….Explains intent of Section 115(d), regarding double nomination
By Jide Ajani, General Editor
D r Festus Okoye is the National Commissioner and Chairman, Information and Voter Education Committee, of the Independent National Electoral Commission, INEC. He says Resident Electoral Commissioners, RECs, are not recognised as members of the electoral commission and he explains why that is so. Okoye also said that he is not aware of any tension in the commission or between RECs and National Commissioners.
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He made the disclosures on Channels Television morning programme, Sunrise Daily, in reaction to Vanguard’s lead story of Monday where it was revealed that underhand moves were being made at the Commission’s national headquarters in Abuja, to ensure the participation of some politicians, who neither participated in party primaries nor even suffered defeat.
The story also maintained that some RECs were not comfortable with disclosures from the election management body’s headquarters that the reports of party primaries monitored by RECs and, initially, given primacy, are being ignored. For balance, we bring you the full interview.
We are told that there are concerns in INEC as a result of the Commission not adhering to the reports of RECs from the states about primaries?
Let me just say this and say it very clearly and unequivocally, if you look at the constitution of Nigeria, which is the grund norm, the Commission is made up of the Chairman, who is the Chief Electoral Commissioner of the federation, and 12 National Commissioners. These are the ones that the Constitution refers to as the Commission.
Now, RECs are not the Commission. The powers given to National Commissioners and the Chairman of the Commission are delegated to the RECs, in other words, RECs operate in a delegated capacity. So, if we do not delegate powers to a REC, a REC will not have powers to act.
Furthermore, when a REC is appointed, the Chairman of the Commission swears in the REC and the REC is assigned responsibilities by the Commission. In other words, he goes to represent the Commission which is the Chairman and the 12 National Commissioners.
You also have Electoral Officers in the 774 LGAs of the federation. All of them carry out the intendment and the functions of the Commission as represented by the Chairman and the National Commissioners.
Now, when an issue emerges, it is when party primaries are called, under Section 82, the letter signifying the intention to conduct party primaries goes to the Chairman of the Commission, who now minutes the letter to the Director, Election and Party Monitoring. The Director, Election and Party Monitoring, together with other directors, plan the monitoring of the party primaries.
The party primaries are conducted by the National Executive Committees of the parties, not the state chapters of the parties.
When party primaries are conducted and reports are submitted to the Commission, the Commission looks at several variables: If, for instance, we receive a report that a party did not conduct primaries, there is no way we can publish the list and personal particulars of whoever purportedly emerges from any so called party primaries.
That is within the realm of the powers granted to the Commission under Section 29 of the Electoral Act and under Section 84 of the Electoral Act.
If, for instance, a political party moves to go and conduct party primaries, and a candidate emerges from that party primaries and the party, whose responsibility it is to upload the list of validly nominated candidates, nominates a different candidate, the Commission is not under any legal or constitutional obligation to publish such a name.
Okay, what about the ones monitored by INEC?
If the Commission has monitored party primaries and within the intervening period, there is a court order saying don’t accept this particular list, accept this other list, it is within the realm of the Commission to do the needful. So, the fact that party primaries have been monitored does not, ipso facto, mean that we must accept the report from the REC, no matter the circumstances.
In relation to the party primaries relating to the Senate President in Yobe State, there was a report that a party primary was conducted and somebody won the election. But the party whose responsibility it is to submit the name of the validly nominated candidate submitted the name of another candidate and the Commission did not publish the name of any candidate in relation to that party primary. This is because if you look at Section 29(1) of the Electoral Act, it says that a political party shall submit the list of candidates it intends to sponsor who have emerged from valid party primaries. It didn’t say that the Commission should submit. It is the responsibility of the political party to do so.
Secondly, in the case of Delta State, the Commission monitored party primaries, a candidate emerged from that party primary, the political party submitted the name of a candidate they believe won the primary; one of the aspirants went to court and the court said, ‘no, you are the candidate, the PDP and INEC should do the needful and submit your name’. What the Commission did was that we received this court order, we now wrote to the PDP as a political party saying, this is the judgment of the court; the court says so so and so won the party primaries, please upload the name and particulars of the person the court said won the party primary. They have not done so. So, it is the responsibility of the party, under Section 29, to do the needful.
Can an aspirant who did not participate in a primary pick up the nomination slot of another person, like a trade off of the ticket?
The moment there has been a withdrawal, the implication is that nothing has happened and the implication is that the party has a clean slate. So, any individual belonging to that party and the constituency for which the primary was held before, can now participate in such party primary because the original candidate is no longer there.
If there was only one candidate in a particular district who came in through consensus and immediately after the primary through which he emerged, the person withdraws, the implication is that there is no individual who contested with him, so, in that instance, the party can throw the race open to every other individual who is interested and that individual can participate.
What about Section 115(d) which talks about people who have lost a primary contest for one office and then go ahead to fill another nomination form for another office entirely?
All the analysis about Section 115(d) doesn’t come into play at all. This is because at the time people are participating in party primaries, they are participating at a domestic level, at the level of their domestic parties and Section 152 of the Electoral Act 2022, says they are aspirants. They are not candidates, even under Section 29(1), when a party is submitting a list, it is submitting a list of candidates it intends to sponsor. The list and particulars are inchoate and that is why Section 29(2) says that within seven days of the receipt of this particulars, publish them in the constituencies in which the candidate intends to contest and any aspirant who believes that any information submitted regarding his or her qualification to contest is not right can go to court.
Thereafter, the Commission will give to each party to give to each of their candidates who have emerged from valid primaries Form EC13 A to E (A, presidential election; B, governorship; C, senatorial; D, Reps; and E, state assembly election).
It is these nomination forms that have not been filled that the candidates will now fill and registered voters in their constituencies will fill. That is the nomination form Section 115(d) is talking about.
Those who contested presidential primaries and whose names have been submitted have up till August 8, 2022, to submit these nomination forms and for those who contested for governorship and state elections, have up to August 18, 2022, to submit these forms which we call EC13 A to E. The nomination forms have not been submitted.
Every other thing that happened relates to the internal affairs of political parties and not the nomination that Section 115 of the Electoral Act is talking about.
A situation where people withdraw and allow others to take up their slots, what does that say about fairness, honesty, fidelity of the process and spirit and letters of the law to avoid underhand moves? So, 115 may have been defeated because you can fail in one and quickly run and participate in another.
The spirit is the spirit of the internal dynamics within the various political parties, spirit of internal party democracy and also the spirit of opportunism within some of the parties where people place in pseudo candidates and then wait to see what happens whether they will get the ticket and if they don’t, they simply walk across and pick from another party. The implication and what we are saying is that we have to find ways of strengthening our parties so that they can become parties in the true sense of the word – parties with ideology and on set principles. We have to keep on working on our laws to make sure that parties conform to the constitution and Electoral Act.
Sections 82 and 84 of the Electoral Act have set out clear guidelines on how people will emerge from party primaries but it is also the responsibility of the parties at their domestic levels to conform.
Can Section 29 of the Electoral Act override Section 285(14b & c) of the 1999 Constitution as amended, regarding accepting nominations from the primaries?
We must understand that INEC is a creation of the constitution and also a creation of the law. They also must understand the fact that we have our regulations and guidelines through which we do our things. Before this period, parties nominate and forward a list of their candidates manually or physically. Sometimes, the headquarters, state chapters and factions of the parties will bring different lists of candidates and there will be fights at the INEC office in Abuja but we have now utilised technology and we have given access codes to each national chairman of political parties with which they upload the list of their candidates to our candidates’ nomination portal so we don’t have any physical interaction with the parties at this point in time.
I completely agree that under Section 285 of the Constitution, INEC is under a constitutional obligation to give effect of properly constituted courts of law but in this instance, the judge was categorical that the party involved and INEC shall accept the list or nomination of a particular candidate so what the commission has done in compliance with the court order is to say, we recognise the order as genuine, we wrote to the party that we have received this order, please comply with this order by using the access code we have given to you and upload the name of the candidate that the court says is the valid candidate into our nomination portal. So we have complied with our own portion of the court order. It is now left for the party to comply with their own.
Under the 2022 Electoral Act and Section 285 of the constitution, INEC has powers to reject nominations sent to them by parties for candidates who did not emerge from valid primaries.
Yes!
What’s then happening in states where what is being done by INEC is different from what the RECs sent from monitored primaries as stipulated by the Electoral Act?
INEC has no division.
Some of the court orders are served on the commission directly, so in one of the instances, the court said we should monitor the party primaries that was conducted by a state chapter of the party and we complied but the national office of the party involved went ahead and conducted a different party primary. By the time lists were being submitted, the party submitted the names of the candidates that emerged from their own primaries which was supervised and conducted by the national headquarters of the party and during the interval, there was also a court order from a court of appeal saying that it is the candidates that emerged from the one conducted by the national office that are the valid candidates. So, we weighed these variables in terms of our party monitoring reports in coming to a decision. It is INEC that comes into a decision relating to what to do, going forward, taking into consideration all the variables involved like court orders and that’s what has happened in terms of our having been given notice or not given notice. In effect, we have been courageous and we have looked at the justice of the case and taken decisions that are in the best interest of this country and that are in the best interest of our democracy.
So, how do we assuage the concerns of RECs whose reports appear to have been treated as outcomes of fools’ errand, wasted efforts?
Third Schedule, paragraph 14 of the 1999 Constitution says there shall be for each state of the federation and the federal capital territory, Abuja, a REC, who shall be appointed by the president…. And this is under the same section which talks about the body, INEC, as established.
You have to begin to read from 14 where it says the INEC shall comprise the following members – A Chairman, who shall be the Chief Electoral Commissioner and 12 other members to be known as National Electoral Commissioners and then in 15, it says the Commission shall have powers to …
Please hold on, in sub section 2, it says a member of the commission shall be non-partisan and so on…..
It also states in that 14, that there shall be for each state a REC, so RECs, too, are established as members of the commission…
No. They are not recognised as members of the commission. In 15(h), it says that the commission shall have powers to delegate any of its powers to any REC. That’s the point I’m making. The Constitution says that the Commission shall be the Chairman and 12 National Commissioners and these Commissioners shall have powers to delegate any of its powers to a REC, so, there is no dispute.
And I’m not aware that any REC is complaining but I’m trying to clarify issues relating to whether the Commission is bound under any circumstance, to accept the monitoring reports that have emerged from any REC. This is because if a REC has been directed by the Commission to monitor a party primary and he has submitted a report and within the intervening period, there is a court order saying don’t accept that report emanating from the one you monitored, accept the report from a different primary, I’m saying that as a Commission, we have the power and the right to take that decision without reference to the REC who must have monitored that primary in question.
You published a statement that INEC will stand by the reports of its REC, so how do you build confidence again?
No. It is not every party primaries that a REC monitors. We monitor party primaries across the board. Some of the monitors are sent from the headquarters to join them in the state. My assurance is that the national commissioners and RECs are working towards the same goal for a successful 2023 election
