Revisiting The Disqualification Of Candidates For Election Under Sections 107(1)(D); 66(1)(D); 182(1)(D); 137(1)(D) Of The 1999 Constitution.

By O.C ALI, Esq.

INTRODUCTION

There exist some misconceptions on the basis for the disqualification of candidates to contest for election into the State Legislative Houses, the National Legislative Houses, the Office of the Governor and President of the Federal Republic of Nigeria, as provided under Sections 107(1)(D); 66(1)(D); 182(1)(D); 137(1)(D) Of The 1999 Constitution (as amended) respectively.

For emphasis the said uniform provision provides thus:

“107(1) No person shall be qualified for Election to a House of Assembly if: ……

(d)within a period of less than ten years before the date of an election to the House of Assembly, he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of a contravention of the Code of Conduct.  ” (underlining is mine for emphasis in the cause of this discuss).

Kindly note that this provision of the Constitution as quoted above is applicable to the Offices of the National Legislative Houses, the Governor and President of Nigeria.

Some stakeholders in the Justice System and other onlookers have overtime instantaneously concluded that persons who have been convicted of a crime in Nigeria are no longer qualified to contest for public offices, as they presume that given “the game” nature of Politics, it puts candidates up for public critics, most especially character profiling which often leads to the revelation of their past criminal records which consequentially disqualify them as credible candidates for election.

Be that as it may, it is appropriate to thread with caution in construing these constitutional provisions under discuss, so that in doing so, reason is not overtaken by emotions and clichés.

WHY THE REVISIT?

The major drive that informed my thoughts in addressing this uniform provisions of the constitution on disqualification of candidates on the basis of previous criminal conviction, is the comment from a jurist of a High Court of Justice I appeared before recently and with due respect, this happens to be the view of most observers outside the justice system. On the said day, the learned trial Judge upon convicting the accused (the defendant) for stealing, the Judge went further to admonish the convict who was sentenced to a non-custodial punishment that he should desist from fraudulent behavior and reach out for more productive engagement.

His Lordship also added that the defendant already being a convict totally deters him from being qualified to contest election into any public office in Nigeria because, by the characteristics of the Nigerian political space, he (the convict) should be rest assured that upon his expression of interest to contest for any public office, his profile including the said conviction in court that day will be used as a strong basis for his disqualification to contest. The firm position of the learned Judge is with due respect erroneous and this appears to be the misconception of many persons when determining the chances of a former convict to contest election in Nigeria.

It is worthy of note, that a diligent perusal of the provisions of sections 107(1)(D); 66(1)(D); 182(1)(D); 137(1)(D) Of The 1999 Constitution (as amended) reveals that the conviction of a person in a previous trial does not absolutely estop a person from being qualified to contest an election into public office in Nigeria.

Against this background, I humbly seek to x-ray the said provisions and draw out two salient issues worthy of digest. The two underpinnings in this provision which are obscure in nature are thus;

• the more than 10years exception rule and;
• conviction on grounds of dishonesty.

On the first underpinning, the law provides that a candidate will be disqualified if “within a period of less than 10 years before the date of an election, he has been convicted and sentenced for an offence involving dishonesty or has been found guilty of contravention of the code of conduct. Therefore the interpretation is that after 10years of such conviction and sentence, a person is ordinarily qualified to contest an election into a public office in Nigeria.

The second underpinning is that, the rationale for conviction must be based on an offence involving dishonesty. Notwithstanding that the 1999 Constitution does not expressly provide for what amounts to “dishonesty”. Nevertheless, with the aid of other statutes and case laws, we can ascertain a clearer meaning of the word “dishonesty”. Section 16 of the Penal code, defines dishonesty thus;

“a person is said to do a thing ‘dishonestly’ who does that thing with the intention of causing a wrongful gain to himself or another or of causing wrongful loss to any other person.”

In the case of Usman v Munga (2012) LPELR-15186 (CA) The court defined the word “dishonesty” thus;

“The word ‘dishonestly’ is the adverbial form of the noun ‘dishonesty’ a word whose synonyms include deceitfulness; falsehood; fraud; fraudulence; fraudulency; improbity; perfidy; treachery; corrupt; trickery.’ See The Complete English Language Companion (Scotland: Geddes and Grosset, 2007) 366.” Per CHIMA CENTUS NWEZE, JCA (pp.42-42 Paras B-C).

Flowing therefrom, it is my humble opinion, that not all crimes are born out of the mens rea (Intent) of ‘dishonesty’, hence it is safe to say that not all convicts are convicted on grounds of dishonesty, being the nature of conviction envisaged under sections 107 (1) (d); 66 (1) (d); 182 (1) (d); 137 (1) (e) of the 1999 Constitution as Amended.

There exist convicts of crimes of whom the mens rea (intent) of the crime committed by them are purely born out of malice, recklessness or negligence. And without hesitation I further submit that crimes originating outside the mens rea of ‘dishonesty’ as captured in the constitutional provisions under discuss does not fall within the meaning of criminal conviction envisaged for the disqualification of candidates for election into public offices in Nigeria.

In conclusion, it is my humble view that before the public becomes so acclimatized with what I will tag a “legal cliché” it is the collective duty of us ministers in the temple of justice both at the Bar and the Bench to ensure that the principles of the law put out by us are seasoned to the best of our ability in addressing the principal intent of the lawmakers, and not putting out opinions of the law based on our sentiments or emotions, so that we do not popularize clichés rather than valid principles of law.

O.C ALI, is a Lawyer, with interest in Dispute Resolution & Corporate Legal Advisory. (Partner, MCALI LEGAL CONSULT, LP).,mcalilegal@gmail.com, He tweets: @CharlesMcali