As the days go by and important events occur, we continue to see how inadequate and poorly drafted the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2018) (the Constitution) is, leaving room for Government and the people to give provisions whatever interpretation suits their purposes. Many of our laws, also suffer the same fate. The importance of an excellent command of whatever language you deploy to draft laws, in our case, the English Language, cannot be overstated. More concerning, is when provisions are clear and unequivocal, and they are simply side-stepped, ignored, disobeyed and more honoured in their breach. It is our hope that, the incoming administration will give the issue of the review of the Constitution and regard for the rule of law, the priority they deserve. As Honourable Justice Okoro JSC commented during the proceedings in SC/CV/162/2023, the 3 AGs v AGF Currency case, Nigeria has indeed, outgrown the 1999 Constitution.
Social Media Forward
I cannot but probe a forward I saw on social media a few days ago, citing Section 77(3) of the Electoral Act 2022 (EA) which provides inter alia that, every political party must forward its membership register to INEC no later than 30 days before their primary election; and claiming that the Labour Party (LP) Presidential Candidate, Peter Obi’s name could not have been included in LP’s membership register at the time it should have been forwarded to INEC, and therefore, he was not a member of LP at the time of his party primaries, and consequently, not qualified to run. This allegation touches on Peter Obi’s constitutional eligibility, to run for President.
In the time leading up to the 2023 general elections, allegations and counter-allegations were brought against the APC and PDP Presidential candidates. At the time, I remember commenting more than once on this page, that the allegations levelled against them were of no moment, because they did not affect their constitutional eligibility for election to the office of President or disqualify them under Sections 131 & 137 of the Constitution. However, can this allegation of non-qualification against the LP Presidential candidate and indeed, candidates for other elective positions who cross-carpeted from one political party to another on the eve of their new party’s primaries be sustained, and not discountenanced as an allegation that is not grounded within the provisions of the Constitution and the law, like the allegations against the PDP and APC Presidential candidates? Is this issue a pre-election matter, which should have been filed not later than 14 days after the party primaries (Section 285(9) of the Constitution)?
Pre-Election Matter v Constitutional Qua-lification Matter
The answer to the latter question is simple: going by the definitions of pre-election matter provided in Section 285(14)(a)-(c) of the Constitution, it appears to me that this issue of Peter Obi not being included in his party’s membership register submitted to INEC for the purpose of the primaries, doesn’t fit into any of the definitions of a pre-election matter stated therein. See the case of SDP & Anor v INEC & Ors (2023) LPELR-59836 (SC) per Mohammed Lawal Garba JSC. It strikes one as a constitutional qualification matter, covered by Section 131(c) of the Constitution in the case of President; 177(c), for Governor; 65(2)(b) for National Assembly candidates and 106(d) for State House of Assembly candidates. For the purpose of this discourse I shall use only Section 131(c), since the other aforementioned provisions all say the same thing.
Section 131(c) provides that a person qualified to be a Presidential candidate must be a member of a political party and be sponsored by that political party (to run for election). It is trite law that “a political party is bound to obey and comply with the provisions of the Constitution, the Electoral Act, its own Constitution and Guidelines for the Primary Elections in the conduct of its primary elections, selection and nomination of candidates for elective offices in the country” – see the case of Nwite v PDP & Ors (2022) LPELR-59192 (SC) per Mohammed Lawal Garba JSC. Also see the case of Waziri v PDP & Anor (2022) LPELR-59174(SC) per Kudirat Motonmori Olatokunbo Kekere-Ekun JSC.
In the news reports available, Peter Obi resigned from his former party, PDP on May 24, 2022, joined LP on May 27, and clinched LP’s Presidential ticket in the LP Primary on May 30, 2022. PDP’s Presidential Primary was held on May 28. This means that Peter Obi who was still a member of PDP on May 23, 2022 and could not possibly have been included in LP’s membership register which should have been forwarded to INEC by April 30, 30 days before it’s Primaries on May 30. But, what does this mean? Does it mean that Peter Obi was not a member of LP for the purposes of the May 30 Primaries? In fact, if PDP had forwarded its own membership register 30 days before its May 28 Primaries, that is, on or before April 28, 2022, it’s more likely that Peter Obi’s name would have appeared in PDP’s register.
What is the reason for having to be included in a membership register which must be transmitted to INEC before a primary election? Is it to prevent non-party members from being sneaked in to vote in the primaries? Does non-inclusion in the membership register vitiate a person’s candidature? Can it be reasonably concluded that if Peter Obi was not included in the membership register of LP, it raises the question of who sponsored him (since his name may still have been in the PDP membership register) and whether he was lawfully sponsored by LP for the February 25 election? What is the fate of a person who joins a party after the membership register has been submitted to INEC? Does it mean that individual is not considered to be a member of the party, until such a time that the register may be updated, possibly after the primary elections have been held? Or in the alternative, even if Peter Obi had become a member of LP which he publicly joined on May 27, does his non-inclusion in the LP membership register affect his qualification as the LP Presidential candidate, in view of the mandatory provision of Section 77(3) of the EA? Notwithstanding the membership register, does a political party not reserve the right to confirm who its members are? Or is it of no significance whatsoever, if a person’s name is not included in the membership register before the party primaries, as long as they become a member before the primaries?
On the contrary, perhaps, it can also be argued that whether or not Peter Obi’s name was included in LP’s membership register 30 days before the Primaries is not an issue because: (1) Section 77(3) does not provide that if a candidate’s name is not included in a membership register, it means that such a candidate isn’t a member of the party and/or cannot participate in the party primaries; 2) that INEC monitored the Primaries in which Peter Obi emerged as the LP Presidential Candidate, and INEC was therefore, aware that he is a member of LP and was sponsored by LP; 3) that by virtue of Section 84(5) of the EA, LP forwarding Peter Obi’s name to INEC as its Presidential candidate is prima facie evidence that LP sponsored him; 4) that Section 131(c) provides that a candidate must be a party member, sponsored by that party, and it is not only by the membership register submitted to INEC that Peter Obi’s membership of LP could have been ascertained. My dear colleagues, what do you think?
The membership register of a political party, is a register which contains the names of all the members of a party. In a 2022 newspaper report that I read, the Chairman of INEC, Professor Mahmood Yakubu, when calling on the political parties to submit their membership registers before the deadline, stated that the provision of Section 77(3) of the EA is mandatory, and likened going into a party’s primary election without the submission of their membership register to INEC, to going into an election without a voters’ register. In Ikpeazu v Otti & Ors (2016) LPELR-40055(SC) per Kudirat Motonmori Olatokunbo Kekere-Ekun JSC the Supreme Court held that “The voters’ register remains an integral part of the accreditation process”. The voters’ register is used to prove over-voting (BVAS may have taken over this role). Similarly, a political party’s membership register is used to authenticate its members, and serves the same purpose in party primary elections, as a voters’ register in elections proper. INEC uses the membership registers to ensure that there isn’t any double registration etc, and that non-party members are not brought in to vote for aspirants (particularly in the case of direct primaries).
Consequences of the Effect of Non-Compliance to Section 77(3) of the Electoral Act
Will the courts see LP’s non-compliance in this regard as a mere irregularity, since it is public knowledge and in no doubt whatsoever, that Peter Obi joined LP and was its Presidential candidate? Or will Peter Obi’s candidature be declared by the court to be invalid, thereby making his votes wasted?
Though Section 77(3) of the EA uses the command ‘shall’, thereby making it mandatory for all political parties to submit their membership registers to INEC within the aforementioned 30 day time frame, it is silent about any sanctions for not sending your membership register to INEC before the primaries, and the non-inclusion of an aspirant therein. See the case of Ugwu v Ararume 2007 12 N.W.L.R. Part 1048 Page 367 on the word shall being a command. However, Section 84(13) of the EA provides that where a political party fails to comply with the EA in the conduct of its primaries, its candidate for the election shall not be included in the election for the particular position in issue. Is submitting a membership register, considered to be part of the conduct of primaries, since this provision must be complied with, prior to the primaries? However, in this case, Peter Obi’s name was forwarded by his party and included for the election by INEC.
It will be interesting to see what the courts decide, as it is more likely than not that this issue of LP’s non-compliance to Section 77(3) of the EA will be raised in the election petitions. Naturally, opponents will probably question LP and its candidate’s authority to enforce their rights under the EA, in the face of their own non-compliance to it, though obviously the other leading candidates all have different allegations of election malpractices levelled against them too. My dear Colleagues, kindly, share your opinion on this matter. Thank you.