A Political Party has no Right to Disqualify Aspirants Under the New Electoral Legal Regime of 2022

By A.J. Owonikoko SAN 

I am concerned that if the rave report that APC has disqualified or been advised by its screening committee to disqualify 10 of its 23 prequalified presidential aspirants is true, then, APC might have unwittingly self-disqualified itself from participating in the 2023 Presidential election. The screening they carried out beyond being secretarial filtering, has no support in law if the intendment was to use internal party criteria or rules to disqualify aspirants who duly obtained, completed, and rightly submitted nomination form. They could only have erected internal barriers at the point of submission of the expression of interest form or by notifying aspirants of substantial defects in the completed nomination upon submission.

Once that stage is scaled and the nomination form has been duly submitted, it will appear that every aspirant who satisfied the constitutional requirement to contest for the office of President of Nigeria can ONLY be disqualified on that and no other basis whatsoever. Section 84(3) of the Electoral Act, 2022 is a novel provision. But it is not altogether new in our electoral legal framework. In the Electoral decrees predating the 1999 election, there used to be provision vesting power of screening of candidates in the electoral bodies. But given the mischief suffered by aspirants who were often cynically disqualified arbitrarily, it was not carried into the transitional electoral law enacted to midwives’ return to democratic government in 1999. It has not since then been reintroduced.

However, the internal affairs rule of political parties was resorted to before actual primary elections to screen out undesirable aspirants from being placed on the ballot. This has the effect of preventing such putative aspirants from having the locus to challenge the result in court – since only actual aspirants who must have participated in the primaries has the standing to litigate the outcome. Alas! Under section 84(3) of the EA 2022, it Is expressly forbidden to disqualify an aspirant from party primaries on grounds outside of those that would render him disqualified under the Constitution of Nigeria to be a candidate at the general election. It does not matter that the party invoked provisions of its own registered constitution, internal rules or regulations to support the disqualification.

Section 84(3) of the Act under the subheading Qualification of Aspirants and Candidates,  states – “A political party shall not impose nomination, qualification or disqualification criteria, measures, or condition on any aspirant or candidate for any election in its constitution, guidelines, or rules for nomination of candidates for elections, except as prescribed under sections 65, 66, 107, 131, 137, 177 and 187 of the Constitution .”

Sections of the constitution of Nigeria are cited in the provision relating to elective offices of the senator, member house of reps, state houses of assembly, President, and governor, respectively.

This law merely codified and extended to aspirants what the Supreme Court has severally restated as the only legally enforceable criteria for disqualifying candidates at general elections. Any reading of previous pre-election cases to, avoid compliance, or permit contrary interpretation of section is a legal gamble at best – or more realistically, an unpardonable misarticulation of what the law is. Circumspection and respect for the proper working of rule of law should guide political parties in taking an overtly indulgent view of what the court will say about a party primary held by unlawfully excluding some otherwise qualified aspirants in ignorance or defiance of the prohibition contained in section 84(3) of the Electoral Act, 2022.

This note of caution is all the more instructive when it is appreciated that “aspirant” as defined in the interpretation section 152 of the Electoral Act, 2022 is wider and more accommodating than the connotation of the expression in previous electoral Acts- it is enacted to mean “… a person who aspires or seeks or strives to contest an election to a political office.”

When in doubt (as we should all be until the section is judicially interpreted and tested) let all aspirants have their day on the convention ground.

A.J. Owonikoko SAN FCArb. 3rd June. 2022.