Eligibility to contest election into elective offices under the 1999 constitution

AS the Nation prepares for the February 2015 Election, the educational qualifications of candidates contesting the office of the President of the Federal Republic of Nigeria, has generated endless controversies. Two Schools of thought are locked in the controversy. The dominant School of thought has asserted loudly and clearly, that a person is not eligible to contest election to the office of the President unless he/she produces a Secondary School Leaving Certificate or its equivalent. It has been and it is still being contended that candidates must possess/produce educational qualification of at least Secondary School Leaving Certificate or its equivalent in order to be eligible to contest the on coming elections. Section 131 (d)of the 1999 Constitution (as amended) has been cited in support of the contention by proponents of that view to support their position. The said Section provides: “131. A person shall be qualified for election to the office of President if- (d)he has been educated up to at least school certificate level or itsequivalent.”

    Candidates contesting election to other elective positions must also possess a similar qualification. This is in view of the prescription in other provisions of the Constitution that candidates to elective post must have been educated up to at least school certificate level or its equivalent. Section 177 (d) prescribes that candidates contesting election into the office of State Governor must have been educated up to at least School Certificate Level  or its equivalent. By virtue of Section 142(2) and 187(2) the provisions on educational qualification of President and State Governors apply to Vice President and Deputy Governors respectively. Section 65(2) (a) and 106(c) of the Constitution prescribes that candidates contesting elections as National Assembly and State House of Assembly members respectively must also have been educated to at least School Certificate  Level.

    It is against the backdrop of Section 131 (d) of the Constitution that the Independent Electoral Commission (INEC), has been and is still being invited, to disqualify General Muhammadu Buhari (APC’s Presidential candidate) from contesting the upcoming Presidential Election. It is likely that more requests will be made to INEC to disqualify other candidates, on the same ground of lack of Educational qualification of “school certificate or its equivalent”.

    This article seeks to place adequate information at the disposal of all concerned. The article educates further all concerned on the requirements of educational qualifications of persons contesting election to the office of the President and other elective posts in the coming 2015 Election. This article demonstrates, that under the 1999 Constitution, production of Secondary School Certificate or it’s equivalent is not a mandatory requirement of being eligible to contest election into an elective post. 

    Undoubtedly, Section 131(d) of the 1999 Constitution (as amended) prescribes Secondary School Leaving Certificate as the minimum educational qualification of candidates contesting election to the office of the President of the Federal Republic of Nigeria. It stipulates that candidates must be “educated up to at least School Leaving Certificate Level or its equivalent.”

    When the above provision is construed in its ordinary grammatical meaning, persons who do not possess the Secondary School Leaving Certificate or its equivalent are not qualified to contest election to the office of President. In other words, upon a cursory reading of the provision of Section 131(d), it is easy to come off with the impression that unless a person possesses the Secondary School Leaving Certificate or its equivalent (Grade II Teacher’s Certificate, the City and Guilds Certificate), he or she is ordinarily not eligible to contest election to the office of the President of Nigeria. Similar interpretation will be given to other provisions on qualification of candidates in respect of other elective posts/offices.

    The above provision must however be read along with Section 318(1) of the said Constitution, which is the interpretation Section. It becomes crystal clear, upon a careful reading of the said Interpretation Section, that even persons whose educational qualifications are below the Secondary School Leaving Certificate/level and its equivalent are still qualified to contest election, if they possess the Primary Six School Leaving Certificate or its equivalent along with the other requirements listed under the said definition Section (Section 318 (1)).

    For the avoidance of doubt, Section 318(1) provides: “School Certificate or its equivalent” means – (a) a Secondary School Certificate or its equivalent, or Grade II Teacher’s Certificate, the City and Guilds Certificate; or (b) education up to Secondary School Certificate level; or (c) Primary Six School Leaving Certificate or its equivalent and- (1) service in the public or private sector in the Federation in any capacity acceptable to the Independent National Electoral Commission for a minimum of ten years, and (11) attendance at courses and training in such institutions as may be acceptable to the Independent National Electoral Commission for periods totalling up to a minimum of one year, and (111) the ability to read, write, understand and communicate in the English language to the satisfaction of the Independent National Electoral Commission; and (d) any other qualification acceptable by the Independent National Electoral Commission;”

    There is the need to acknowledge the trite rule of interpretation of Statutes which is to the effect that a Section of a Statute should not be construed in isolation. All Sections in a Statute must be interpreted conjunctively, especially where the Statute has a definition Section, as it is the case with the 1999 Constitution (as amended). Section 131(d) must therefore be construed in conjunction with Section 318 (1) of the Constitution which defines the words “School Certificate or its equivalent.”

    It is evident from the above definition Section of the Constitution (Section 318(1)), that the meaning of “School Certificate or its equivalent”, for the purpose of Section 131(d) of the Constitution, is very liberal and accommodating. The provision accommodates persons with the Primary School Leaving Certificate coupled with private or public sector experience and who have attended courses and training for periods totalling up to a minimum of one year. Such primary school Certificate holders must also demonstrate ability to read, write, understand and communicate in the English language to the satisfaction of INEC. 

    The definition of “School Certificate or its equivalent” also includes candidates who are educated up to Secondary School Certificate level. These candidates need not produce Certificates evidencing that they passed Secondary School Examination. What they must produce is evidence of being educated up to Secondary School level. This is unlike the other requirement of Secondary School Certificate or its equivalent or Grade II Teachers Certificate, or City and Guilds Certificateunder Paragraphs (a) of the definition. The difference between (a) and (b) above is that under (a), production of a Certificate is mandatory. 

    In (b), what is required is evidence of “education up to Secondary School Certificate level”. While it may well be that production of a Certificate is evidence which proves (b), it is not the only mode of proving (b). Testimonials, Reference Letters and Affidavits are legitimate vehicles of proof that a candidate has been “educated up to Secondary School Certificate level.“As a matter of fact, the (d) part of the above definition is much more elastic and accommodating. It recognizes “any other qualification acceptable to the Independent National Electoral Commission” as a qualification to contest election to the office of President and other elective posts. It suffices to state that a candidate who relies on (c) must also produce his/her primary school leaving certificate. 

    The provision of Section 318(1) was construed by the Court of Appeal in the case of BAYO v. NJIDDA (2004) 8 NWLR (Pt. 876) page 544 at 629H-630D, where Ogbuagu, J.C.A (as he then was) held: “The above provisions, are conjunctive and they qualify or mean “school certificate or its equivalent.” So, if any one of them is not present/ available, then, the candidate is out. Therefore, even if (i), (ii), (iii) and (d) are acceptable by or satisfactory to INEC and therefore, cannot be questioned in a tribunal as being final, the absence of (c), also disqualifies the candidate.

    I wish to point that unlike the provision in (b)-i.e. “(b) education up to secondary school certificate level,” or, in (c), it must be the obtaining or possession of a primary six school leaving certificate or its equivalent. It could be observed that in (b) there is no “or its equivalent”.

In other words, as regards a secondary school certificate level one does not have to pass the secondary school certificate examination. It is enough, in my view, that one attended a Secondary school and read up to secondary school certificate level i.e. without passing and obtaining the certificate.

But in the case of (c), one must have passed and obtained the primary six school leaving certificate. It could be seen that the draftsman of these provisions, carefully chose the words.”

    Nzeako, J.C.A (as she then was) held at page 619 paras. G-H, in the above case,thus: “In effect a person seeking to become a candidate for an election to the House of Assembly of any state in the Federal Republic of Nigeria must possess at least one of the qualifications set out in (a) or (b) or (c) (supra)

In the case of (c), he must in the first instance possess, primary six school leaving certificate or its equivalent, (in some states there used to be primary 7 as the final class in Primary school), and in addition evidence of (i), (ii) and (iii) above all together.

It follows that a person who is not educated up to school certificate or its equivalent, may still qualify for election to the House of Assembly of a state if he has primary six school leaving certificate plus evidence or fulfilling every one of the conditions in (i), (ii) and (iii). If the person possesses primary six certificate but fails to provide evidence of any of the above (i), (ii) or (iii), he does not qualify.

    In CHUKWU v. ICHEONWO (1999) 4 NWLR (Pt.600) page 587 at 596 paras. B-F, the Court of Appeal was faced with the interpretation of provisions of Section 99(1) of the Local Government (Basic Constitutional and Transitional Provisions) Decree No. 36 of 1998 which contained similar definition of school certificate or its equivalent. In answer to the question, whether a candidate must possess/produce school certificate, in order to satisfy requirement of being educated to the minimum level of school certificate or its equivalent, the court held thus: “it is erroneous to hold as learned counsel has argued that to satisfy the condition of educational qualification, the candidate must possess a Secondary School Certificate. The interpretation given by the tribunal on this issue of educational qualification is unassailable. I agree that since there is evidence that the 2nd Respondent sat for the School Certificate examinations in May/June 1975, this is sufficient to satisfy the requirement of section 10(c) of the Decree. While acquisition of sound education may be desirable to enable one discharge the functions of Chairman of a Local Government Council, it is not absolutely necessary that such person must possess a Certificate to enable him function effectively.” 

    The definition Section (Section 318(1)) also vests INEC withpowers to determine a candidate’s literacy level. Under Paragraph (b), the capacity in which a candidate served in the private or public sector must be acceptable to INEC.  The courses and training attended by a candidate must also be in Institutions acceptable to INEC. Finally, a candidate’s ability to read, write, understand and communicate in the English language must also be to the satisfaction of INEC.

    The key words in the definition Section are “acceptable”to and “satisfaction” ofINEC. These words are subjective in the sense that where INEC is satisfied with a candidates training and qualifications or where the qualifications of a candidate are acceptable to INEC, it is doubtful if the decision of INEC can be challenged successfullyby a candidate’s opponent. The words “to the satisfaction of” and“acceptableto”, in theirordinary grammatical meanings, acknowledge subjectivity on the part of INEC. The word acceptable is synonymous with being in agreement with, approval, not very good but good enough, welcoming, pleasing, satisfactory, adequate or worth accepting. Satisfaction means a state of being satisfied, that which satisfies, content or pleasing. 

    From the angle of Law of Estoppel, where INEC has previously been satisfied with or accepted a candidate’s educational qualifications in previous Elections, and allows such a candidate to contest election(s) the same INEC would be estopped from disqualifying the same candidate in future Elections on the ground of lack of educational qualification. 

    Estoppel prevents a person from blowing hot and cold, approbating and reprobating on an issue. Therefore, where a person makes a representation expecting it to be acted upon, and another person acts on that representation, the former is estopped from resiling from his/her representation. The above principles of Law have been judicially endorsed in the following authoritative Legal decisions. 1. Ude v Nwara (1993) 2 NWLR (Pt. 278) Pg. 638 at 662, Para.G -PerNnaemeka-Agu J.S.C: “By operation of the rule of estoppel a man is not allowed to blow hot and cold, to affirm at one time and deny at the other, or, as it is said, to approbate and reprobate. He cannot be allowed to mislead another person into believing in a state of affairs and then turning round to say to that person’s disadvantage that the state of affairs which he had represented does not exist at all or as represented by him.” 2. Jadesimi v Okotie-Eboh; In Re Lessey (1989) 4 NWLR Pt 113 Pg 113 at 125, Para. B – Per Akpata J.C.A.: “A party cannot be heard to approbate or reprobate. He will not be allowed to base his action or defence, whether by pleadings or affidavit evidence, on a set of facts then depart from the set of facts on which issues had been joined to meet the case of the other side.”

    Conclusion: It is evident from Section 131 (d), read along with Section 318 (1) of the Constitution, that a candidate need not produce a Secondary School Certificate or its equivalent Certificate in order to be qualified to contest election into the office of the President of the Federal Republic of Nigeria or any other elective post. Candidates who are educated up to Secondary School Certificate level are qualified to contest Elections under the 1999 Constitution. Persons with Primary Six School Leaving Certificate or its equivalent, provided they satisfy the other requirements listed under Paragraph (c)(i), (ii), and (iii) of the definition of “School Certificate or its equivalent” in Section 318 (1), are also qualified to contest election into elective offices, including that of the President. Finally, persons with “any other qualification acceptable to the Independent National Electoral Commission” are also qualified to contest election under Paragraph (d) of the definition Sectionset out above.

    The elasticity of the definition of “School Certificate or its equivalent” in Section 318 (1) of the Constitution may be questioned against the backdrop of providing a Platform for candidates who lack sound educational background to aspire to elective offices, in a Nation which prides itself with aspirants with sound educational qualifications.The said provision can also be questioned on the ground of the enormous power vested in INEC with regard to being satisfied with a candidate’s educational qualification or the educational institutions/qualifications being acceptable to INEC.

    Such query, in my view, can only highlight the need for Law Reform. The query merely raises issues of the Law as it ought to be. However, from the view point of the Law as it is, a candidate whose educational qualifications/institutions attended are acceptable to INEC and who is educated to a level which is satisfactory to INEC, is eligible to contest election to elective offices/posts in Nigeria in the upcoming February 2015 election. 

• Prof. Osipitan, SAN is of the faculty of Law, University Of Lagos.