Validity Of A Court-Ordered Rerun Primary Election Coming Less Than 180 Days Before the General Election

By J. S. Okutepa SAN

The 2023 governorship elections in Nigeria for elections of governors for the 31 States of Nigeria have been fixed for March 11, 2023, unless the date is changed by INEC.

The time to conduct primary elections and submissions of names of the candidates for various elective posts in Nigeria has been fixed by law.

As of the time of this write-up, some pre-election matters are either pending at the trial Courts or at the appellate courts of the land. News on social media showed that some courts have nullified primary elections conducted by some political parties and refused to order a re-run of the primary for such political parties because the time allowed by law to conduct a primary has since passed.

Some courts have on the other hand ordered a re-run within 14 days and some of the political parties are purporting to obey the said orders. In this write-up, it is proposed to interrogate the lawfulness or legality of court-ordered re-run primary for political parties given that the time to conduct and conclude primary elections and submissions of names of candidates has been fixed by law. Is there jurisdiction in any court in Nigeria to order a rerun of the primary in breach of the law? Before answering this all-important question it is necessary to look at what the law says and some decisions of our courts.

Take for instance section 29 (1) of the Electoral Act 2022 sets the templates or the time political parties are to conduct and submit the names of their candidates to INEC. It provides that: Every political party shall, not later than 180 days before the date appointed for a general election under this Act, submit to the Commission, in the prescribed Forms, the list of the candidates the party proposes to sponsor at the elections, who must have emerged from valid primaries conducted by the political party.

Section 33 of the Electoral Act 2022 which is crucial provides that: A political party shall not be allowed to change or substitute its candidate whose name has been submitted under section 29 of this Act, except in the case of death or withdrawal by the candidate, Provided that in the case of such withdrawal or death of a candidate, the political party affected shall, within 14 days of the occurrence of the event, hold a fresh primary election to produce and submit a fresh candidate to the Commission for the election concerned.

Section 84 (13)of the Electoral Act 2022 is clear that a political party that fails to comply with the provisions of the Electoral Act 2022, its candidates shall not be included in the election for that particular election. For clarity the section provides emphatically that: Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in the issue.

Going by the provisions of the Electoral Act 2022 cited above can it be legally right and within the jurisdiction of any Nigerian court to order a rerun primary, given the dates set for elections in Nigeria? Before answering this question let me say that INEC has fixed February 25th 2023 for the Presidential and National Assembly elections. And March 11, 2023, for governorship elections and State Houses of Assembly Elections. As of today, the 3rd of February 2023 to any of these days set for these elections is less than 180 days.

Given, the dates set for the elections, it is submitted that it is statutorily impossible for a valid rerun primary election to be ordered by any court. In making this submission it is necessary to be guided and refer to the decisions of our courts on the matter.

On the 1st February 2023, the Supreme Court of Nigeria delivered judgment in an appeal involving APC primary election for Taraba State. Although one is yet to get a copy of the judgment from what I read in the media which has not been denied it was reported that the Supreme Coury allowed the appeal and confirm the judgment of the Federal High Court.

It was reported that the Supreme Court upheld the judgment of the Federal High Court which granted reliefs 1-8. From what I read from the media the Federal High Court granted reliefs 1-10 to the plaintiff in that case. From what I read in the media reliefs 1-8 were basically to the effect that APC did not conduct primaries and do not have a candidate. Relief 9 it was reported that Federal High Court ordered fresh primaries within 14 days.

In allowing the appeal and setting aside the judgment of the Court of Appeal and restoring the judgment of the Federal High Court, it was reported that the supreme court refused relief 9 and restored the judgment of the Federal High Court only in respect of reliefs 1-8.

The clear implication of this is that the Supreme Court did not restore the orders of the Federal High Court in respect of relief 9 which ordered fresh primaries.

The implication of the decision of the Supreme Court going by section 84 (13) of the Electoral Act which provides that where a political party fails to comply with the provisions of the Electoral Act in the conduct of her primaries, the candidate of that party shall not be accepted for elections for the position in question, is that APC may not be on the ballot for governorship in Taraba State come March 11, 2023.

The further implication is that the Supreme Court by this judgment may have sent a clear signal that no court can order a rerun primary outside of 180 days to the date fixed for the election. Section 84 of the Electoral Act is clear and unambiguous. This provision in the Electoral Act 2022 is intended to deepen democratic principles and to sanitize the electoral process by ensuring that the political parties adhere strictly to the law or risk the sanction provided in section 84(13) of the Electoral Act 2022.

This is what the Supreme Court was reported to have said in the Taraba case, per his lordship Kudirat M. Olatokunbo Kekere-Ekun, JSC, “I, therefore, resolve Issues 3, 4, 5, 6 and 7 in favour of the appellant Having held that there was no valid gubernatorial primary election conducted by the 3rd respondent (APC) in Taraba State, Issues 8 and 9 have become otiose and accordingly discountenanced.”

His lordship was then reported to have concluded that: “in conclusion, I find merit in the appeal. It is hereby allowed. The judgment of the lower court delivered on the 24th day of November 2022 is hereby set aside. The judgment of the trial court is affirmed in terms of reliefs 1-8 only as contained in the Originating Summons. Parties to bear the cost.”

In January 2023, the Supreme Court in the case of Hon.Nnamdi Ezeani vs Hon.Jones Onyerere nullified the PDP primaries for Imo West Senatorial District. The Court held that the purported primaries conducted by PDP were illegal having been carried out in Owerri and not Orlu which is the Headquarters of the Senatorial Zone thereby violating section 87 of the Electoral Act.

His lordship Agim JSC held in that case that, since the time allowed by the Electoral Act 2022 for the conduct of primaries and submission of candidates’ names to INEC has elapsed, the PDP would not field any candidate for elections for the Imo West Senatorial Zone.

The above Supreme Court decision last month is fresh and would have a serious effect on primaries conducted outside the timeframe provided by the Electoral Act,2022. See also APC vs Karfi (2017)LPELR-47024(SC) at 63-67

From these decisions, it is my submission that no party can conduct a valid rerun outside the time fixed by law. It is also submitted that any rerun order made to be done outside the time fixed by law is an order made without jurisdiction and will have disastrous consequences on the candidates of that political party. Indeed such orders if challenged are liable to be set aside. The lesson here is that politicians must learn to allow internal democracy in their parties and avoid political opposition as appears to be the order of the day now in Nigeria.

Source: TNL