‘INEC not Bound to Publish Candidates’ Names’

INEC national commissioner in charge of Information, Festus Okoye, speaks to Chuks Okocha on the nation’s electoral process, political parties’ primaries and submission of candidates names to the Commission. Excerpts:

What are the issues in political party primaries and the nomination of candidates?

Political party primaries and the nomination of candidates for various elective positions are governed by the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Electoral Act, 2022, the Regulations, Guidelines and Manuals of the Independent National Electoral Commission (INEC) as well as the constitutions, rules and regulations of the different political parties.

In carrying out its regulatory activities, it is constitutionally and legally imperative that the regulatory body must remain impartial, above board and act within the confines and ambit of the constitution and the law both in its monitoring activities and application of the law. Fidelity to the electoral legal framework is paramount in constitutional democracies founded as they are, on the rule of law and due process.

Therefore, an Electoral Management Body and in this particular instance the Independent National Electoral Commission must, on no account, much less on the basis of perceived infractions of the law by candidates and political parties, seek to exercise the powers donated to other agencies or organs of government by the constitution and the law.

Basically, the Constitution as well as the Electoral Act have assigned and delineated the powers of the Commission in the conduct of party primaries and the nomination of candidates. The roles assigned to the Commission are limited as the conduct of party primaries is basically and fundamentally within the domestic realm of political parties subject to their observing the tenets of the Constitution and the law. In other words, the law expects political parties to be democratic and act democratically in the conduct of their Congresses, Conventions, Meetings and Primaries.

The Constitution and the law expects and obligates political parties to abide by and respect their own rules, procedures and guidelines in the conduct of their primaries and nomination of candidates. The law and the Constitution does not permit the electoral management body to micromanage them. The law only mandates the Commission to monitor the conduct of the congresses, conventions, meetings and primaries, and to ensure that their activities are conducted in accordance with the Timetable and Schedule of Activities released by the Commission as well as the constitutive legal instruments guiding and regulating elections.

Can the Commission on its own disqualify a candidate or forcefully remove the name of any candidate nominated by a political party?

Who determines the validity or otherwise of party primaries? Is the Commission constitutionally and legally permitted to reject the list and personal particulars submitted by political parties?

These are the germane issues and a clear understanding and resolution of the issues requires an examination of the powers of the Commission in relation to the conduct of Congresses, Conventions and Primaries by Political Parties.

Section 82(1) of the Electoral Act, 2022 makes it mandatory that every registered political party shall give to the Commission at least 21days notice of any convention, congress, conference or meeting convened for the purpose of “merger” and electing members of its executive committees, other governing bodies or nominating candidates for any of the elective offices specified in the Act. Section 82(5) of the Act is clear on the consequences of non-compliance with the provisions of section 82(1) of the Act. The failure of a political party to notify the Commission of the conduct of activities listed in section 82(1) of the Act shall render the convention, congress, conference or meeting invalid. This is clear and needs no further elucidation.

Political parties understand this and the 18 registered political parties complied with the statutory notice required under section 82(1) of the Act. The further implication of failure of a political party to notify the Commission of the conduct of its congresses, conventions and primaries is that the National Chairman of the offending political party will be denied the access code to the Commission’s nomination portal and the party will not be in a position to upload the list and personal particulars of any candidate. 

In terms of the conduct of party primaries, the Electoral Act 2022 makes provision for three modes of primaries. A political Party may elect to conduct direct or indirect primaries. A party may also decide to conduct its primaries using the consensus mode. The mode of primaries is exclusively at the discretion of the political parties and the Commission does not dictate to political parties which mode to choose.

Is it constitutional for a political party to indicate it’s mood of primary election and later abandon it for another?

A political party cannot indicate the conduct of its primaries by one mode and turn around to use a different mode.  The Commission must be given the mandatory seven-day notice of any change in the venue, timing and mode of primaries. It is therefore mandatory for political parties seeking to nominate candidates for elections under the Act to hold primaries for aspirants to all elective positions, which shall be monitored by the Commission. For direct primaries, all registered members of the party shall vote for aspirants of their choice at a designated center at each ward of the Federation.

Indirect primaries are run through delegates while the consensus option requires the written consent of all cleared aspirants for the position indicating their voluntary withdrawal from the race and their endorsement of the consensus candidate. Where a political party is unable to secure the written consent of all cleared aspirants for the purpose of the consensus candidate, it shall revert to the choice of direct or indirect primaries for the nomination of candidates for the aforesaid elective positions.

What then are the consequences of non-compliance with these provisions?

A political party that fails to give the Commission the required 21days notice of its intention to conduct primaries and goes ahead to conduct “primaries” has removed itself from the ambit of the law and has disqualified itself from nominating candidates for the various elective positions. In other words, failure of political party to notify the Commission of its intention to conduct congresses, conventions, conferences or primaries renders such an exercise invalid. A political party that elects to conduct primaries outside the designated constituency for the conduct of primaries for the different constituencies has disqualified itself and is not expected to field candidates for the constituencies involved. At the end of political party primaries, the National Chairman and National Secretary of political parties that conducted valid primaries are legally bound to submit to the Independent National Electoral Commission the names of candidates with the highest number of votes as the candidate of the party. 

An aspirant that complains that any of the provisions of the Act and the guidelines of a political party has not been complied with in the selection or nomination of a candidate of a political party may utilize the provisions of section 84(14) of the Act and approach the Federal High Court for redress. In other words, where a political party fails to comply with the provisions of the Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in contention. At this point, all those that present themselves before their political parties are aspirants. Section 152 of the Act defines an “aspirant” as a person who aspires or seeks or strives to contest an election to a political office. It is the responsibility of the Commission to monitor the conduct of the primaries but it remains the exclusive responsibility of the parties to conduct their primaries.

The Commission monitors the primaries and issues its report, which is available to individuals, political parties and other stakeholders in the electoral process.

In other words, any individual can apply for the report of the Commission and it can be used in litigation.

A political party may submit the name and personal particulars of a candidate that did not meet the requisite constitutional and legal threshold and this may not be detected at the initial stage. But the submission under section 29(1) of the Electoral Act is only the beginning of due process and not the final list of candidates standing nominated. By section 29(3) of the Electoral Act, the Commission shall, within seven days of the receipt of the personal particulars of the candidate, publish it in the constituency where the candidate intends to contest the election.

After the conduct of primaries, those that emerge transmute to candidates. Section 152 of the Act provides that a candidate “means a person who has secured the nomination of a political party to contest an election for any elective office”. These are the persons whose names are submitted to the Commission as the candidates of the political party.

At the end of the primaries, a political party may elect not to submit the name of any of its candidates to the electoral management body. They are not constitutionally and legally obligated to sponsor candidates to all elective positions. For the national elections, a political party that conducted party primaries is required to submit the names of its Presidential and Vice Presidential Candidates, 109 Senatorial Candidates and 360 House of Representatives Candidates.

Section 29(1) of the Act makes it mandatory that political parties shall forward to the Commission the list and personal particulars of candidates that emerged from valid primaries.

Hence, at the conclusion of primaries, political parties retreat to their offices to compile the list of their candidates and their affidavits. Some of the political parties use the opportunity to resolve their disputes before the period for the submission of the list of candidates as prescribed by law and the Timetable and Schedule of Activities as released by the Commission. 

Thereafter, the Commission makes available to the National Chairman of the registered political parties an access code to the Candidates Nomination Portal for the upload of nominated candidates. The National Chairman and National Secretary of each party shall jointly sign the covering letter for the upload of the list and personal particulars of the nominated candidates.

The Commission is not involved in the upload. It is the responsibility of the political parties to generate and upload the list and personal particulars of candidates from their offices or operational centers. At this point, it is impossible for the Commission to know the names that will be forwarded by the political parties. The expectation is that political parties shall submit the names of candidates that emerged from validly conducted primaries.

The legal obligation of the Commission under section 84(3) of the Act commences the moment the portal of the Commission shuts down at 6pm on the 10th day of June 2022 for Presidential and National Assembly elections and at 6pm on the 15th day of July for Governorship and State Assembly elections. A political party shall only submit the particulars of candidates that emerged from valid primaries.

Is INEC by law obligated to publish the personal particulars of all candidates submitted by parties?

The Commission is therefore not obligated to publish the personal particulars of a nominated candidate where the political party did not conduct primaries or where a political party conducted primaries and the name of a candidate that did not participate in the primaries was uploaded. The candidate may sneak in undetected and this is where the responsibility of the aggrieved aspirants or candidates sets in.

Section 285 of the Constitution (the fundamental law of the land) classifies all the activities conducted or being conducted within this period as pre-election activities.

 What is pre-election matters. How does INEC handle such matters?

It states clearly that “pre-election matter” means any suit in which: – (a) an aspirant who complains that any of the provisions of the Electoral Act 2022 or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party for conduct of party primaries has not been complied with by a political party in respect of the selection or nomination of candidates for an election;

(a) an aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his/her participation in an election or who complains that the provisions of the Electoral Act 2022 or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection or nomination  of candidates and participation in an election; and

(b)        a political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparations for election.

Why is it that INEC don’t publish some of the names of candidates. Is it legal to do so?

The Commission is on firm legal ground not to publish the personal particulars of a candidate if such a candidate is not a product of party primaries. The Commission is on firm legal grounds not to publish the personal particulars of a “candidate “that did not emerge from valid primaries. This is the import of section 84(14) of the Act that clearly provides that where a political party fails to comply with the provisions of the Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue.

It is different when a political party nominates an under aged or a foreigner as its candidate in clear violation of the Constitution. In such instances, it is the Constitution and the political party that has disqualified the candidate. But the Commission’s Portal has made it impossible for any political party to nominate an under aged. It is in the interest of the electoral process to nudge and encourage the Commission to do the right things in accordance with the law and the Constitution.

It is not in dispute that constitutionally a political party can challenge the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election.

The Electoral act and the constitution have stopped INEC from disqualifying  candidates

If the Commission is divested of the power to disqualify, the constitution will not provide remedy for disqualified candidates.

It is therefore important to understand the electoral legal framework guiding the nomination process as well as the attendant procedural issues in the process.

In the current dispensation, procedurally, the onus of generating and uploading the names and particulars of nominated candidates rests with political parties. It is only when the nomination portal closes down signifying the termination of the upload process that the relevant sections of the legal regime kick into place to ascertain the veracity of the nominations uploaded by candidates. The Commission is therefore on firm legal grounds not to publish the personal particulars of candidates that did not emerge from valid primaries. The Commission is also empowered not to publish the particulars of candidate that on the face value failed the constitutional threshold for nomination.