Pigeon-Holing The Ground Of Non-Qualification Of A Party Candidate In Pre And Post-Election Matters By Prince Ikechukwu Nwafuru

In election petition and pre-election litigation, it is common
to see lawyers and litigants go off on a tangent on the issue of
qualification of a person for election to various offices, by
introducing into their processes, internal party issues and
non-constitutional criteria. And this is notwithstanding the
express provisions of the Constitution on the qualification for
political positions.

It is either the Petitioner is alleging that the Respondent was
not properly nominated by his/her political party and as such is
not qualified to contest the election in the first place, or the
Respondent in his Reply to the Petition, is setting up a defence of
lack of locus standi of the Petitioner on the ground that the
nomination of the Petitioner is invalid. In both scenarios,
arguments have been made to the effect that it is wrong to raise
the issue of political party primaries at the Election Tribunal or
to challenge the qualification of a party candidate outside the
precinct of the Constitutional provisions. Pursuant to the
principle of internal party affairs, neither the Petitioner nor the
Respondent is in a position to challenge the outcome of the Primary
Election of the opposing Party at the Election Petition Tribunal
under whatever guise. Several reasons have been adduced to support
the arguments. First, the Petitioner and the Respondent are not
members of the same political party and as such, neither of them
has the locus to challenge the process that led to the nomination
of the opposing party. Even amongst members of the same political
parties, the Courts, as part of the judicial policy on
non-interference with domestic affairs of political parties, have
consistently endeavored to narrow the ground upon which party
primaries may be challenged in pre-election disputes, not to talk
of a non-member who is often considered as a stranger and a
meddlesome interloper in internal party affairs.  To drive
home this point, in the case of Frank Okon Daniel v. INEC & ORS
(2015) LPELR-24566(SC), the Supreme Court speaking through His
Lordship Rhodes-Vivour JSC posed the question thus: “Who can
question the conduct of primaries?”. The Law Lord went ahead to
answer the question as follows:

“Section 87(9) of the Electoral Act answer the question. It
reads: “87(9) Notwithstanding the provisions of this Act or rules
of a political party, an aspirant who complains that any of the
provisions of this Act and the guidelines of a Political Party has
not been complied with in the selection or nomination of a
candidate of a Political Party for election may apply to the
Federal High Court or the High Court of a State or FCT, for
redress. This court has interpreted the above section in recent
decisions. In Sylva & 2 Ors v. PDP (2012) 13 NWLR (Pt. 1316)
p.85 I said that: “….. Section 87(9) of the Electoral Act confers
jurisdiction on the court to hear complaints from a candidate who
participated at his party’s primaries and complains about the
conduct of the primaries….” In Lado v. CPC (2011) 18 NWLR (Pt.
1279) p.689 Onnoghen, JSC said that: “…… section 87 of the
Electoral Act, 2010, as amended deals with the procedure needed for
the nomination of candidate by a Political Party for any election
and specifically provided a remedy for an aggrieved aspirant who
participated at the party primaries which produced the winner by
the highest number of votes.” Also in Emenike v. PDP & 3 Ors.
(2012) 12 NWLR (Pt. 1315) p. 556, Fabiyi, JSC said: “…… that for a
complaint to come within the narrow compass of sections 87(4) (6)
and 87(9) of the Electoral Act and be cognizable by a court the
aspirant must show clearly and without any equivocation that the
National Executive Committee of the Political Party conducted a
primary election in which he was an aspirant and that the primary
election was conducted in breach of specified provisions of the
Electoral Act/Electoral Guidelines. Can the appellant benefit from
section 87(9) or did the appellant participate in the re-run of the
PDP held on 15/1/11. In his affidavit filed in support of his
amended originating summons the appellant deposed in paragraphs 26
and 30 as follows: “26. That in response, I informed Mr. Akpabio
Udo Ukpa that I was not aware and did not participate in the re-run
election. 30. That because of their refusal to inform me, I could
not attend the re-run neither did any of my supporters, as we
became aware after it had been done.” An admission, clearly and
unequivocally made is the best evidence against the person making
it. Paragraphs 26 and 30 are conclusive evidence that the appellant
did not participate in the re-run primaries conducted by PDP on
15th January, 2011. They are clear admissions by the appellant.
Since the appellant did not participate in the re-run primaries
there was no way he could complain about the conduct of the
primaries, and so had no locus standi to institute an action as
provided by section 87(9) of the Electoral Act. Put in another way,
before a candidate for the primaries can have the locus standi to
sue on the conduct of the primaries he must be screened, cleared by
his political party and participate at the said primaries. Anything
short of that the candidate who did not participate in the
primaries could conveniently be classified as a meddlesome
interloper with no real interest in the primaries. The Court of
Appeal to my mind was wrong. The appellant has no locus standi to
institute this suit because he did not participate in the re-run
primaries.”

The above excerpt summarizes the principle that only an aspirant
who participated in a party Primary can challenge the outcome of
the primaries. If a member of a political Party who did not
participate in the Primaries cannot challenge the outcome of same,
how much more a non-party member? This again, underscores the need
to compartmentalize the ground of non-qualification in election
petition litigation.

Second and as a corollary to the first point above, the election
petition Tribunal is not a proper venue to challenge the nomination
of a party candidate as it forms part of pre-election matters which
incidentally are now time-bound. Even where qualification of a
party candidate is to be challenged either in pre or post-election
dispute, a bit of circumspection and adroitness is required to
avoid veering off the Constitutional path. In my previous write-up
“Election Petition Litigation: Key Legal Issues to note”
(https://www.linkedin.com/pulse/election-petition-litigation-key-legal-issues-note-prince-nwafuru/^[1]), I had discussed the
nature of challenge to qualification that could support a ground of
election petition. However, in that op-ed I did not mention the
provision of section 138(1)(e) of the Electoral Act. Not that it
would have changed my conclusion in that write-up, but at least to
show that the new sub-section has not changed the position of the
law on the vexed issue of qualification of a party candidate. This
follow up is therefore, necessary to demonstrate that the ground of
non-qualification is often misunderstood and misapplied at the
election petition tribunals and in pre-election disputes as
well.

Sub-section (e) of Section 138(1) of the Electoral Act was
introduced following the 2015 amendment that was signed into law by
the former President, Goodluck Ebele Jonathan on 26 March 2015. The
sub-section provides that an election may be challenged on the
ground that person whose election is questioned had submitted to
the Commission affidavit containing false information of a
fundamental nature in aid of his qualification for the election.
Thus, in addition to the four traditional grounds upon which an
election may be challenged under section 138(1)(a)-(d) of the
Electoral Act, 2010 (as amended), this new sub-section seeks to
expand the ground on non-qualification by providing that an
election may also be question on the ground that respondent
submitted to INEC affidavit containing false information of a
fundamental nature in aid of his qualification for the election.
The flip side argument would mean that, the Respondent in an
election petition for instance, may rely on this subsection to
challenge the locus standi of the Petitioner to present the
Petition on the ground that the Petitioner submitted affidavit
containing false information to INEC. What this sub-section (e)
seeks to achieve is not yet clear considering that subsection (a)
of Section 138(1) of the Electoral Act, 2010 (as amended) already
provides that an election may be questioned on the ground that “a
person whose election is questioned was, at the time of the
election, not qualified to contest the election.”  Does
section 138(1)(e) of the Electoral Act, give a litigant at the
Election Petition Tribunal a carte blanche to introduce all sorts
of grounds under the pretext of challenging the qualification of a
party candidate? I do not think so. Again, it is not clear what
constitutes “false information of a fundamental nature in aid of
his qualification” as provided in the sub-section. The Courts in
many decided cases have already said that reference should be made
to the Constitution only, in determining the issue of qualification
of a person to elective position. Hence, the constant allegations
of forgery of age declaration certificate, tax clearance documents
or academic qualification in a bid to challenge the qualification
of the party candidate thereto need to be examined vis-à-vis the
constitutional provisions on qualification for elective offices.
Whether such issues would fall within the qualification criteria
set out in the Constitution would depend on the facts of each case.
For instance in the case of academic qualification, the
Constitution has set the minimum academic requirement to be that
the person must have been been educated up to at least School
Certificate level or its equivalent. The same Constitution defines
“School Certificate or its equivalent” to mean (a)
a Secondary School Certificate or its equivalent, or Grade II
Teacher’s Certificate, the City and Guilds Certificate; or (b)
education up to Secondary School Certificate level; or (c) Primary
Six School Leaving Certificate or its equivalent and – (i) service
in the public or private sector in the Federation in any capacity
acceptable to the Independent National Electoral Commission for a
minimum of ten years, and (ii) attendance at courses and training
in such institutions as may be acceptable to the Independent
National Electoral Commission for periods totaling up to a minimum
of one year, and (iii) the ability to read, write, understand and
communicate in the English language to the satisfaction of the
Independent National Electoral Commission, and (d) any other
qualification acceptable by the Independent National Electoral
Commission;

In PDP v. OGAH & Ors (2016)
LPELR-40850(CA), the 1^st Respondent Dr. Sampson
Uchechukwu Ogah sought the disqualification of Dr Okezie Ikpeazu,
the current Governor of Abia State on the ground that the Governor
was not qualified to be the Candidate of the Appellant (PDP) in the
Governorship Election relying on and alleging that the
Form CF001 as sworn to by Dr Ikpeazu in the affidavit
accompanying other documents submitted to Independent National
Electoral Commission by him pursuant to Section 31 (2) of Electoral
Act was false. The Court of Appeal in setting aside the decision of
the Federal High Court disqualifying Dr Ikpeazu, reiterated the
principle to the effect that based on the doctrine of “covering the
field” as enunciated in AG. Abia v. AG. Federation (2001) 6 NWLR
Pt. 763 at Pg. 264 at 391 – 392 also in Abia v. AG. Federation
supra, by the Supreme Court, the National Assembly CANNOT make laws
with respect to the qualifications and non-qualifications of
candidates for election into political office.

What is clear from the foregoing decision is that the issue of
qualification of a candidate to stand for an election can only be
decided by making reference to the Constitution. Section 138(1)(a)
and (e) of the Electoral Act, 2010 (as amended) is therefore not a
blank cheque to introduce internal party affairs or any
qualification issue not anchored on the provisions of the
Constitution in pre or post-election disputes. Putting it
differently, in challenging the qualification of party candidate at
the Election Petition Tribunal or regular Courts, it is important
that the ground of the petition or objection is premised on those
qualifications provided under the Constitution. The Constitution
has made copious provisions for the qualification of persons vying
for various elective positions such as President, Governor,
Senator, Member of House of Representative or Member of a State
House of Assembly. For instance, the Constitution provides that “A
person shall be qualified for election to the office of the
President if –(a) he is a citizen of Nigeria by birth; (b) he has
attained the age of forty years; (c) he is a member of a political
party and is sponsored by that political party; and (d)he has been
educated up to at least School Certificate level or its
equivalent.

Any other provision of the Electoral Act or any other law
setting different qualifications for candidate in respect of any
elective post in Nigeria is subservient to the above Constitutional
provision and cannot be countenanced. Putting it differently, any
requirements provided by INEC or any other body stipulating the
qualification to contest an elective position in Nigeria must be
within the narrow margin of “all constitutional requirements for
election to that office.” In effect, any extraneous requirements
that are squarely outside the requirements of the Constitution on
qualification of a person to an office cannot ground a reason for
disqualification either in election petition litigation or
pre-election matters.