrawal in advance, when APC and Labour Party then finally decide on their real vice presidential candidates, the provisions of Sections 31 and 33 of the Act can be set in motion as late as November 25, 2022, 90 days to the presidential election on February 25, 2023.

While some lawyers have contended that the law permits presidential candidates to present surrogate or placeholder running mates to INEC and replace them with substantive ones later, many others are indifferent, while others have expressed their reservations to the concept.

But a source close to Tinubu said there was nothing wrong in what they did, adding that they submitted the name of a placeholder before the window of INEC deadline closes.

According to the source, “Tinubu will use that time to continue consulting with the party, governors and the president. He is taking his time and doesn’t want to rush it. He just wants to carry everybody along. Even the elections will take place in 2023 and the campaign won’t start until September. The window period is still long. There is no need to rush anything about it.

“I think we have fulfilled our own part by submitting the name as required before the INEC deadline closes. He is not really a surrogate per se. He is just holding forth. The electoral act stipulates that candidates have the window period to substitute up till sometime in August.”

The Head of the Legal Directorate of the Tinubu Campaign Organisation, Babatunde Ogala (SAN) stated that the Electoral Act 2022 allows a political party to change its candidates up to when it is three months to an election.

Another SAN, Wole Olanipekun, stated that nothing was legally wrong with the placeholding of vice-presidential candidates to beat an election timeline.

When asked why the party submitted the name of a placeholder, National Chairman of the Labour Party, Julius Abure, said it was not an unusual practice in the electoral process.

But INEC said the concept of “placeholder” for vice-presidential candidates “has no place in our constitutional and legal framework”.

INEC’s Commissioner for Information and Voter Education, Festus Okoye, while reacting to the trend in a chat on ARISE NEWS Channel on Monday, said the placeholder is a unique Nigerian invention for which the commission’s law has no provision. He added that as far as the commission was concerned, there’s no form submitted by the presidential candidates where they said ‘we’re submitting this person’s name as a space or placeholder’.

Okoye added that the commission can only replace a candidate if the person writes a “sworn affidavit stating that he is withdrawing from the race within the time frame provided by the law”.

“As far as we are concerned, there’s no form submitted by the presidential candidates, where they said, ‘we’re submitting this person’s name as a place or space holder’.  The issue of space or place holder is a unique Nigerian invention that has no place in our constitutional and legal framework.

“The law says that as a presidential candidate, you must nominate an associate to run with you. And as far as INEC is concerned, the presidential candidates have submitted their associates to run with them in the presidential election. Political parties’ candidates have submitted names of associates to run with them, and that is the position of the law as of today and nothing has changed.”

“For there to be a substitution of a candidate, the vice-presidential candidate must write to the INEC, with an affidavit stating that he is withdrawing from the race within the time frame provided by the law, as that is the only way there can be a substitution of candidates.”

Corroborating INEC’s view, constitutional lawyer, Mr. Inibehe Effiong, disclosed that the concept of a “placeholder” used by Tinubu and Obi, is unknown to the constitution and the Electoral Act. According to Effiong, when a name is submitted to INEC, the name’s bearer automatically and legally becomes the vice presidential candidate of the party simpliciter.

“However, Section 31 of the Electoral Act, 2022 allows for withdrawal of candidacy. Unlike the position under the repealed 2010 Electoral Act where parties were allowed to substitute for “cogent and verifiable” reason, the new Act prohibits substitution; subject to two exceptions. By Section 33 of the Act, a political party shall not be allowed to change or substitute its candidate except by reason of death or withdrawal. Section 31 requires a candidate seeking to withdraw to do so in writing, and must deliver the withdrawal letter personally to the party,” he said. 

The lawyer further noted that where a candidate has properly withdrawn in accordance with the law, the political party is required to inform INEC within 14 days and also conduct fresh primary to produce a fresh candidate and submit the name to INEC. This is a risky political arrangement. It is not rooted in law. The individuals so nominated are the vice presidential candidates of the APC and the Labour Party. However, Tinubu and Obi and their parties can substitute them if the above conditions are met by the placeholders.

“The risk with this arrangement is that if the “place holders” subsequently fail or refuse to withdraw as expected or agreed in writing after they’ve been validly nominated, the parties and the presidential candidates will have no choice but to stick with them till the election.”

Citing judgment of the Supreme Court in the case of AGF V. Atiku Abubakar where it stated that a vice president is the vice president of the country; not of the party, Effiong argued that the suggestion that a vice presidential candidate can be substituted at will is erroneous, adding that the position of the vice president is elective, not appointive.

“The suggestion that a vice presidential candidate can be substituted at will is erroneous. The position of Vice President is elective, not appointive. As the Supreme Court correctly stated in AGF V. Atiku Abubakar, a VP is the Vice President of the country; not of the party.

“It should also be noted that by Section 142 of the 1999 Constitution, a person cannot be validly elected as President unless he nominates another candidate as his associate from the same political party to run with him to occupy the office of vice president if they’re elected.

“In summary, a vice presidential candidate is a candidate. Thus, the conditions for valid withdrawal of candidacy under Sections 31 and 33 of the Electoral Act, 2022 are equally applicable to a vice presidential candidate.

“The difference is that the process of substituting a vice presidential candidate upon valid withdrawal does not involve the conduct of a primary election. The reason is that vice presidential candidacy is birthed by and incidental to the nomination of a presidential candidate.

“Presidential candidates, political parties, the media and the public shouldn’t trivialise the process of nominating a vice presidential candidate. I understand that parties resorted to this ‘aberration’ to beat the deadline of INEC. As earlier explained, this is not without risk,” he said.

Many fear that controversy around the issue may generate a barrage of litigations especially since INEC has declared that the concept is unknown to law.