Who is qualified to be a delegate in indirect primary?

As expected, many of the leading parties have decided that they would use the indirect mode of primary for the election of their presidential candidates. This seems to be the default mode for both the PDP and the APC. The APC has tried the direct mode of a primary election with disastrous consequences. In its 2018 presidential primary, President Buhari was elected with tens of millions of votes of members. But at the presidential election, less than a year, he could not poll up to half of those tens of millions of votes. We saw the same result in Anambra state in the 2021 gubernatorial primaries and election. Clearly, the mechanics of direct primary as outlined in the electoral act is such that a poorly organized political party cannot manage it at this point in the evolution of electoral democracy without quick improvement in its administrative efficiency. Hence, they resort to indirect primary.

The problem is that the indirect mode of primary is not as easy or routine as the managers of these parties may presume. The tradition in the PDP and the APC has been to define delegates for an indirect primary as officials and other former political leaders of the party. This would include members of the national working committee (NWC), state working committees (SWCs), local government party chairman and woman leaders, the president, the vice president, senate president, deputy senate president, speaker and deputy speaker of state assemblies and the likes. This restricted definition suited the previous legal regime of elections. But the new electoral law has changed the game. But the problem is that the leadership of the parties are playing by the old rule.

The new electoral law is focused on regulating democracy. It builds from the experiences of the past where political leaders converted party primaries into a drama of self-serving politics. They harrowed out democratic accountability in the manner their parties chose their candidates for elective offices. They found support and sanctuary in the supreme court’s reluctance to reverse the decision of party leadership on the choice of their candidates. The supreme court argues rightly that it is the party, not the court that determines the choice of candidates. And when the party leadership has made that choice, the court should not reverse it. The caveat in these decisions is that the party leadership followed the electoral law and the party’s constitution in choosing the candidates.

The new electoral law has changed the game by spelling out clearly how the parties should conduct primaries. At the heart of this legal change is the requirement that candidates of the parties for elective offices should be democratically elected. This phrase could prove the undoing of the political parties that have easily resorted to indirect primary for the election of their presidential candidates for the 2023 elections. Section 84 (4) provides that when a party chooses direct primary to elect its candidates for elective offices, it must ensure that all registered party members vote for the candidates at the wards. It is the widest articulation of ‘democratically elected’. Such a candidate who emerges from the votes of all registered party members at the wards across the country is democratically elected. For a party that chooses to use indirect primary to elect its candidates, Section 84(5) requires such a party to choose as its presidential candidate the aspirant who receives the highest number of votes of the delegates at a national convention of the party.

The crux of the matter is how to determine who becomes a delegate to the indirect primary. The electoral act makes an express provision on who becomes a delegate to an indirect primary. Section 84(8) of the act expressly provides that: “A party that adopts the system of indirect primary for the choice of its candidate shall clearly outline in its constitution and rule the procedure for the democratic election of delegates to vote at the convention, congress or meeting”. The important phrase is ‘democratic election’. The only valid interpretation of this section is that only delegates elected democratically can vote for a presidential aspirant to become its candidate in a convention or primary. This means that the party is required to make rules that show how the delegates emerge from a democratic election. This knocks off the so-called statutory delegates except as they are specially elected democratically for the purpose of electing a presidential candidate. Clearly, the provision invalidates such so-called ‘delegates’ that are former political office holders including former Presidents, former Governors, etc.

This reading of Section 84 is radical, but it is properly read in the context of the challenges of party democracy in Nigeria and the history of the use of the leadership power in the party to undermine the democratic rights of party members. Whereas democracy is premised on the political equality of citizens, the asymmetry of power within the party threatens the survival of democracy in Nigeria. Godfathers and moneybags have taken over the parties and routinely use the main parties to foist on citizens a fait accompli that destroys even the pretence of democracy. Without democracy in the internal management of party affairs, the idea of democracy as the basic right of the people to effectively participate in choosing those to be entrusted with the political power of the state to make decisions on the use of public resources will be nugatory.

The legislative history of the electoral act 2022 shows that it was enacted to end the perverse situation where the process of electing candidates for elective offices was underspecified and left largely to the discretion of party leaders. The legislative history further shows a determination to regulate Nigeria’s political process to institutionalize the norms of democracy in obligations that are judicially reviewable. This determination shows in the many innovative provisions to replace the opaque and judicially unmanaged provisions in the past versions of the electoral law. The new electoral law gives the election management body more powers to override decisions of party officials that violate tenets of electoral democracy. It also obligates the party to conform to the fundamentals of electoral democracy, especially the protection of the right of choice of party members.

This legislative perspective is also aligned with the development of electoral law and democratic theory across the world. Political parties are central pieces of the architecture of democracy. Scholars have noted that although US constitutional democracy originated without political parties, parties have become the definitive features of representative democracy in the US. This central place of political parties in the US has elicited criticism from some who are worried about the growing divisiveness fostered by the partisan spirit and the gridlock it occasions in the legislature. But, notwithstanding this untoward outcome, the democratic theory is built on the vitality of political parties. As the US Supreme Court put it in California Democratic Party v. Jones: “Representative democracy in any populous unit of governance is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views”. Robert Dahl, the most famous political scientist of this century also argues that without political parties it would be difficult to protect the right of choice. As political scientist E.E Schattschneider said, “The parties created democracy, or perhaps more accurately, modern democracy is a by-product of party competition”.

The drafters of the new electoral law recognize the importance of party to democracy in Nigeria, and, for the first time, opens the management of parties, especially the nomination of candidates for elective offices, to regulatory control and consequently, more robust judicial review. Unlike in the past, the leaders of the parties are constrained to ensure effective participation of registered members of the parties in the choice of who stands for election on the party’s platform. Whether you adopt a direct or indirect model of primary, the new law expects that the registered members of the party have the opportunity to decide who stands for election on their behalf. It is the right of all members of the party, not the party leaders, to determine who becomes candidates for elective positions.

This improvement in the democratic quality of the primaries aligns with the constitutional statement in Section 221 that only political parties can campaign for votes. If only parties can present candidates for election and campaign for votes, then it is imperative that the choice of such candidates for election be as democratic as possible. Therefore, if the party chooses an indirect primary to elect its candidates, then the electing delegates themselves must be democratically elected.