The Constitution, Electoral Act, INEC and 2023 Election

The trigger for this rather longish article is the controversy that has surrounded recent party primaries for candidates for next year’s two-part General Election which will begin with those of the President and members of the National Assembly on February 25, 2023, and end with those of State Governors and members of State Houses of Assembly two weeks later, i.e., on March 11.

But first, a caveat. This piece is not the official position of the Independent National Electoral Commission (INEC) of which I am a National Commissioner. Broadly speaking, INEC has three spokesmen none of which I am.

The chief spokesman is the Chairman of the Commission himself, Professor Mahmood Yakubu, not just because as Chairman he is the only one with a bird’s eye view of the Commission, but also because no one has defended and promoted the Commission’s image more eloquently and more knowledgeably, off-the-cuff and in prepared speeches than the man himself. Almost everyone who has monitored INEC’s activities in recent years will, I am sure, attest to this.

However, even more, important than his words is his record since October 2015 when he first became Chairman; as the saying goes, action speaks louder than words.

Through his hands-on and consultative approach and his attention to detail, the Commission, under him, has become arguably the most credible and well-regarded institution in the country. Evidence of this, among other things, is the Commission’s expansion of voter access to its Polling Units which was stuck at roughly 120,000 for 25 years until last year when it increased to 176,846.

There is also increasing almost universal applause for every one of the 105 off-season governorship and legislative bye-elections the Commission has conducted since the last General Election in 2019, the last of which was the Osun Governorship election in July.

This last election was widely acknowledged as the Commission’s freest, fairest and most credible so far, by all standards. It is noteworthy that each of the elections was generally adjudged better than the one before and they were variously won and lost by the ruling and opposition parties alike, something that cannot be said of the Local Government elections conducted by virtually all the so-called State Independent Electoral Commissions in all the 36 states of the Federation since the return of democracy in 1999.

The second spokesman for the Commission is Barrister Festus Okoye, the National Commissioner who, as supervisor of the Commission’s Voter Education and Publicity Department, is its official spokesman. Okoye, the senior human rights lawyer and activist, came to this job well recommended by his experience and knowledge of the country’s electoral law and practice. Most people will agree with me that, as INEC’s official spokesman, he has been forceful, vigorous and effective in defending the Commission’s decisions and actions.

The third spokesman for the Commission is the Chairman’s Chief Press Secretary, Mr. Rotimi Oyekanmi. Actually, Oyekanmi is more a spokesman for the Chairman than for the Commission. As such he has, as a journalist himself, be more in action interacting quietly and effectively with media men and women at a personal level convincing them of the fidelity of his principal to the Commission’s mission, vision and values than in public speaking in defence of its image.

Having entered my caveat, let me return to what triggered this piece in the first place. On June 18, a friend sent me an article by the US-based syndicated columnist of Nigerian Tribune (among other newspapers), Professor Farouk Kperogi, who teaches Mass Communications at a university in that country. Kperogi, a brilliant and rigorous writer and journalist, was a must-read for me until sometime last year when I noticed all he would write about, column after column, was how terrible President Muhammadu Buhari was, especially as a leader, in the foulest language you can think of. For me, civility in language has always been a key consideration in what I choose to read.

This was how I missed Kperogi’s angry piece titled “Lawan, Akpabio and INEC’s Crippling Moral Crisis”, in which he condemned INEC for his belief that we had accepted Ahmed Lawan’s name as the Senatorial candidate of All Progressive Congress (APC) for Yobe North while rejecting that of Godswill Akpabio as the party’s candidate for Akwa Ibom North West. Both had contested in, and lost, the party’s Presidential primary election held on June 9.

Based on the country’s new Electoral Act 2022, the Commission, Kperogi said, should have rejected both names. In an apparent fit of anger, he went personal by singling the Commission’s Chairman, Okoye, its official spokesman, and myself for condemnation.

The simple answer to his angry piece, I said in my reply to him via WhatsApp, was that INEC had no powers to reject candidates sent by political parties. Our role, I said, was simply to monitor party primaries to ensure they adhered to the country’s Constitution, the Electoral Law and their own constitutions and issue, on request, certified true copies of our reports as possible evidence in court in support of any aspirant who felt dissatisfied with the outcome of his party’s primary.

The Commission, I said, had not picked and chosen between Lawal and Akpabio but had merely received the two names and were yet to publish same, or for that matter, any names, in accordance with Section 29 (3) of the new Electoral Law which mandated such publication within a week of submission of names of candidates, for claims and objections. Mere receipt of the names did not, I said, automatically translate into acceptance.

Later that day, Kperogi replied to my text and said he found my clarification “very useful and insightful”. He then sought my permission to publish the clarification and I gave him the go-ahead.

Four days later, on June 22, he forwarded to me an online newspaper interview by my friend, Mr. Femi Falana, SAN, in which the civil rights activist said I was wrong to say that INEC was powerless to reject illegally nominated candidates by parties.

A new Section 84 (13) of the Act, combined with Section 29 (1), Falana said, gave the Commission the power to accept only the names of candidates that have emerged through a “valid primary”, as variously defined in several sub-sections of Section 84. Kperogi asked me if I had any response to Falana’s view. I replied that I had and agreed that the Senior Advocate was right and I was wrong because my opinion did not take Section 84 (13) of the Electoral Act 2022 into consideration.

I told Kperogi that at the time I responded to his piece, the Commission was yet to meet, as it always does on such issues, to take a position on the publication of the names of candidates submitted to it by the parties for claims and objections, and so I was merely expressing my personal opinion. The mistake I made, in retrospect, was to have permitted him to publish it, knowing it was likely to be construed as the Commission’s position.

However, all this is now academic. On June 24 INEC published the personal particulars of the Presidential and National Assembly candidates of political parties for claims and objections without those of Lawal and Akpabio which APC had submitted to it.

The two were omitted after the Commission met following the June 17 deadline for submission of the particulars by all political parties, and arrived at the conclusion that neither of the two had been validly nominated. In other words, we did not discriminate between Akpabio and Lawan in favour of the latter, as Kperogi had accused us of.

To be continued tomorrow

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