How Breach of Pre-election Practice Direction And Electoral Act Threaten 2023 Elections

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In what appears to be the average Nigerian’s penchant to thwart any process, it is becoming cogent and verifiable that there is a high level of collusion, conspiracy and compromise of the Federal High Court of Nigeria’s pre-election practice direction 2022.

With litigants breaching procedure, suggestive of alleged collusion with some staff of the election management body, there are fresh fears that the 2023 general elections may not turn out the way most Nigerians are expecting it to.

This is because contrary to the provisions of the pre-election practice direction as spelt out by the Hon. Justice John Terhemba Tsoho, The Chief  Judge, Federal High Court  of Nigeria, the rules are being breached with reckless abandon, leading to a surfeit of cases numbering over 600 – at the last count, that is.  Some of these cases, too, are a consequence of the non-adherence of the Independent National Electoral Commission, INEC, to some provisions of the Electoral Act 2022.

This report presents some parts of the practice direction and the Electoral Act 2022 and drill-down on aspects which are being breached by politicians, judiciary and INEC, thereby creating a muddle in the process.

Section 84(1) Nomination of candidates by parties

Section 84(1) of the Electoral Act, 2022, regarding nomination of candidates by parties states, unequivocally: ”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”.

The import of this section is that there is contingent compulsion that political parties fielding candidates shall, must and necessarily hold primaries to all elective positions which shall, must and necessarily be monitored by the Commission.

Section 29(1) Submission of list of candidates and their affidavits by political parties.

Section 29(1), regarding submission of list of candidates and their affidavits by political parties, states that ”Every political party shall, not later than 180 days before the date appointed for a general election under this Act, submit to the Commission, in the prescribed Forms, the list of the candidates the party proposes to sponsor at the elections, who must have emerged from valid primaries conducted by the political party.” But in some instances, the mandatory 180 days is being flouted.

This section also places a condition on the parties to submit the list of candidates, but qualifies the nature and context of their emergence as candidates.  The section says the candidates must emerge from valid primaries.  The implication is that if a candidate proposed by any political party emerges from a primary that is not deemed valid, such a candidate cannot and must not be allowed to stand for any election.

What this section attempts to cure by insisting that INEC shall monitor primaries, is to allow for an independent and authoritative assessor who would validate any party primary as meeting the statutory requirements of the activity.  Before now, political party bigwigs engaged a whimsical, nay, despotic mode in the emergence of candidates for offices.  Party leaders determined, in most cases, without any form of pretence to election or party primary, who becomes a candidate.  Therefore, the framers of this Act chose to infuse sanity into the process, hence the insertion of the phrase ”…shall be monitored by the Commission”.

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Now, the question is, what makes a primary valid?

Section 84(13) (Still on Nomination of candidates by parties)

Section 84(13) provides the remedy to the question.  The section states that ”Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue”.

The major provision of the Electoral Act 2022 in respect of conduct of party primaries is spelt out in Section 84(1); and the provision makes it mandatory that INEC must monitor party primaries.  Verily, the leadership of INEC publicly warned political parties that any primary election not monitored by it, a report of which must be sent to its national headquarters, would not be accepted.  The Commission encouraged its Resident Electoral Commissioners, RECs, to do the needful in this regard diligently.  The Commission also sent staff from its headquarters to support the state offices in this monitoring endeavour.

In fact, in a Saturday, July 9, 2022, Press Release, titled, CLARIFICATION ON ISSUES RELATING TO CANDIDATE NOMINATION AND RELEASE OF CERTIFIED TRUE COPIES OF DOCUMENTS, and signed by Festus Okoye Esq., National Commissioner and Chairman, Information and Voter Education Committee, INEC reassured Nigerians that it would abide by the spirit and letters of the law.

According to Okoye, ”the attention of the Commission has been drawn to speculations circulating online on the outcome of some of the recent primaries conducted by political parties and related issues.  In particular, allegations intended to impugn the integrity of the Commission have been made in respect of Akwa Ibom North West and Yobe North Senatorial Districts.

“To set the record straight”, Okoye continued, ”the Constitution of the Federal Republic of Nigeria mandates the Commission to monitor the organization and operation of political parties, including their finances, conventions, congresses and party primaries.  In line with its constitutional and legal obligations, the Commission deployed monitors to the various constituencies and received reports of such exercise.”

Now, the clincher: Okoye asserted, ”In relation to the primaries for Akwa Ibom North West and Yobe North Senatorial Districts, the Commission stands by the monitoring reports received from our State offices.  For this reason, the Commission did not publish the personal particulars of any candidate for the two constituencies at variance with the State reports. Right now, the Commission is funtus officio in the two cases….”

He then advised that aggrieved parties are at liberty to approach the court and seek redress.

But has INEC honoured the provisions of the law and its own public commitment?

Although Okoye was to later declare on national television that the Commission is not bound by reports from the state, a position which contradicted his press statement, he was to clarify that between the intervening period of the reports and the issuance of a court order, the Commission is bound to obey the court at any instant time as a responsible institution guided by law.

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Yet, another national commissioner, Mohammed Haruna, is of the view that INEC does not have the powers to reject candidates.

But Section 84(13) states clearly that “Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue”.  This provision confers on INEC powers of admissibility or denial of a candidate if the provisions of the Act are followed or if the provisions of the Act are not followed, respectively.

Why the plethora of pre-election litigations?

There appears not to be a systemic clarity on the application of the letters of the Electoral Act 2022 either by error of ommission or commission.

Whereas Professor Mahmood Yakubu, the National Chairman of INEC has consistently made the case that the election management body will continue to do its best to give Nigerians an election not only free, fair and credible next year, but one that is also seen to espouse the virtues of a free, fair and credible election.  This is also a sentiment President Muhammadu Buhari echoed, after signing the Electoral Act 2022, into law.

However, its policy of jettisoning the reports from its RECs about the party primaries monitored in some states of the federation, seems to cradle muddle.

Some of the pre-election litigations that Chairman of INEC complained about arose from the Commission not following through on its own commitment.  Indeed, while some politicians who have a very unhealthy relationship with decency continue to appease crookedness as a deity, INEC’s seeming irresoluteness and complaisance, in some instances, have not been helpful.

Take, for instance, the raging controversy in the Akwa Ibom chapter of the All Progressives Congress, APC, and INEC’s acceptance of list of candidates for election in the state.

The state has a 26-member House of Assembly chamber.

Vanguard has been made to understand from the national headquarters of INEC that of the 26 primaries held to determine the APC candidates, the report of the monitored primaries sent to Abuja, only the names of two of those who emerged from the 26 primaries are among the final 26 candidates published by INEC for the APC.  By implication, the 24 candidates who emerged from the valid primaries monitored by INEC are potential litigants to reclaim their mandate as candidates.  By the same token, there are 10 House of Representative seats in the state.  Of the 10 valid primaries for the House of Representatives conducted by the APC and monitored by INEC in Akwa Ibom State, only two of the 10 names are published as candidates.  This also throws up another eight potential litigants who would want their rights restored as validly nominated candidates.

For the senatorial primaries in the state, specifically the Akwa Ibom North West senatorial candidacy, the burden of correctness hangs over INEC.

According to the report sent to INEC headquarters and sighted in Abuja by Vanguard, only two senatorial primaries were conducted. Akwa Ibom North West has become so controversial and is already one of the over 600 litigations about party primaries.

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From Akwa Ibom State alone, the number of potential litigations regarding pre-election matters, barring horse-trading steeped in possible arm-twisting, blackmail and intimidation, may not be less than 35.  Those going to court, curiously, are those deemded to have participated in the valid primaries monitored by INEC.

Pre-election Practice Direction

In order to strengthen the process leading up to the 2023 general elections, the Chief Judge of the Federal High Court, Honourable Justice John Terhemba Tsoho, in his wisdom, on Tuesday, June 28, 2022, set the Federal Republic of Nigeria, Federal High Court of Nigeria (pre-election) Practice Direction, 2022.

This Practice Direction is meant to serve as a guide to potential litigants and judges on certain rules to be observed in handling pre-election matters as defined by Section  285(14) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

The Practice Direction has 11 Rules viz:

1.  Objectives and Guiding Principles

2.  Applicability

3.  Parties

4.  Filing of Process

5.  Service of Process

6.  Hearing

7.  Interlocutory  Applications

8.  Miscellaneous

9.  Interpretation

10.  Citation

11 . Commencement

Rule 1, which deals with Objectives and Guiding Principles of the Preactice Direction gives an overview of the intendment of the rule:

OBJECTIVES

AND GUIDING PRINCIPLES

1.-(1)  The purpose of this Practice Directions is to-

(a)  provide  for a fair,  impartial  and expeditious  determination  of pre-election cases;

(b)  ensure that in all election matters, the parties focus on matters which are genuinely in issue;

(c)  minimize the time spent in dealing with interlocutory matters;

(d)  ensure that the possibility  of settlement  is explored  before the parties go into hearing;

(e)    minimize undue adjournments and  delays in the conduct of matters.

Rule 3 deals with parties to any suite and all of them must be served:

PARTIES

3.  A  party  challenging   the  conduct  or  outcome  of  a  Primary Election shall join as a Respondent in the suit, the person who emerged  winner  of  the  said  election  or  whose  name  was forwarded by his political party to the Independent National Electoral Commission (INEC).

Rule 4(2)(d) insists that litigants must swear to an affidavit that any matter being brought before any court is not already being heard by another court:

FILING OF PROCESSES

4. -(1 )Every    pre-election    matter    shall   be   commenced    by   an Originating  Summons   as  specified  in  Forms  3,  4  or  5  of Appendix   6  to  the  Federal  High  Court  (Civil  Procedure) Rules, with such variations as circumstances may require.

(2) The Originating  Summons shall be accompanied by:

(d)  an affidavit  of non-multiplicity  of action  on the same subject matter.

The rules above are alreay being flouted such that litigations are being brought before the court and identified parties in the suite as spelt out in Rule 3 are not being made aware.

Similarly, the principle of non-multiplicity of action is being observed in the breach rather than observance.

(Vanguard)

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