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Constitution, Electoral Act, INEC and 2023 Election – Part 3

By Mohammed Haruna
28 October 2022   |   3:30 am
And we all know that conducting primary elections is the constitutional prerogative of the National Executive Councils of political parties, not their State Executive Councils.

Mahmood Yakubu (Photo by Adam Abu-bashal / ANADOLU AGENCY / Anadolu Agency via AFP)

And we all know that conducting primary elections is the constitutional prerogative of the National Executive Councils of political parties, not their State Executive Councils. This is why INEC can only reject the name of any candidate forwarded to it by a party if it is dissatisfied with the party’s conduct of its primary, but cannot publish any name not sent to it by the party – unless so ordered by the Courts – even if the report of its monitors says he is the winner.

More specifically, this was why INEC could reject Akpabio’s name but could not publish Ekpoudom’s even though Igini’s report said he was validly nominated. Similarly, it was why the Commission could reject Lawan’s name but could not initially publish Machina’s, even though there was only one primary for Yobe North and the Commission’s report said he won it fair and square, the reason being his party did not at first forward his name until the Courts ordered it to do so and it obeyed, albeit reluctantly.

The long and short of all this is that until their cases are heard by the Supreme Court and it decides otherwise, neither Akpabio, nor Mohammed, nor Tambuwal have committed any illegality by falling back on their second options after failing in their first. Even Lawan committed no illegality by wanting to return to the Senate after failing in his bid for APC’s Presidential ticket, except that he tried to do so in violation of Sections 31 and 33 of the Electoral Act.

Now, if there is any ambiguity surrounding Akpabio’s case – or, for that matter, even Lawan’s – there is none whatsoever surrounding the status of RECs in INEC; contrary to Falana’s argument, they are NOT members of the Commission and it is not, as Falana says, “irrelevant and diversionary” to make the distinction between RECs and National Commissioners. His basis for equating the two is that RECs, like National Commissioners, are appointed by the President, subject to clearance by the Senate, and can be sacked by the President only if he is supported by two-thirds of its majority.

All this, of course, is true. However, relying on them only for his view betrayed the Senior Advocate’s incomplete reading of our Constitution. Section 153 (1) of the Constitution lists 14 Federal Commissions and Councils the Federal Government must establish, including the Federal Character Commission, National Population Commission, INEC and the Council of State. Section 14 (1) of its Third Schedule is quite clear as to who the members of INEC are. The Commission, it says, “shall comprise the following members – (a) a Chairman, who shall be the Chief Electoral Commissioner; and (b) twelve other members to be known as National Electoral Commissioners.”

Quite instructively, the Constitution has a separate Sub-section for RECs. This is Sub-section 3 which says “There shall be for each State of the Federation and the Federal Capital Territory, Abuja, a Resident Electoral Commissioner” who, like National Commissioners, will be appointed by the President, subject to confirmation by the Senate.
Nowhere in Section 14 of the Third Schedule does the Constitution say the 37 RECs mandated for the Commission are its members. The significance of this point should be obvious from the fact that in the comparable cases of the Federal Character Commission and the National Population Commission, the Constitution explicitly states that their members shall comprise “a Chairman; and one person to represent each of the states of the Federation and the Federal Capital Territory, Abuja.” In both cases, all their 37 Commissioners have their offices in their Abuja Headquarters, and not in states, as is apparent from the very title of INEC’s 37 RECs.

Again, it is also instructive that in appointing RECs, unlike in the case of the Chairman and National Commissioners, the President is not mandated, as in Section 154 (3) of the Constitution, to consult the Council of State. Not least of all, it is also instructive that while the Chairman and the National Commissioners are sworn into office by the President, RECs are sworn in by the Commission’s Chairman.

All this, of course, is not to disparage RECs. The fact that they are appointed by the President, subject to Senate’s approval, and can be sacked by the President only if supported by two-thirds of its majority, makes them very important. Experience also suggests that they are like Field Commanders in a war, elections themselves being wars of sorts. And you can’t win a war without effective, well-informed and well-motivated Field Commanders. You cannot also win a war without their inputs into decision making.

However, far from being “irrelevant and diversionary” to make the distinction between RECs and National Commissioners, as Falana argues, it is important to do so, if only because that is what the Constitution clearly prescribes.

At the beginning of this peace, I listed the expansion of voter access to Polling Units (Pus) from the roughly 120,000 it was stuck at for 25 years to 176,846 last year, as one of INEC’s achievements under Professor Yakubu. As Chairman, Yakubu was able to heal the deep division within the Commission along regional lines which had prevented the expansion of PUs, especially in the run-up to the 2015 General Election under Professor Attahiru Jega, his worthy predecessor. Also, by consulting widely with all major stakeholders in the electoral system – political parties, the media, civil society organisations, regional associations, traditional rulers’ councils, the clergy, etc., – the Commission was able to unite the country behind the expansion.

However, important as this achievement was for making it easier for voters to participate in elections, it is by no means as important as the improvements the Commission has made under Yakubu in the administration of the management of election results and the measured introduction of technology into the electoral process as well as in the role it played in the drafting of Electoral Act 2023 which has been widely acclaimed, at home and abroad, as highly progressive and an effective antidote generally to election malpractice.

Such is the improvement in INEC’s integrity, transparency and credibility today that it is like sunlight compared to darkness, juxtaposed to, say, the Commission under Professor Maurice Iwu barely twelve years ago when election results were a times announced even before polls had closed.

As we head into next year’s General Election, the Commission, of course, faces several challenges, among them those of widespread insecurity in the country, vote buying, misinformation and disinformation, and collection of Permanent Voters Cards (PVCs). All these were present in most of the elections the Commission conducted in the last two years, notably the governorship elections of Edo, Ondo, Anambra, Ekiti and Osun. Yet the Commission overcame them with, of course, more than a little help from all other stakeholders in the electoral system, notably the media, civil society organisations and the Nigeria Police and other security services that have behaved increasingly professionally and impartially in their handling of the security of our elections.

A General Election is, of course, much bigger in scale than off-season elections. However, given INEC’s record since the last General Election in 2019, there is every reason to believe it will overcome these challenges and give Nigeria its best election to date.


Haruna is a national commissioner at the Independent National Electoral Commission (INEC).