Why is INEC Recklessly Striving to be Neckless? (Part 1)
Introduction
The Electoral Act, 2022, was welcome with much enthusiasm across Nigeria for its innovative provisions, especially in the area of empowering INEC to, among other things, transmit results of elections electronically from the polling units to INEC server. See Section 52(3) of the Electoral Act. INEC was also given more express powers, over the conduct of primaries by political parties (See generally Parts II, IV, V and VI). Under the new Electoral Act, the powers of INEC have now gone beyond their traditional circumscribed role of merely monitoring parties primaries. To what extent has this new role been appreciated by INEC itself, which is the sole regulator of political activities in Nigeria? Why does INEC, which is saddled with conducting, monitoring and executing elections and democracy, be eager to recklessly make itself neckless through body language and the action of some of its officers?
In this piece, we shall be examining the extent of the powers of INEC to conduct elections, monitor party primaries, and where necessary, reject candidates of any party that emerge from an invalid primary. We shall also be looking at how INEC has so far played that role, and how INEC has attempted in some cases, to surprisingly shy away from that responsibility. It is amazing how INEC can voluntarily abdicate powers, freely donated to it by the Constitution and the Electoral Act. We shall examine different scenarios of the exchanges between Mr Mike Igini (the other is Mr Festus Okoye) and Obong Godswill Akpabio on the one hand, and Muhammad Kudu Haruna, an INEC Commissioner. On song are the tug-of-war scenes between Ahmad Lawan and Bashir Machina on matters concerning place holders; and INEC’s verdict on same. While Igini poured tons of ink and make several television appearances emphasising the new legal regime which strengthens INEC’s powers over election matters, the likes of Muhammad Haruna are busy defanging INEC and rendering it prostrate.
The Power of INEC Over Election Matters INEC’S Wide Powers
INEC has tremendous powers to:
a. Organise and supervise all elections to the offices of the President and Vice-President, the Governor and the Deputy Governor of a State, and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation.
b. Monitor the organisation and operation of the political parties, including their finances; conventions, congresses and party primaries;
c. Arrange and conduct the registration of persons qualified to vote and prepare, maintain and revise the register of voters for the purpose of any election under the Constitution.
d. Delegate any of its powers to any Resident Electoral Commissioner;
e. Conduct voter and civic education;
f. Promote knowledge of sound democratic processes;
g. Conduct any referendum required under the Constitution or an Act of NASS and
h. Carry out such other functions as may be conferred upon it by an Act of the National Assembly.
INEC’S Powers Over Party Primaries
The conduct of primary elections, is the business of political parties. However, by virtue of Item F (15), Part 1 of the Third Schedule to the 1999 Constitution, INEC has the constitutional power to monitor the organisation of party primaries. Section 82(1) of the Electoral Act 2022 provides that a political party that intends to conduct primaries shall give INEC at least 21 days Notice, for the purpose of nominating candidates for any of the elective offices specified under the Act. The conduct of elections in Nigeria is regulated by the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and more specifically, by the Electoral Act, 2022 and subsidiary legislation, such as Election Guidelines made thereunder. The powers of INEC to monitor elections in Nigeria have never been in doubt, even if not directly enacted in statues. That power was recently fully enacted in Section 84(1) of the Electoral Act, 2022. The section provides as follows:
“A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions which shall be monitored by the Commission”.
From the above provisions, it is clear that INEC has the statutory powers and responsibility to monitor the primaries of all political parties, without any exception. The provision is mandatory. Indeed, the monitoring of party primaries for the nomination of candidates for an election is not only mandatory, but also necessary for the validity of such primaries themselves.
The power of INEC to monitor party primaries had earlier been given judicial imprimatur by appellate courts in a plethora of cases. In APC & ANOR v EMAKPOR & ANOR (2019) LPELR – 48299 Page 18-20, per his Lordship, EKPE, J.C.A, held, on the duty of INEC to monitor party primary elections, thus:
“There is however, no gainsaying the fact that the Electoral Act itself has placed a duty on INEC to monitor party elections. This has been done to ensure that the overriding Constitutional and indeed, statutory obligation of political parties to elect their leaders on a democratic basis, is complied with. I am in total agreement with the view held by the lower Court, that it is a mandatory provision which should never be left to the whims and caprices, or even the fancies of the strongmen of the party. Let me clearly state here and without any prevarication, that the 1st Appellant (APC) was wrong by submitting the name of the 2nd Appellant to the 3rd Respondent (INEC), rather than the name of the 1st Respondent who undoubtedly won the election, as its candidate for the House of Assembly elections for Uvwie Constituency.
This singular act of the 1st Appellant has been frowned upon in several instances by the Supreme Court, where party strongmen, as in the instant case, impose their candidates on the party in an undemocratic manner. See HON. (MRS) DORATHY MATO v HON. LORWASE HERMAN MEMBER & 2 ORS. (APPEAL NO. SC 733/2016 DELIVERED ON 23/6/17).
I also tow the line of the court below, that a person that contests and wins a party primary election is entitled to reap the fruits of his victory. I must also add before I finally lay down my pen, that the 3rd Respondent (INEC) clearly shirked its responsibility by accepting the name of the person who obviously did not win the said primary election. In general, political parties are enjoined to do the right thing at any point in time, to ensure that injustice is not perpetrated at any point in time. See ATT. GEN. OF THE FEDERATION v ATIKU ABUBAKAR (2007) ALL FWLR (Pt. 375) 403.”
For the purpose of giving effect to the powers given to INEC in Section 84 of the Electoral Act 2022, Section 82 thereof makes it mandatory for the political party intending to conduct its party primary to give notice of at least 21 days to INEC, as regard the date and venue for the conduct of such primary election. This is necessary, to enable INEC mobilise a team to monitor the party primary of that party. While interpreting a similar provision contained in Section 85 of the Electoral Act, 2006, the Supreme Court held that, it is mandatory for the political party to inform the INEC of its intention to conduct a primary. The Apex Court, per OGUNTADE, J.S.C, in AMAECHI v INEC & ORS (SC) (2008) LPELR – 446, Page 4, Paragraph A, held thus:
“Under Section 85 of the Electoral Act 2006, it is mandatory that political parties inform INEC of the date and time of holding a convention or congress summoned for the purpose of nominating candidates for any of the elective offices under the Electoral Act, 2006. If parties were not to be bound by the results of their party primaries in the nomination of candidates at any level, why would it be necessary for INEC’s representatives to be present at and monitor the proceedings of such congress? It seems that the obligation on the parties to inform INEC of such congresses, was to ensure that INEC would know and keep a record of candidates who won at the primaries.”
The Apex Court has also emphasised that the reason why it is necessary for INEC to monitor party primaries, is for the parties to be bound by their own primaries. Thus, the monitoring of primaries by INEC is not only to give credibility to such party primaries, but also to give effect to the result of the primaries. This is so, because INEC is both the regulator and enforcer of electoral activities.
Consequences of Holding Primaries Not Monitored by INEC
There is no gainsaying the fact that the provisions for the INEC to monitor party primaries, were meant to cure a certain mischief which was inherent in the political system. Even the law recognises the fact that the conduct of primaries ought to be the prerogative of the political parties; yet, the legislature deemed it necessary to give INEC the power to monitor the primaries. This is to prevent the strongmen and women of the political parties from hijacking the electoral processes system, and acting arbitrarily in total disregard of the provisions of the Constitution and the Electoral Act in picking the party’s flag bearer. This was the mischief that the provisions for INEC to monitor the party primaries, were meant to cure.
However, the question still remains: what are the consequences where a political party fails to comply with the provisions of the law requiring INEC to monitor party primaries? What adverse consequences would the party suffer? This was answered as follows, by the Court of Appeal, in MUNIR & ANOR v EMMANUEL & ORS (2015) LPELR-25970(CA) per SAMUEL CHUKWUDUMEBI OSEJI JCA, who held thus: in relation to a similar provision in Section 85(1) of the 2010 Electoral Act as amended.
“The provisions of Section 85 of the Electoral Act as above set out has been the subject of judicial interpretation in a number of cases, and I must add here that subsection (1) is very clear and unambiguous to the effect that every registered political party shall give the Commission at least 21 days notice of any convention, congress, conference or meeting convened for the purpose of electing members of its executive committees, other governing bodies or nominating candidates for any of elective offices specified under the Act. The word “shall” as used in the provision connotes imperativeness or mandatoriness in implementation, and does not give room for discretion, neither did it provide for any other option. In other words, the notice to the Independent National Electoral Commission (INEC) by any political party intending to hold any convention, congress, or meeting convened for the purpose of electing members of its executive committee or other governing bodies or nominating candidates for any of the elective offices specified under the Electoral Act shall be not less than 21 days, and accordingly, any activity carried out pursuant thereto without the requisite notice to INEC shall be a nullity for non-compliance with the provisions of Section 85(1) of the Electoral Act. See ATAI v DAGANA (2012) INEC LAW REPORT (Vol. 1) Page 823. Furthermore, once the statutory requirement of Section 85(1) is satisfied by the issuance of at least 21 days notice to the INEC, a political party has the clear path to proceed with the convention, congress meeting etc, and do not have to be concerned whether or not INEC attends, given the provision of Section 85(2) which gives INEC the option whether or not to attend any such convention, congress or meeting by the use of the permissive word “may”. Therefore, the attendance of INEC to any meeting of a political party does not validate any breach of the provisions of Section 85(1) of the Act, as held by the Trial Tribunal. This is therefore an erroneous interpretation of the said provision, and the venture into the unwarranted terrain of mischief rule of interpretation by the Trial Tribunal when the words are very clear and unambiguous, constitutes an attempt at blend oil with water.” (To be continued).
