Validity and feasibility of virtual primary election in the wake of COVID-19 pandemic

In analyzing whether or not a virtual primary election (or just primaries) is possible in the face of COVID-19 pandemic, recourse must be made to Section 87 of the Electoral Act.

There is no gainsaying the negative impacts of COVID-19 pandemic on almost all the spheres of life, including politics, economy, religion and social-cultural life.

Knowing full well that this pandemic has come to stay with us for some time, at least, until a vaccine and treatment drugs are developed, we must as a matter of necessity continue to find ways of living and adapting to the new realities brought by COVID-19. The realisation of this necessity would help in broadening our horizons to think outside of the regular box.

To bring the issue home, prior to this ‘new normal’, a lot of jamborees and congregation of large crowds usually characterized political parties’ primaries. We see these happen when aspirants pick up their nomination forms, campaigns, consultative visits, etc. With the new reality foisted upon us by the novel corona virus otherwise known and referred to as COVID-19, all these have to be done away with, at least, in the short run. It is my view that since the norms have been disrupted by a novel virus, solutions and way forward from this disruptions must necessarily be novel as well.

STATUTORY REQUIREMENTS OF PRIMARIES
I must be quick to stress at this point that whatever method to be adopted must not run expressly against the extant laws. Primarily, Section 87 of the Electoral Act provides for nomination of candidates by political parties seeking to participate in an election. In summary, the section provides for three ways/means of nominating candidates for election.

These are: Direct primaries. Indirect primaries, and Consensus.
Please permit me to at this point express my preference for direct primaries in an attempt to introduce virtual voting for primaries. I am not unaware of the likely challenges that this might face. I will try as much as possible to give more clarity as we proceed. For better understanding, Section 87(3) of the Electoral Act, 2010 (as amended) provides: “A political party that adopts the direct primaries procedure shall ensure that all aspirants are given equal opportunity of being voted for by members of the party.” For me, the operative clause in the above section is the provision of equal opportunity to all the aspirants. What this means is that one aspirant should not be favoured above another. Put differently, all aspirants in a primary election must be put on the same pedestal.

In opting for the adoption of direct primaries, the sole requirement that political parties are enjoined to fulfill is to ensure that aspirants are given equal opportunity. If this is the case, virtual voting at primaries does not seem to offend the provisions of electoral act. What is important is to ensure that this procedure of voting doesn’t favour one aspirant at the detriment of others. In effect, this method will comply largely with the protocols on COVID-19 to wit, social/physical distancing, avoidance of large gatherings, etc and at the same time deliver a credible primary election by the party.

This method becomes desirable where compared to the complexities associated with indirect primaries at this peculiar time. For instance, indirect primary election to sponsor a gubernatorial candidate would require a special congress in the state capital with delegates voting for each of the aspirants at the congress to be held on a specified date appointed by the National Executive Committee (NEC) of the party.

It is important to note that the above section specifically call for a congress that must be held at a physical space to be determined by NEC of the party. Going on with this mode of primary would most likely offend the principle of social distancing and further expose members of the party to COVID-19 infection. To be categorical, the party cannot achieve virtual voting via an indirect primary.

WORKABILITY AND MERITS
The workability of this proposal is largely predicated on the assumption that the party has a reliable/credible members’ register. This register is what would be used in creating a database for the virtual voting with each member entitle to only one vote.
It is trite that political parties are empowered to issue guidelines for conducts of primaries. Thus, it is recommended that the party adopt a direct primary procedure.
The party is further advised to adopt guidelines prescribing the use of virtual voting. One of the merits attached to this procedure would be that if well-coordinated and implemented, it can serve as a prototype or model for INEC to adopt in the future in his quest to migrate to e-voting. This would have successfully made APC a pathfinder and a pace-setter.

CHALLENGES
The issue of cybersecurity is a major challenge with this method. We must ensure that this is put under check in order to achieve a credible pool. Credibility of members register. This must be watertight to guide against infiltration by members of the public who are not party members.

Illiteracy can also limit the workability of this method. Infrastructure and access to the internet is another very important factor.
The good news however, is that all these challenges can be taken care of by adequate preparation, sensitization and awareness.

ATTENDANCE AND OBSERVANCE BY INEC
The question may arise, how would INEC attend and observe political parties primaries if same is held virtually? This question is germane because Section 85 of Electoral Act makes it mandatory for political parties to give a minimum of 21days notice to INEC. This requirement can be met by making INEC an integral part of the whole process. This doesn’t in any way suggest that the commission will play an active role in the process but solely to observe same to be sure and to attest to the fact that all the aspirants were given an equal opportunity to be voted for by members of the party.

This statutory requirement is vital and must be adhered to. The main idea behind this is to give legitimacy to the whole process.

CONCLUSION
In summary, I’d like reiterate my support and approval for virtual voting for primary election in the wake of COVID-19 pandemic. It is however my considered opinion that this can validly be achieved by adopting a direct primary which do not expressly mandate or restrict procedures to a certain way.

Dr. Ajulo is the Managing Partner of Castle of Law, Abuja and former National Secretary, Labour Party.