The Electoral Act, 2022 came into force on the 25th February, 2022 to regulate conduct of Political Parties activities, primaries election, and General Election among others.
I commend the National Assembly and President Federal Republic of Nigeria for passing and assenting same respectively.
The Act provides certain innovations as well as new provisions which can only be clearly and perfectly understood through the instrumentality of Judicial pronouncements.
From 20th August, 2022, when the wind of rumor starts escalating for defection of distinguished Senator Ibrahim Shekarau from NNPP to PDP to the 29th August, 2022 when he formally defected and up to today the 1st of September, 2022. Key Stakeholders of different Political Parties, Politicians and general public seeking my opinion on whether NNPP and PDP can submit names of other candidates to INEC and upon such submission INEC is obliged to accept.
The above nagging question requires not Yes or No answer. In my candid opinion, the answer can only be proffered from x-raying Sections 29(1), 31, 32(1) and 33 of the Electoral Act, 2022 vis-a-vis Section 78 and paragraph 15 of the 3 Schedule to the 1999 Constitution Federal Republic of Nigeria (as altered) and Section 28(1) of the Electoral Act, 2022, Judicial authorities and other enabling laws.
From the above cited provisions, INEC has unfettered powers to issue guidelines, time table and schedule of activities for 2023 General Election, and it is on this premise it issued time table, schedule of its activities on the 26th day of February, 2022 to regulate all the political parties activities including last day for replacement of the withdrawn candidates.
Therefore, I am of the firm view that INEC Time Table, Guidelines and Schedule of activities have same force with any enabling law and they run pari – pasu and all political parties are under obligation to comply with the said Time Table, Guidelines, and schedule of activities and it is in that regard all political parties sold their nomination forms, conducted primaries and forwarded the names of their candidates to INEC all within the stipulated period provided by the time table.
The submission above is supported by the case of N.D.P. Vs. I.N.E.C. (2012) 14 NWLR Part 1319 at page 176 particularly page 197 para D- F.
“The Time Table is Guideline with force of law; this is because any action taken outside the published time table is fatal to the political party involved.The activities and time schedule set out in the Time Table published are not directory”.
Based on the above decision and other relevant laws cited, it is beyond doubt that INEC time table is not an instruction or guide but a Command which all Political parties must comply with.
Therefore it is an affront to the established principle of law for political parties to even contemplate substitution or replacement of their candidates after the expiration of the last day provided by INEC in its time table and schedule of activities for 2023 General Election and for INEC to accept such substitution or replacement.
The most amazing part of the Electoral Act which I find most interesting are Sections 31, 32(1) and 33 dealing with withdrawal of candidates, date of final display of candidates and changing candidates respectively.
These three sections are key to the issue under discussion and it is against that background I devoted time to carefuly and painstakingly read them, and in the end my understanding reveals that there is no where the “last day” is stated for replacement or changing of the withdrawn candidate. Section 31 squarely deals with notification of withdrawal to INEC while Section 33 pertains to conduct of fresh primaries.
While rubbing mind on these issues, one may argued that the 90 days period for notification of withdrawal also applies to replacement, I hold with respect a contrary position, reason being that if the law makers intended that time will be applicable for replacement, same would have been stated in the relevant section.
Secondly, I asked what if notice of withdrawal is forwarded to INEC at the anniversary of the 90 days, which is still within the ambit of law for political parties to convey such letter of withdrawal to INEC, can the political parties still organize and conduct primaries to substitute candidate less than 90 days before the day of the general election, because section 31 states categoricaly that “Not later than 90 days the political parties shall convey such letter of withdrawal to INEC.
This will as well give another room to argue that replacement or changing of candidates can be made less than 90 days before the date of the general election on the strength of submission of withdrawal letter at the anniversary of 90 days, because the party needs to arrange and conduct primaries thereafter then the window for replacement cannot be 90 days because section 33 empowered political parties to conduct
fresh primaries within 14 days of the occurrence of the event.
It is apparent that drawing 14 days out of 90 days one can safely conclude that it will certainly be less than 90 days. It is a known fact in the entire Electoral Act, there is nowhere the “last day” for replacement of withdrawn candidate is stated.
Lastly, Section 32 (2) of the Electoral Act, 2022 mandates INEC to make final display of Names and Addresses of candidates of political parties at least 150 days before the date of General Election. It is therefore, my
understanding that 90 days as contained in section 31 of the Act, cannot by all canon of interpretation be the last day for substitution or replacement of withdrawn candidate, reason being that it run contrary to the intendment of the legislature, and the whole essence or interpretation is to discover the meaning and intendmentt of the law makers taking the entire provisions in to consideration.
On this principle of law See the Supreme Court Decision in BELLO VS A.G. OYO STATE 1986 5 NWLR part 45 page 828 particularly 832.
In construing the provisions of an enactment, although it is the particular section that is being considered that should be the primary concern, the whole enactment should be construed as a whole..”
I will now therefore, without much ado answer that the window for replacement or substitution of Political parties’ candidates is deemed closed since the 15th July, 2022 and 12th August, 2022 respectively.
It is therefore, my humble advise that the National Assembly whenever the need arise for making further amendment, the “Last Day” for
substitution or replacement of candidate(s) by Political parties be clearly and specifically spelt out in the Act.
Abdul Adamu Fagge Esq., ACArb.
(Head of Chambers)
BASHIR, NASIRU (SAN) & CO.
(Member, Common Wealth Lawyers Association)
(Former Member National Executive Council Nigerian Bar Association),
(Former Chairman, Nigerian Bar Association, Kano Branch)