‘You Can Reject Names Of Candidates Who Did Not Emerge From Party Primaries’ — Falana SAN Tells INEC

*Reacts To Comments By INEC Commissioner Denying Commission’s Power To Reject Candidates Illegally Nominated By Political Parties
*Argues That By Virtue Of Sections 84 (13) And 29 (1) Of The Electoral Act The Powers Of INEC Have Gone Beyond “Merely To Monitor” Party Primaries

 A Senior Advocate of Nigeria and renowned Human Rights Activist, Femi Falana SAN has reacted to recent comments by a National Commissioner of the Independent National Electoral Commission (INEC), Mr. Haruna Mohammed justifying the acceptance of the purported nominations of APC candidates who did not take part in party primaries in Yobe and Akwa Ibom States. According to Falana, contrary to the position taken by the National Commisioner, under the amended Electoral Act, the Commission has the power to reject candidates who were not properly nominated through a valid primary monitored by INEC.

In his response to the issue which has attracted growing attention in the past few days, Falana berated Senators Godwin Akpabio and Ahmed Lawan for what he described as their “utter breach of the Electoral Act” given that they did not purchase forms for their Senatorial primaries, neither did they participate in the said primaries. According to him, Senate President, Ahmed Lawan under whose watch the new Electoral Act was passed and Godwin Akpabio, a Senior Lawyer are expected to be familiar with the provisions of the law on substitution of candidates.

Falana wrote: “It is common knowledge that both Senators Ahmed Lawan and Godwin Akpabio did not purchase the All Progressive Congress’ expression of interest forms for the Senate and were not screened for same and did not participate in the party primaries. Indeed, each of the duo purchased the nomination forms for the presidential primary for N100 million and were screened for the position by the APC. They proceeded to participate in the well televised presidential primary election of the APC held in Abuja and monitored by INEC. Meanwhile, in the senatorial primaries conducted by the APC and monitored by INEC, Rtd. DIG. Udom Ekpoudom and Bashir Machina emerged the candidates for Akwa Ibom West Senatorial District and Yobe North Senatorial District respectively. Even though both candidates have not withdrawn from the senatorial race the APC has submitted the names of Senators Godwin Akpabio and Ahmed Lawan for the two Districts in utter breach of the Electoral Act, 2022. Apart from the brazen impunity of the APC, Dr. Ahmed Lawan superintended the passage of the Electoral Act by the national assembly while Senator Godwin Akpabio is a senior lawyer who ought to have familiarised with the provisions of the Act”

The vocal social commentator continued: “In his characteristic audacious manner, the Akwa Ibom Resident Electoral Commissioner, Mr. Mike Igini has questioned the nomination of Mr. Godwin Akpabio as a senatorial candidate. In the same vein, Mr. Igini has maintained that the APC primary for the election of the governorship candidate was not monitored by the INEC as it was cancelled for security reasons. As far as Mr. Igini is concerned, the candidates did not emerge from valid primaries. But while purporting to distance INEC from the position of Resident Electoral Commissioner, Mr. Mohammed Haruna, a National Commissioner of INEC, stated that “Igini’s remarks paint only a partial picture of the relevant regulations. He merely mentioned Section 31 that deals with the issue of withdrawal of candidate. For some inexplicable reason, he forgot to mention the section which mandates INEC to monitor only the primary of the State party executive recognised by the party’s National Headquarters. So if anyone was picking and choosing it was Igini & not INEC.”

Falana proceeded to address the position put up by Mr Haruna as the basis for INEC’S acceptance of Akpabio and Lawan as duly nominated candidates by their political parties for their respective constituencies despite not participating in the primaries.

Mr. Haruna who currently serves as a National Commissioner in the Commission had earlier said that “INEC has no powers to reject names sent by political parties.” Further noting that “Primaries are the sole prerogatives of parties. INEC’s responsibility is merely to monitor the primaries and make sure they abide by their own regulations, the Electoral Act & the Constitution.” Mr. Haruna also claimed that “Our power in that regard rests on the fact that our reports are admissible as evidence whenever an aggrieved candidate petitions his party or the courts. It is therefore up to an aggrieved candidate to apply for the certified true copy (CTC) of our reports for presentation as evidence that his party did not abide by any or all of the three sets of regulations mentioned.”

Responding, Falana said that party primaries and nomination process are governed by the Electoral Act, 2022 particularly Sections 29 and 84 therein. He continued that it is the responsibility of the National Working Committee (NWC) of political parties to conduct primary elections by setting up Party Primary Election Committees for all States while State Executive provides the venue. He stated: Section 84 (1) clearly states that “A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions which shall be monitored by the commission.” The monitoring by INEC is mandatory. To that extent, any primary of a political party not monitored by officials of INEC is illegal.

According to Falana, “Contrary to the views credited to Mr. Haruna, the powers of INEC have gone beyond “merely to monitor” party primaries. For the avoidance of doubt, Section: 84 (13) unequivocally provides that “Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue”. The legal implication of the provision is that INEC shall not include the candidate for the particular election.

Furthermore, Section 29 (1) of the Electoral Act, 2022 which provides for the submission of lists of candidates and their affidavits by political parties states that “Every political party shall, not later than 180 days before the date appointed for a general election under this Act, submit to the Commission, in the prescribed Forms, the list of the candidates the party proposes to sponsor at the elections, who must have emerged from valid primaries conducted by the political party”.

Falana further opined that the implication of the foregoing is that section 29(1) thereof has imposed a duty on political parties to ensure that the candidates whose names are submitted to INEC have emerged from valid primaries. He said this position is quite different from the provision in Section 31 of the repealed Electoral Act 2010 (as amended) which provided that INEC could not reject the name of any candidate submitted by the parties for any reason whatsoever. “Thus, in the present law the parties can only submit for the Commission’s acceptance the names of candidates who emerged from valid primaries conducted by the parties and monitored by INEC. This position is clearly fortified by Section 84(13). Thus, INEC having sent a team of monitors across its 36 States offices and the Federal Capital Territory, to monitor the primaries, is legally obligated to check the names submitted to it and ensure they are confirmed by the various reports compiled by its officials.”

He further submitted that if the candidates whose names are submitted to INEC have not emerged from the primaries, the Commission will reject such names in exercise of its power under Section 84(13) of the Electoral Act 2022. “That was what INEC did in Zamfara State when that power was not even expressly provided for.” He remarked.

“It is therefore, most shocking to read in the social media, statements attributed to some INEC National Commissioners that to the effect that INEC is bound to accept the names of candidates who did not participate in valid party primaries. With respect, the statement that INEC does not have power to reject names of persons submitted by political parties that did not emerge from valid primaries is grossly misleading. In fact, the embarrassing statement amounts to abdication of statutory duty under the above quoted provision of the Electoral Act aimed at sanitizing the process of nomination of candidates for national elections in Nigeria.”

The Senior Advocate also argued that in recognition of the power of INEC to regulate the operations of political parties by taking decisions (including rejection of candidates) section 285 (14)(b) and (c) of the 1999 Constitution (as amended) provides as follows:

“(b) an aspirant challenging the actions, decisions or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of selection or nomination of candidates and participation in an election; and

(c) a political party challenging the actions, decisions or activities of the Independent National Electoral Commission disqualifying its candidates from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election.”

He therefore concluded that under the Constitution and the 2022 Act, INEC has undoubted powers to reject candidates that did not emerge from valid primaries. In other words, the decision of INEC to disqualify a candidate who did not take part in a party primary may be challenged in the Federal High Court by a political party or aspirant who complains that “the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of selection or nomination of candidates and participation in an election”.

“In view of the foregoing, INEC should not be misled to shirk its statutory duty to sanitise the democratic process. INEC ought to realise that the nation has moved away from the era of imposition or illegal substitution of the names of candidates. Hence, INEC has been empowered to reject the names of candidates who did not emerge from valid primaries conducted by political parties and monitored by INEC. In particular, individuals who contested presidential primaries and lost cannot be permitted to replace candidates who won senatorial primaries. Unless the winners of party primaries voluntarily withdraw from the electoral process political parties lack the power to engage in any form of substitution. Therefore, INEC should desist from promoting pre-election litigation by falling to exercise its enormous powers under the Electoral Act and the Constitution.”