By Ekemini Udim
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The Electoral Act, 2022 is like a mixed basket, containing a variety of products; some good, and others not so good. Even before its passage into law by the National Assembly, there were several knocks against the law. Even as the President was appending his signature to the law, the President complained bitterly about some of the provisions. It was akin to a woman who is not happy with the actions of the husband but who nevertheless allows the husband to have his way in the other room, ‘’just for peace to reign.’’ Eventually, the bill was passed by the two chambers of the National Assembly and signed into law by the President. The rest is now history but the reality stares us in the face from this moment onward until such time that the Act may be further amended by another Assembly of lawmakers.
Unlawful Exclusion
In the Electoral Acts before the one of 2022, there were four principal grounds for election petition. The grounds were: 1) That a person whose election is questioned was, at the time of the election, not qualified to contest the election. 2) That the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Electoral Act. 3) That the respondent was not duly elected by majority of lawful votes at the election. 4) That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election. (See S. 138 of the Electoral Act, 2010).
In the new Electoral Act, the fourth ground above is not included. There are now three grounds for election petition. See S. 134 of the Electoral Act, 2022 which provides thus: ‘’An election may be questioned on any of the following 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 this Act; or (c) That the respondent was not duly elected by majority of lawful votes cast at the election.’’
What this means is that ‘’unlawful exclusion’’ is no more a ground for the questioning of an election in Nigeria. This is the first time in the recent electoral history of Nigeria where unlawful exclusion from an election would not be a ground for election petition. Unlawful exclusion was usually the easiest ground to prove in an election petition. All the petitioner needed to prove was that he bought the form of his political party, participated in the screening and was screened and 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 name (party logo) was not on the ballot. In such situation, there was a clear case of unlawful exclusion and such exclusion was a strong ground for the nullification of an election. See: Egolum vs. Obasanjo (1999) 7 NWLR (Pt. 611) 355.
This was applicable to all elections; Local Government or Area Council Elections, State House of Assembly Elections, National Assembly, Governorship and Presidential Elections. 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. INEC acted cautiously and did not allow the scheming of the political class to influence its work. INEC was careful not to exclude any candidate, irrespective of the perceived insignificance of the name or ranking of the political party. By the new law, any body (party) can be excluded from the ballot and there will be no cause of action against the exclusion at the election petition tribunal. I dare say that this is not an improvement to the electoral law and practice of Nigeria.
In Effiong v. Ikpeme (1999) 6 NWLR (Pt. 606) 260, the Court of Appeal per Obadina, JCA held thus:
‘’An election may be questioned on the ground “That the petitioner was validly nominated but unlawfully excluded from the election.” In order to prove that the petitioner was validly nominated by his party and unlawfully excluded from the election, the petitioner must prove:- (1) that he was validly nominated by his party; (2) that the election was conducted and concluded; (3) that a winner was declared and (4) that his name was not included in the list of the contestants; The petitioner must not only state all the above requirements in his petition, he must specifically prove them at the trial.’’
In Gogwim v. Abdulmalik (2008) LPELR – 4210, His Lordship Ndukwe-Anyanwu, JCA noted that, ‘’unlawful exclusion is fundamental, in that, it involves a deprivation of a candidate and disenfranchises the supporters from voting for the candidate of their choice.’’
Unlawful exclusion was indeed, a serious issue and the law courts did not treat it lightly. Every registered political party was important and their rights to present candidates for election was not to be treated with levity. Every candidate was important and, unlawful exclusion was unacceptable to the law. Today, by S. 134 of the new Electoral Act, unlawful exclusion has itself been excluded from the grounds for election petition.
What this means
What this means is that, one can now be excluded from an election, either mistakenly or mischievously, without any legal consequence whatsoever. Someone somewhere can liaise with a pliable person at the electoral body to ensure that a candidate (whom he sees as a threat) is removed from the ballot. In Nigeria it is the logo of the political party that adorns the ballot. The logo is as good as the face of the candidate of the party. If the logo is excluded, the candidate is invariably excluded. In the old order, the candidate or the party had a right of action at the election tribunal against the exclusion. In the present order, there is no such right of action. The complaint cannot also be tabled before the regular court. This is because by law, every complaint arising from an election can only be presented before the election petition tribunal via the process of a petition. Every election petition must be founded on a ground(s) clearly stated in the Electoral Act and a good petition must specify the exact ground(s) upon which the election is being challenged. What this means is that, for the 2023 general elections scheduled to hold across the federation of Nigeria, any candidate of a political party who is excluded from the election, shall have no cause of action before the election petition tribunal nor before any court of law whatsoever. This indeed is a sad reality which some legislators may not have seen on the day they stood up to adjust their long flowing babariga to speak in support of the passage of the law.
Conclusion
The 2022 Electoral Act leaves much to be desired. It is debatable if it has indeed deepened Nigeria’s democracy by its many questionable and highly controversial provisions. Laws should be made for the betterment of society and not for the inexplicable restriction of already existing democratic rights. It is indeed clear that, but for the intervention of the presidency, the new Electoral Act would have been worst than it is now. Our laws must be made for the betterment of the Nigeria society. Our laws should be made to stand the test of time.
Ekemini Udim is a legal practitioner, public affairs analyst and author of law books, one of which is Principles of Garnishee Proceedings in Nigeria. He is reachable on: ekeminiudimforjustice@gmail.com
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