Therefore, for any primary election to be valid, it must follow the express wordings of Section 84 of the Electoral Act 2022.
The All Progressives Congress Party primaries for the Ebonyi-South Senatorial District has continued to make headlines and has secured keen interest, media discussions, claims, outburst, assertions, and accusations in the last few months. Following the first APC primaries which held on the 28th of May 2022 that saw the emergence of Austin Umahi as the winner, who later withdrew his candidature for the APC, hence in line with the Electoral Act, 2022, leaving room for the conduct of another primary election, the All Progressives Congress conducted another primary election on the 9th of June 2022.
Pursuant to same, the Ebonyi State Governor, David Umahi who had earlier contested and lost in the APC Presidential Primaries, contested and emerged as the winner of the Ebonyi-South Senatorial District, becoming the APC flag-bearer in that regard ahead of the 2023 General Elections.
The result of the election was however bedeviled with adverse claims and oppositions including the refusal by INEC to recognize David Umahi as the APC flag-bearer for the Ebonyi-South Senatorial District. This resulted in a lawsuit filed by the Governor at the Federal High Court seeking for the order of the Court amongst other things mandating INEC to recognize him as the flagbearer of the APC for the Ebonyi-South Senatorial District ahead of the 2023 elections.
The judgment of the Court was delivered the 22nd day of July, 2022 in one hand recognizing Mrs. Ann Agom-Eze (the 1st runner up in the 28th May 2022 Primary Election who applied to be joined as a party in the suit) as the flag-bearer, while equally ordering the conduct of fresh primaries within 14 days from the judgment. Pursuant to same, an appeal against the Order of the Court allowing for the fresh primary was lodged at the Court of Appeal by Mrs Ann Agom-Eze while the All Progressives Congress on the other hand conducted a fresh primary for that purpose on the 31st of July 2022 which saw the emergence of David Umahi as the winner, with Mrs. Ann Agom-Eze refusing to participate in same.
The foregoing issues have raised several legal concerns including issues of double nomination, aspirant/candidate withdrawal and non-participation of candidate in court ordered primary election under the Electoral Act. This article to the best of the writer’s ability provides answers to the foregoing issues in line with the provisions of the new Electoral Act 2022, and this is certainly without prejudice to the appeal subsisting at the Appellate Court.
Legal Analysis
The foundation of all political parties’ primary election is regulated by Section 84 of the Electoral Act 2022 which provides that a political party seeking to nominate candidates for elections under the Act to hold primaries for aspirants to all elective positions and the procedure for the nomination of candidates shall either be by direct, indirect or consensus. Therefore, for any primary election to be valid, it must follow the express wordings of Section 84 of the Electoral Act 2022. For the present circumstance, the indirect primaries constitute the focus as the procedure adopted by the All Progressive Congress for the conduct of its primaries in respect of the Ebonyi-South Senatorial District Primary Election.
Section 84 (5) (c) (i) provides that in the case of nominations to the position of a senatorial candidate... the political party shall where it intends to sponsor candidates;
i. Hold special congresses in the senatorial district... with delegates voting for aspirants of their choice in designated centers on specified dates; and
ii. The aspirant with the highest number of votes cast at the end of the voting shall be declared winner of the primaries of the party and the aspirants name shall be forwarded to the commission as the candidate of the party.
Following from the foregoing, the only requirement for the validity of a primary election is when all the processes above have been duly followed and when that is established, an aspirant is said to be duly nominated by a political party and becomes a candidate for the election in question where his/her name is forwarded to INEC in line with section 29 of the Act as a sponsored candidate.
In the circumstances however, the question that arises therefore is what is the position of the law when the sponsored candidate withdraws from the election just as it happened in the APC Ebonyi South Senatorial Primaries?
Does the 1st runner-up become the candidate automatically after the withdrawal? Or, Would there be need for a fresh primary election in the event of a withdrawal of a candidate in line with the Electoral Act 2022?
Position of the law when a candidate withdraws his candidature and whether the primary Election Conducted by the Party on the 9th of June 2022 after the withdrawal of Austin Umahi is valid.
The Electoral Act envisaged situations where upon the conduct of political party primary election and the consequent emergence of a sponsored candidate, the said candidate withdraws his candidature, however within a specified time frame to the main election. Sections 31 and 33 of the Electoral Act 2022 are instructive in this regard.
By virtue of Section 31, a candidate may withdraw his/her candidature by a notice in writing signed by him and delivered personally by the candidate to the political party that nominated him for such election and the political party shall convey such withdrawal to the commission not later than 90 days to the election.
Similarly, under Section 33, the only instance where a political party is allowed to change or substitute a candidate is in the event of death or withdrawal. For ease of reference, the provision of section 33 is reproduced below;
A political party shall not be allowed to change or substitute its candidate whose name has been submitted under section 29 of this Act except in the case of death or withdrawal by the candidate: Provided that in the case of such withdrawal or death of a candidate, the political party affected shall within 14days of the occurrence of the event, hold a fresh primary election to produce and submit a fresh candidate to the commission for the election concerned. (underlining mine for emphasis).
It is imperative to note that the person covered by the above section is a candidate whose name has been submitted in accordance with section 29 of the Act. This means that a candidate is a person who has emerged through a primary election conducted by a political party and whose name has been submitted to INEC. From the foregoing provision therefore, it is safe to state that, assuming there is no death or an incidence of withdrawal, a political party is not at liberty to substitute or change the name of a candidate. Based on the strength of the authorities above, it is therefore my humble and respectful opinion that the conduct of another primaries by the APC after the withdrawal of Austin Umahi was valid and legal, in as much as the requisite notice for same was given to INEC.
Whether the 1st runner-up becomes the candidate automatically after the withdrawal?
It is erroneous and indeed against the express provision of the Electoral Act to assume the position that upon the withdrawal of an aspirant or a candidate, the 1st runner up or the sole remaining aspirant at a primary automatically becomes a Political Party’s flag-bearer. One of the adversity or illusion which followed the primaries in the Ebonyi-South Senatorial District election after the withdrawal of Austin Umahi who polled the highest number of votes at the first primaries is that, having withdrawn, the 1st runner up in the person of Mrs Ann automatically becomes the candidate for the party.
On the strength of the authorities cited above, particularly Section 33 of the Electoral Act, 2022, the position of the law is that a political party is mandated to conduct another primary election to determine the flag-bearer of the party for any elective office in the event of a withdrawal, albeit such withdrawal must have been done within 90 days to the election, with the fresh primary conducted within 14days of the communication of such withdrawal to INEC. Hence, the notion or argument that upon withdrawal of a candidate, the other aspirant or runner-up would become the candidate of the party finds no origin or basis in law. It is indeed against the rule of literal interpretation of the Electoral Act as same is unambiguous in this regard.
Having said that, it is imperative to consider whether a person has a right to challenge an election having not participated in same.
It is an age long established position in electoral related matters, that only an aspirant who participated in an election is entitled to challenge the result of that election. Consequently, this has been reiterated in a plethora of authorities, in Davidson v. PDP (2019) 6 NWLR (pt. 1668) 530 at 345 the Court held that where a candidate of a political party refuses to participate in the primary election organized by his party in accordance with the rules and guidelines of the party’s constitution, such a person has no locus-standi to challenge the result of that primary election.
Arising from the facts therefrom, it is also instructive to consider the position of the law on Multiple Nomination against the backdrop of Section 115 (d) of the Electoral Act 2022 as one of the issues raised. A combine reading of Section 115 (1) (d) and (k) Provides that:
“Any person who signs a nomination paper or result form as a candidate in more than one constituency at the same election...commits an offence and is liable on conviction to a maximum term of imprisonment for two years”. [underlining mine for emphasis]
It has been celebrated in public space that section 115 (1) (d) was designed to minimize political greed by ensuring that no politician is allowed to vie for two offices in any single electoral season with particular reference to the facts stated herein. As much as this is a welcome provision, it is imperative to clear the misconstrued interpretation of the said provision. Firstly, the said provision only applies to multiple nomination as a candidate and not as an aspirant, hence it would only apply where a person seeks to be presented as a candidate for two different offices or by two different parties for different offices in the same electoral season, i.e Honourable Mark Gbillah, whose name was recently published by INEC as candidate for both the NNPP and the Labour Party for the Senatorial election for Benue North West in the 2023 elections.
The rationale for that provision maybe traced to the Uche Nwosu scenario at the last elections in the Imo State Gubernatorial race where claims for the candidacy of Uche Nwosu by AA and the APC were entertained, argued and finally settled by the Apex Court.
Furthermore, considering the clear and unambiguous wordings of the Electoral Act, 2022, having earlier established while addressing the foregoing issues that a candidate for an election is a person, who emerges after a primary election conducted by a political party and whose name has been submitted to INEC as the sponsored candidate of a political party in line with section 29 of the Electoral Act, the candidate envisaged by Section 115 (1) (d) is a person sponsored by a political party to stand in an election for an elective office while the same candidate is also vying for another or the same position under another party or same party different positions in the same electioneering season. The section provides for any person who signs a nomination paper or a result form as a candidate, hence aspirants or nominees were not contemplated within this section.
The form and content of a nomination paper/form as published by INEC on their official online site contains details suggesting that the person has already been sponsored by the political party. Assuming the nomination form was for internal nomination (in this case primaries), the phrase “sponsored by...” the name of the political party will be absent because a person can only be a sponsored candidate where he emerges as the winner of the primaries conducted or is a consensus candidate within the purview and contemplation of Section 84 of the Electoral Act 2022.
It is therefore safe to state that, the aggregate facts forming the fulcrum of this analysis are not sufficient enough to establish an argument for multiple nomination against the Governor of Ebonyi State having only contested in the primaries for the presidential election and lost, and subsequently contesting the primaries for the APC Ebonyi-South Senatorial District Primary Election.
Conclusively, it is therefore imperative to state that in as much as a party’s candidate withdraws within the statutory window of 90 days before the election provided by the Electoral Act, 2022, such a party has a window of 14 days to conduct a fresh election to nominate its new candidate for the elections. The question of who were the earlier aspirants in my humble view would not come to the fore being that were it that the Electoral Act contemplated a primary for the earlier aspirants, maybe the word would have been another primary rather than fresh primary, hence this is a new vista for the party, as in the present case in issue. For I respectfully opine that words, as consistently held in a plethora of authorities, used in a statute must be given its primary and direct meaning, with the attempt to invite words or intentions not contemplated by the Legislators mostly cautioned against.
Henry Kelechukwu Eni-Otu, Esq is a Constitutional Lawyer and Senior Partner, Law Corridor, Abuja.