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INEC
By Alexander Oketa Esq

The period/time for doing an act permitted or prescribed under the Electoral Act in the conduct of electoral activities is sacrosanct and cannot be jettisoned by the order of any Court or directions of the government or any of its agencies, except otherwise provided by law.

The EA is replete with time limits for the performance of different acts or activities in the buildup to the general elections provided for under the Act, but the instant discourse is in respect of the time allowed for the conduct of party primaries and whether the law court in a pre-election matter can order fresh primaries, in contravention of the periods clearly stated under the Act for the conduct of party primaries.

[2] Under the new Electoral Act 2020, Party Primaries must be held and names of duly nominated or sponsored candidates submitted to INEC not later than 180 days (about 6 months) before the date fixed for the general election by the Independent National Electoral Commission and any primaries held within a period that is less than 180 days to the Election, safe as specifically provided for under the EA, is null and void and of no effect whatsoever. See Section 29. (1) of the EA 2022 which provides thus:

“Every political party shall, not later than 180 days before the date appointed for a general election under this Act, submit to the Commission, in the prescribed forms, the list of the candidates the party proposes to sponsor at the elections, who must have emerged from valid primaries conducted by the political party” (underlining mine).

[3] Equally, the general practice of the Court to Order fresh primaries within 14 days after nullifying every party’s primaries contravenes Section 82(1) thereof makes it mandatory that at least 21 days’ notice must be given to INEC by any political party that intends to conduct a primary election. Section 82(1) of the EA provides thus:

“Every registered political party shall give the Commission at least 21 days’ notice of any convention, congress, conference or meeting convened for the purpose of “merger” and electing members of its executive committees, other governing bodies or nominating candidates for any of the elective offices specified under this Act” (underlining mine).

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[4] In fact, Section 29(5) of the EA provides that “Failure of a political party to notify the Commission as stated in subsection (1) shall render the convention, congress, conference or meeting invalid”.

[5]The only instance where a Court can Order the conduct of primaries within 14 days is in the case of the death of a duly nominated candidate. See Sections 33 and 34(3) (b) of the EA.

[6]The INEC guidelines for the 2023 elections made pursuant to section 149 of the EA show that the Presidential and National Assembly elections come up on the 25th day of February 2023 (less than 180 days to the general election) whereas the Gubernatorial and State Houses Elections are slated for the 11th day of March 2023 (less than 180 days to the general elections).

[7]The implication of the foregoing is that the time limit within which a primary election can be conducted or Ordered to be conducted, except as specifically provided by the Act, has elapsed, the time of the general elections now being less than 180 days provided by Section 29(1) of the EA reproduced hereinbefore.

[8]The only instances expressly provided by the EA where fresh party primaries can be conducted or ordered to be conducted anytime before the general elections are provided for in Sections 33, 34 and 36 of the EA, and they are as follows:

a. Death or withdrawal of a validly nominated Candidate: Section 33 of the EA provides thus:

“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 14 days 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).

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See also Section 34. (1) which further provides thus: “If after the time for the delivery of nomination paper and before the commencement of the poll, a nominated candidate dies, the Chief National Electoral Commissioner shall being satisfied with the fact of the death, countermand the poll in which the deceased candidate was to participate and the Commission shall appoint some other convenient date for the election within 14 days”.

b. Failure of nomination by any political party: Where at the time fixed by INEC or any time before the general election, it is found that no person was nominated by any political party for a particular position, Section 36 allows INEC to extend the time or fix new dates for primaries which may at the material time be less than 180 days to the general elections.

Section 36 provides that: “Where at the close of nomination there is no candidate validly nominated, the Commission shall extend the time for nomination and fix a new date for the election”.

(9) The consequences of non-compliance with the provisions of the electoral act by political parties in the conduct of its primaries is an outright nullification of the primaries and consequential exclusion from participation in the election in respect of that particular position in issue where at the time of the verdict of the court, it is less than 180 days to the general election. Section 84(11) succinctly puts it thus:

“Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue”.

[10] It is trite that the duty of the Court is to give interpretations to the law

passed by the legislature and not to enact or re-enact laws.

Consequently, the Court cannot order a fresh primary election in contravention of clear provisions of Section 29(1) of the EA, safe as

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provided for or allowed under Sections 33, 34 and 36 of the EA.

[11]Furthermore, in the interpretation of a statute, one of the cardinal rules is that the expression of one thing is the exclusion of other. This is expressed in the Latin maxim, expression unius est exclusio ulterius. It has been shown that the EA has provided only two instances where a fresh primary may be ordered without recourse to the requirement of at least 180 days to the general election. Those instances are in the death or withdrawal of a duly nominated candidate and failure of the nomination of candidates by any political party at the close of nomination, and No other. None of the instances suggests that where a primary election is nullified on grounds of non-compliance with the provisions of the EA by a political party in the conduct of its primaries, a fresh primary can be ordered anytime less than 180 days to the general election mandatory for the close of nomination as stated under section 29(1) of the EA. To give it such a wide and wild interpretation will be absurd and defeat the very essence of decorum, harmony and orderliness sought to be entrenched by the imposition of time for the conduct of party primaries under the new EA, which the Courts should rather guide jealously.

[12]The powers vested on the Tribunal for enlargement of time for doing of an Act contemplated by paras 45(1) of the 1 st Schedule to the EA is only in respect of “rules of procedure for Election Petitions” outlined for the doing of an act or taking of steps in the proceedings of an election petition before the Tribunal or appellate Court and can by no means be interpreted as vesting powers on the Court to extend the time for the conduct of primaries in pre-election matters.

 

Alexander Oketa Esq is a legal practitioner based in FCT, Abuja.

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