Unlawful Exclusion Is Not A Ground For Election Petition under the Electoral Act 2022 — Justice Alaba Omolaye-Ajileye, PhD. (Rtd)

Kogi retired Judge, Justice Alaba Omolaye-Ajileye, PhD, has said there is no cause of action where a logo or name of a political party does not appear on the ballot.

He made this remark on Tuesday, while reacting to the statement by members of the Labour Party, that the Name of the party was not on the ballot papers.

Read his statement below

Yesterday, we discussed the pre-eminence of the accreditation captured by BVAS in determining over-voting in a polling unit over the accreditation in the voter’s register as stipulated under the Electoral Act, 2022. Today, we address another fundamental question in our electoral jurisprudence: What happens when the name or logo of a political party is excluded from the ballot? One major complaint that featured prominently in the last Saturday’s election was the allegation that the names and logos of some political parties were excluded from the ballot papers in a number of constituencies. What is the remedy available to such political parties under the Electoral Act, 2022?

As critical and weighty as this allegation might appear to be, the reality is, given the state of the Electoral Act, 2022, such an allegation is non-justiciable. In other words, no cause of action arises from the exclusion of a political party or a candidate from the ballot. This is regrettable as it violates the basic principle of law that where there is a wrong, there ought to be a remedy: ubis jus, ubis remedium.

Section 134 of the Electoral Act, 2022 prescribes only three grounds for questioning an election. It states that an election may be questioned on any of these three grounds:
a). That a person whose election is questioned was, at the time of the election, not qualified to contest the election;
b). That the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act; and
c). That the Respondent was not duly elected by the majority of lawful votes cast at the election.

It is imperative to note here that, the Electoral Act of 2010 (now repealed), had four grounds for questioning an election. The fourth ground was that the petitioner or its candidate was validly nominated but, unlawfully excluded from the election. In the new Electoral Act, the fourth ground of “unlawful exclusion” has been excluded! “Unlawful exclusion’’ is no more a ground for questioning an election in Nigeria.

Probably this might be the first time, in the electoral history of Nigeria where exclusion from an election would not be considered unlawful and a ground to challenge an election. The unlawful exclusion was usually the easiest ground to prove in an election petition. All that the petitioner needed to establish was that he bought the form of his political party, participated in the screening exercise, and was cleared by his political party and his name submitted to INEC as the candidate of the party for the general election, but that at the general election, his party logo was not on the ballot. In such a situation, there was a clear case of unlawful exclusion and such exclusion was a strong ground for the nullification of an election. This applied to all elections: Local Government or Area Council Elections, State House of Assembly Elections, National Assembly, Governorship, and Presidential Elections. In the past, the Independent National Electoral Commission (INEC) was expected to be very careful in the listing of the logo of political parties on the ballot for every election, to avoid the exclusion of any candidate, irrespective of the perceived insignificance of the name or ranking of the political party. Under the Electoral Act, 2022 , a party can be excluded from the ballot and there will be no cause of action against the exclusion at the election petition tribunal.

It appears that it is now lawful for INEC to exclude political parties from elections. This is an aspect of our electoral jurisprudence that should be looked into. I just imagine the magnitude of abuse and whimsical display of such power by an unscrupulous and mischievous electoral umpire! It is a pity that attention is being drawn to it belatedly.