The constitution, electoral act, Lawan, Akpabio, Falana, INEC and next year’s general 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 details, 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 the 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, 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, been 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 publicly speaking in defense 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 in a university in that country. Kperogi, a brilliant and rigorous writer and journalist, was a must read for me until sometimes last year when I noticed all he would write about, column after column, was how terrible President Muhammadu Buhari was, especially as 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 “Lawal, 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 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.  

As we all know by now, both cases went to court after our publication. Akpabio won but Lawal lost, a loss he said he would not contest but which his party initially said it would but later changed its mind and wrote to the Commission to forward the name of Alhaji Bashir Machina, the winner of the Yobe North Senatorial primary.  

After the Falana interview Kperogi sent to me, the outspoken lawyer had another with Channels Television which Saturday Vanguard transcribed in its edition of July 30. In that interview, Falana argued that it was criminal for anyone to engage in more than one primary in one election, in apparent reference to the Senatorial bids of Lawan and Akpabio. “They,” he said, “contested in that one. They cannot contest in another primary.” 

In that same interview, Falana said INEC’s Resident Electoral Commissioners (RECs) are recognized as members of the Commission by the Constitution with the implication that RECs, like National Commissioners, can make and speak on policies of the Commission. There are, he said, “two sets of public officers in INEC. The Chairman, National Commissioners and RECs appointed by the President and their names are sent to the Senate for confirmation…They represent one group. The second group of public officers of INEC are the officers of INEC appointed by INEC.”

Clearly, Falana was speaking in support of his fellow lawyer Mr. Mike Igini, whose second tenure ended this year as the REC for Akwa Ibom, and whose outspokenness on election matters throughout his two tenures seems to have endeared him to the Nigerian media. He has, in recent times, been particularly scathing in his well-publicized remarks about APC’s nomination of Senator Godswill Akpabio, two-term governor of the State and one-term Senator, as its candidate for Akwa Ibom North-West Senatorial District following a reconduct of the primary after he lost out in the party’s Presidential primary. Akpabio, the former REC has said in effect, was a pretender to the party’s ticket rightly won, in his view, by a retired Deputy Inspector General of Police, Udom Udo Ekpoudom, based on his own report of the party’s primary he personally monitored.

If I was wrong and Falana was right about INEC being powerless to reject names of candidates that, in its view, were not validly nominated, he couldn’t have been more wrong in his contentions that it is illegal to contest in more than one primary in one election and that RECs are members of INEC.

To begin with his position that one cannot contest in more than one primary in one election. It seems to me that, the perceptive and insightful lawyer that he is, he has mistakenly equated aspiration with candidature. In this he seems to have been joined by Vanguard which said in its editorial of August 3 that violators of the law against double nomination should be prosecuted, after describing some alleged violators in both APC and PDP, but without naming them.

“We”, the newspaper said, “call on INEC not to allow these violators to escape with mere disqualifications. That would be a mere slap on the wrist.” Rather, it said, “INEC should honour the Electoral Act by arraigning these violators.”

Vanguard, as I said, named no names. But reading in between the lines it was obvious that the newspaper had in mind at least Lawal and Akpabio from APC, as well as Senator Bala Mohammed and Hon Aminu Tambuwal, the governors of Bauchi and Sokoto States, respectively. PDP, their party, has since replaced the names of the original winners of its Governorship primaries in the two states with the two. The original winners had withdrawn their candidature in accordance with Section 31 of the Electoral Act and paved the way for the states’ first-term governors to participate – and win – in the reconducted Governorship primaries of their states in accordance with Section 33 of the Act, following their failure at their parties’ Presidential primaries.

Both Falana and Vanguard have, in my view, read Section 115 (1) (d) of the Electoral Act, which deals with this issue, wrongly. The Section says a person who “signs a nomination paper or form AS A CANDIDATE in more than one constituency at the same election… commits an offence and is liable on conviction to a maximum term of imprisonment for two years.” (Emphasis mine). What this clearly means is that it is only AFTER one has become a candidate of a party in one constituency that it becomes illegal for him to sign the nomination paper or form for another constituency, whether in the same party or another, presumably because that would amount to hedging one’s bet which, in the circumstance, would seem morally wrong and improper.

Now, I may be wrong, but so far, no one has gone to court to challenge PDP in substituting the Bauchi and Sokoto governors for the candidates that withdrew after the Governors lost their party’s Presidential primaries and after the governors took part in the FRESH primary mandated by Section 33 of the Act. 

However, the APC candidate, Ekpoudom, who challenged his substitution by the party with Akpabio in a Federal High Court, lost. This matter, being a pre-election matter, may go all the way to the Supreme Court. Until then, however, it would be wrong to argue that it is illegal to aspire to more than one office, even after one has failed in another.   

Because Akpabio won and Lawan lost when their cases look similar, some pundits have been accusing the Federal High Court that ruled in favour Akpabio of arbitrariness. However, the similarity of the two is only at cursory glance. A closer look will show that the two cannot be more different. 

In Lawan’s case, APC did not have to contend with two factions in his state, whereas in Akpabio’s case the state party split into two in the run up to its Congress in October 2021, one led by Mr. Stephen Leo Ntukekpo, the other by Mr. Augustine Ekanem. In the litigation that ensued, a Federal High Court in Abuja in March this year ruled in favour Ntukekpo and the party Headquarters duly swore in his Executive Committee. It is this faction that Akpabio belongs to. 

Now, it is a notorious fact that there has been no love lost between Akpabio and Igini since the former lost his bid to return to the Senate in the 2019 General Election under Igini’s watch as the state’s REC. Perhaps for that reason Igini refused to have any dealings with the Ntukekpo faction even though INEC Headquarters’ correspondences have always been with that faction in obedience to the Federal High Court ruling in question. 

Predictably when the party conducted its primaries, the former REC chose not to monitor the ones under Ntukekpo in spite of the fact that the party’s Headquarters sent its Election Committee to conduct only the primaries organized by that faction. Instead, he chose to monitor Ekanem’s. 

Based on Section 84 (1) of the Electoral Act, the outcome of any party primary not monitored by INEC is null and void. However, this is only in so far as the party fails to give the Commission the requisite notice. Where it does so and INEC fails to honour the notice, it will be hard, if not impossible, to successfully argue that the outcome of its primary stands as invalid. This, apparently, explains why Lawan lost in the court against Machina but Akpabio won against Ekpoudom who emerged in a primary INEC apparently monitored but which was not conducted by APC’s National Executive Council. 

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.