Disqualification For Purchase Of Nomination Form In More Than One Political Party: How True Is The Argument Currently Occupying The Public Space?

(Section 115 of the Electoral Act 2022 in Perspective)

By Ekemini Udim

We have recently been served with the argument that the new Electoral Act prohibits a person from purchasing nomination forms from more than one political party. In otherwords, the argument on TV and Radio as at today is that if someone purchased the nomination form of party A but could not secure victory at the primary election of that party, he cannot switch allegiance and purchase another form in party B to participate at the primary of that party. That, if anyone embarks on such exercise, the person is liable to imprisonment for two years. This argument is heated already and several persons are beginning to worry about their political future, hence my decision to pen down this article and engage our minds as much as possible on whether the above interpretation of the Electoral Act is within or outside the Act itself. In other words, how correct in this argument?

Let me start by reminding everyone of the fundamental right provision of the 1999 Constitution which talks about freedom of association. It says: ‘’Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interest.’’ See Section 40 of the 1999 Constitution. The argument of whether someone can move from one political party to another should ordinarily end here. Because this is the Constitution and the Constitution has said it all. No other law is higher than the Constitution. Thus, if there is any law of the National Assembly or of the State House of Assembly which provides anything contrary to what the Constitution says, such law is, to the extent of its inconsistency, null and void. See Section 1 of the Constitution. Again, the argument of whether the Electoral Act can stop a person from moving from one political party to another should ordinarily stop here. But election in Nigeria is not ordinary and the argument may not end soon.

But what does this section of the Electoral Act say?

Let’s look at it together. Section 115 (particularly sub 1 sub d). What does it say? ‘’A person who signs a nomination paper or result form AS A CANDIDATE in MORE THAN ONE CONSTITUENCY at the same election, commits an offence and is liable on conviction to a maximum term of imprisonment for two years.’’

Gentlemen, can we rightly say that this provision has prohibited anybody from moving from one political party to another and purchasing nomination form to contest for the ticket of a political party? I do not think so. What do I mean? I mean that, there is absolutely nothing in Section 115 (1) (d) of the Electoral Act, 2022 which prohibits a Nigerian citizen from moving from one political party to another and picking the nomination form from the new political party. There is nothing in the above section which supports the argument that is currently taking over the airspace in Nigeria.

Assuming the provision can stop a person from picking another nomination form, it is only ‘’candidates’’ that can be affected, not ‘’aspirants.’’ This is because, Section 115 (1) (d) – when read carefully – refers to the word ‘’candidate’’ and makes no mention of the word ‘’aspirant.’’

For purpose of the Electoral Act, a ‘’candidate’’ is different from ‘’an aspirant’’. While 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,’’ Section 142 defines a candidate as ‘’a person who has secured the nomination of a political party to contest an election for any elective office.’’

Let us go back to the provision of Section 115 (1) (d) of the Act. What does it say: ‘’ ’A person who signs a nomination paper or result form as a candidate in more than one constituency at the same election, commits an offence and is liable on conviction to a maximum term of imprisonment for two years.’’ Legally speaking therefore, this section can only affect a person who emerges as the candidate (flagbearer) of a political party and in the same electoral season buys a form in another political party and also emerges as the candidate (flagbearer) of that other political party.

It does not in anyway affect a man who bought a nomination form in one political party but who was schemed out of the race and therefore did not emerge as the flagbearer of the said political party for which reason he moved to another political party and purchased the nomination form to seek the possibility of realising his dream to occupy a public office and serve his people.

The argument therefore by some persons that section 115 of the Electoral Act, 2022 prohibits any person and every person from buying more than one nomination form in one election season is – with the greatest respect to them – an argument without the support of the Act itself. To say otherwise would mean that a person who barely purchased the nomination of a political party but who did not even participate in the primaries of that party for obvious reasons, would be prohibited from seeking to actualise his ambition in another political party. That cannot be the intendment of the law makers neither would it have the support of the Constitution of the land. I therefore hold the strong opinion – guided by the above provision of the law – that section 115 of the Electoral Act does not stop a Nigerian citizen (who is not the flagbearer of a political party) from purchasing nomination form in any other political party of his choice and from seeking to express his right to vote and be voted for in an election season.

The Constitution is Supreme:

If any provision of the Electoral Act is in conflict or inconsistent with the provision of the Constitution on the right to belong to a political party of one’s choice and the right to move from one party to another, such provision of the Electoral Act is null and void and cannot stand. An interpretation of the Act which seeks to say that a person cannot buy nomination form in any political party of his choice in exercise of his electoral and political rights will certainly be in conflict with the provision of Section 40 of the Constitution which grants every citizen the right to belong to any political party of his choice and participate in the activities of such party. This is even more where the person did not already emerge as the candidate of any other political party. The argument therefore about Section 115 of the Electoral Act, 2022 is an argument founded on quick sand and cannot stand.

But the National is the mother of this confusion

Since 1960 till today, no Electoral Act has created more confusion in the polity like the current Electoral Act. One wonders whether our lawmakers really spend time to read through the bills they pass into law. I dare say that a couple of our bills are so low in quality. The 2022 Electoral Act is full of several avoidable provisions, ranging from provisions for election by unknown ad hoc delegates, to many other provisions one can ever imagine.

In the first place, the provision of Section 115 (1) (d) hardly makes sense to me. The provision talks about ‘’standing election as a candidate in more than one constituency at the same election.’’ How possible is that? So, a man would be a candidate of the FCT State Constituency in Abuja – for instance and also be a candidate at Logos Island State Constituency during the same election year? This does not sound plausible. It does not also happen in real life situation. So, the National Assembly caused this confusion. Even if the word ‘’constituency’’ is construed to mean a particular political office – example the Presidency, Senate, Reps and State House – the drafters of the section did not still do a good job. They should learn to call a thing by its name and not leave it to guess work. But whatever the interpretation, section 115 of the Act does not in any way affect persons who were merely aspirants following their purchase of the expression of interest forms and nominations forms, but who did not emerge as candidates (flagbearers) of their erstwhile political parties. Nothing in Section 115 of the Electoral Act also stops a person who bought form in his political party for the office of Governor for instance, from picking a form for another office in the same political party if he could not emerge as the ‘’candidate’’ – flagbearer for the office he earlier bought form for. Any interpretation which says otherwise is extrinsic to the Electoral Act itself.

Ekemini Udim is a Barrister, Solicitor, Author of Law Books and public affairs analyst. He has participated actively in several matters including pre-election and post-election matters in all rungs of courts in Nigeria. (ekeminiudimforjustice@gmail.com)