How Electoral Act Expanded Scope of Pre-Election Litigation

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By George Olatunde Babalola

Election litigation is bound to occur in an electoral process. This is because before every general elections cycle in Nigeria, the political parties are required by law to conduct internal primary elections to nominate candidates that will represent them in the general elections. Disputes often arise from issues of qualification, disqualification, nomination, substitution, conduct of primaries and sponsorship of candidates for the general elections.

Therefore, in pre-election litigation, the bone of contention often revolves around the issues of nomination of candidate; double nomination of a candidate; disqualification of a candidate; wrongful substitution of a successful candidate’s name by the electoral body; wrongful omission of a successful candidate’s name by the electoral body; complaints about the conduct of primaries; and false declaration on oath about particulars of a candidate.

The sensitivity of pre-election matters cannot be overlooked as they are live issues that must be determined by the court and judgment delivered even after the general election has been conducted and a candidate has been sworn into an exalted political position.

Where the court establishes a foul play, the outcomes of elections have been nullified and already installed political office holders unseated. This is corroborated by what transpired after the 2019 general elections, when a governor was ousted before the swearing-in ceremony; just as some senators and members of the House of Representatives were ousted by the Supreme Court on account of pre-election matters after the inauguration ceremony.

The 1999 Constitution of the Federal Republic of Nigeria (as amended) makes provisions for pre-election matter and gives its definition in its Section 285 (14) and the said section has been judicially considered by the Supreme Court in the cases of APC v Umar (2019); and APC v Dele Moses & Ors (2021).

Section 285 (14) of the constitution recognises three different types of pre-election matters under paragraphs (a)-(c).

Paragraph (a) deals with the complaint by an aspirant (directed at his political party), that there has been failure to comply with the Electoral Act, party constitution or party guidelines in the conduct of the party’s primary.

The court has held that it will never allow a political party to act arbitrarily in the conduct of its primaries; and that a party must obey its own constitution.

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Paragraph (b) deals with the complaint by an aspirant (directed at the Independent National Electoral Commission) that actions, decisions or activities of INEC did not comply with the Electoral Act, or complaint that the provisions of the Electoral Act or any Act of the National Assembly, pertaining to selection or nomination of candidates and participation in an election, have not been complied with by INEC.

Typical examples of such issues include registration of voters, delineation of constituencies, formation of political parties, updating of voter register, regulation of the conduct of political parties, etc.

Paragraph (c) deals with cases by a political party (directed at INEC) for its administrative decisions or actions regarding a party candidate’s nomination or disqualification.

It includes suits by a political party in connection with an election timetable, registration of voters and other activities of INEC regarding preparation for an election.

But Section 285 (14) of the constitution is not exhaustive in the definition pre-election matters, which is why it the definition is preceded by the phrase “For the purpose of this.”

Thus, it is humbly submitted that pre-election matters can emanate from other sources in law, an example being Section 29 (5) of the new Electoral Act 2022, which provides that, “Any aspirant who participated in the primaries of his political party who has reasonable grounds to believe that any information given by his political party’s candidate in the affidavit or any document submitted given by that candidate in relation to his constitutional requirements to contest the election is false may file a suit at the Federal High Court against that candidate seeking a declaration that the information contained in the affidavit is false.”

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Similarly, Section 84 (14) of the Electoral Act, 2022 provides that, “(14) Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court for redress.”
Accordingly, the above provisions create another species of a pre-election matter which now clothes any aspirant who participated in the primaries of his political party with the requisite locus standi to challenge the information supplied by a candidate of his political party and to challenge the conduct of the primary election of his political party before the general elections.

It should be noted that the new Electoral Act 2022 has now limited this pre-election suit to only (1) an aspirant who participated in the primaries of his political party; (2) the aspirant can only sue his political party’s candidate; (3) the aspirant can only sue his political party’s candidate regarding his constitutional requirements in connection to the subject matter of this suit and (4) this suit can only be instituted at the Federal High Court.

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It is pertinent to note that the constitution provides for limitation of time for the commencement of pre-election matters under Section 285 (9), which says, “(9) Notwithstanding anything to the contrary in this constitution, any pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained in the suit.”

This provision has come up for consideration before the Supreme Court in a plethora of cases.

The application of the above constitutional provision has resulted in the dismissal or striking out of many cases in court for being statute-barred, even when there is a reasonable, genuine and compassionate cause of action.

Hence, it is critical for pre-election matters to be filed within 14 days of the accrual of the cause of action, otherwise no matter how compelling or compassionate the case of the litigant may be, the matter will be statute-barred and be struck out or dismissed by the court.

There is also a constitutional provision for the time limit within which to hear and determine a pre-election matter. That is the time within which the case must be heard and judgment delivered. This is because in election-related matters, time is of the essence. Thus, Section 285 (10) of the constitution stipulates that, “A court, in every pre-election matter, shall deliver its judgment in writing within 180 days from the date of filing of the suit.”

The importance of this provision cannot be over-emphasised as cases, even compelling ones, have been struck out or dismissed by the appellate courts for failure to comply with this 180 days limitation.

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Finally, there are also constitutional provisions on limitation of time for filing, hearing and determination of appeals in pre-election matters.

Section 285 (11) of the constitution provides, “An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment appealed against.”

Also, the provision of Section 285 (12) of the constitution provides that, “An appeal from a decision of a court in a pre-election matter shall be heard and disposed of within 60 days from the date of filing of the appeal.”

Hence, the two constitutional provisions above govern the limitation of time regarding filing, hearing and determination of appeals in pre-election matters.

In view of the foregoing, it is pertinent to note that there are two categories of pre-election matters, namely: (1) pre-election matters as provided for by the constitution and (2) pre-election matters as provided for in the Electoral Act, 2022.

Therefore, it is clear that pre-election matters occupy a sensitive and significant position in the Nigerian electoral law. Therefore, the political parties, candidates and INEC must ensure that they follow the rules and regulations under the laws. Their watchword must be fairness, justice and adherence to the provisions of the electoral laws.

  • Babalola, SAN, is a partner at Afe Babalola & Co.

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