Ahead of the 2023 general election in Nigeria, political parties have conducted their primary elections to determine their lists of candidates for elective positions. What is however interesting, without delving into the peculiarity of Nigerian politics, is the terms that came up in the numerous analysis, discourse and speculations that trailed the conduct of these primary elections. Furthermore, the plethora of judicial decisions on election (and election petitions) validates the tendency for primaries (as well as general election) to become subjects of litigation. Using legislative enactments and judicial decisions, this article discusses the procedures set down for the nomination of a political parties’ candidates and the requirements in an action to challenge the result of such primaries.
With respect to complaints challenging the result of primaries, issues bothering on the question of the appropriate committee for the conduct of a primary election, the competent court to entertain the action and the locus standi to bring an action to challenge the result of such election is pertinent. The reason is because these issues strike at the very foundation of jurisdiction which is considered fundamental, and without which any action instituted would be struck out and any trial conducted would be a nullity, notwithstanding the diligence, dexterity, and objectivity channeled into the entire proceeding. See Madukolu v. Nkemdilim (1962) 1 ALL NLR 587 and Elugbe v. Omokhafe (2004) 18 N.W.L.R (Pt. 905) 319. It is important to note that an action of this nature can be subsumed under the pre-election matter recognised by section 285(14)(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
- Locus Standi
The judicial authorities on this subject are clear that an action to challenge the result of a primary election can only be brought by participants. By this, we mean aspirants for a political party’s ticket. Emphatically, it is required that complainants must have participated in the primary election organised by a competent authority, and this would be discussed subsequently. As held by the Court in Igwemma v Obidigwe [2019] 16 NWLR (Pt. 1697) 117, the locus standi conferred by this section can only be invoked by a person who participated in the authorised primary election either as a candidate or an aspirant. See also Davidson v. P.D.P [2019] 6 N.W.L.R (Pt. 1668) 330.
In addition to the capacity of a complainant to bring an action, the ground on which such action can be instituted is extremely narrow. The extant law, precisely in section 87(9), limits the ground of complaint to be “non-compliance with the provisions of the Act and the guidelines of the political party”. See Oduah v. Okadigbo [2019] 3 N.W.L.R (Pt. 1660) 433 and P.D.P v. Ezeonwuka [2018] 3 N.W.L.R (Pt. 1606) 187. This emphasises the necessity for a political party to be guided and not act arbitrarily. See Uzodinma v. Izunaso (No. 2) [2011] 17 N.W.L.R (Pt. 1275) 30.The same is provided for under section 84(14) of the Electoral Act 2022.
As such, all other persons other than the aspirants in a primary election are statutorily exempted from applying to challenge the result of such election, and generally, to complain of non-compliance with the provisions of the Act and the guidelines of a political party with regards to the selection or nomination of the party’s candidate under section 84(14) of the Act or institute any matter under section 29(5) of the Act.
2 The Proper Court to Institute this Action
One of the highlights of the Electoral Act 2022 is the shift from the concurrent jurisdiction vested on the Federal High Court, High Court of a State and the High Court of the Federal Capital Territory under section 87(9) of the extant law to the exclusive jurisdiction vested on the Federal High Court to entertain an action to challenge the result of primaries. See the provision of section 84(14) of the EA 2022.The law is clear that an action of this nature must be instituted at the Federal High Court.
Moving on, political parties are bound by the CFRN 1999, the Electoral Act, their own constitutions or guidelines in the conduct of primary elections. As such, primaries held shall be monitored by the Independent National Electoral Commission (INEC) pursuant to section 84(1) of the EA 2022.
The appropriate committee to conduct a political party’s primary election is not specified under the Act. However, the provisions of section 84(5) of EA 2020 which is impari materia with section 87(5) of the extant Act provides that the designated centre for the nomination of the presidential and governorship candidate is to be agreed upon by the National Executive Council. The interpretation given by the Court in Emenike v. P.D.P [2012] N.W.L.R (Pt. 1315) 556 is that the extant Act does not recognise a primary election conducted by the State Executive Committee of a political party.Notwithstanding, bearing in mind the literal provision of both Acts that the National Executive Committee is to agree on the centre designated for the nomination of the presidential and governorship candidate, it might be extending the provision too far to exclude a party’s State Executive Committee from organising the nomination of its gubernatorial candidate.
It is common for the National Executive Committee of a political party to set up a committee or screening panel for that purpose. In the event of the latter, only the authorised committee can organise a competent primary election and declare a winner. Combining this with capacity requirement (locus standi) discussed above, it is not enough that a person challenging the result of a primary election must have participated in an election, the person must have participated in the primary election organised by the authorised committee. In addition, only a result announced by the authorised committee or any of its members would be valid.
In Davidson v. P.D.P [2019] 6 N.W.L.R (Pt. 1668) 330, the appellant emerged the winner of the primary election conducted at the Nkwo-Nike Primary School II. However, the 4th respondent emerged winner of the election conducted at the Nkwo-Nike field and monitored by INEC. Furthermore, the other delegates that participated in the same election as the 4th respondent were recognised by the party and its National Working Committee. The Supreme Court held the election that produced the 4th respondent as the winner to have been the election organised by the authorised committee with respect to Enugu East/Isi Uzo Federal Constituency seat at the Federal House of Representatives. In the words of Galume, J.S.C, “The primary election which produced him as the candidate in the general election was not authorized by the 1st respondent, as it was not conducted in substantial compliance with its constitution and guidelines. The appellant is therefore a busy body who was on a frolic of his own”. (Emphasis mine)
See also Etim v. Akpan [2019] 1 N.W.L.R (Pt. 1654) 451, Emenike v. PDP & Ors (2012) 12 N.W.L.R (Pt. 1315) 556, and Akpatason v. Adjoto [2019] 14 N.W.L.R (Pt. 1693) 389
Having discussed matters related to the challenge of a result, this article moves on to the procedures for primary elections and consequently for the nomination of candidates. Section 84(1) of the EA 2020 stipulates these procedures to be direct, indirect primaries and consensus. For direct primaries, all registered members of the political party are eligible to vote for aspirants at any of the designated centres at the national, state, senatorial, federal and state constituencies. However, special conventions and congresses are further required to be held to ratify the candidate with the highest numbers of votes at these designated centers. It is important to note that nomination of a councillorship candidate can only be by direct election in the ward.
Unlike the direct primaries, delegates vote for their aspirants during a special congress or convention in designated centres at the constituencies relevant to the positions the candidates are being nominated for. This centre is to be in the Federal Capital Territory or any other place within the Federation for the nomination of the presidential candidate; in the State Capital or any other place within the state for the nomination of the gubernatorial candidate; in the senatorial district, federal constituency, and the state constituency for nomination of candidates for Senate, House of Representatives and a State House of Assembly; and in the Area Council for the nomination of a Chairmanship position. The winners are required to win by a majority vote and to be declared at the primaries.
Voting is not required for a consensus candidate. Rather, a political party is mandated to secure the written consent of the cleared aspirants which indicates their voluntary withdrawal and their endorsement of the consensus candidate. In the event that this written consent cannot be secured, the political party is to use direct or indirect primaries for the nomination of its presidential candidate, gubernatorial candidate, chairmanship candidate, and into the Senate, House of Representative and a State House of Assembly. In the event that the written consent is received, a special convention or congress is to be held to ratify the choice of consensus candidates at the relevant constituencies. Similarly, where there is only one aspirant for these elective positions, a special convention or congress is to be held to confirm the candidate. It is important to mention that the provision for a consensus candidate is one of the innovations brought by the EA 2022.
As a conclusion, primaries are indispensable in the entire electoral process in Nigeria because they are the basis on a political party’s candidates are nominated.