By Francis Nworah
I usually like reading, not reading, learning, unlearning and at times skipping writeups, but with this contradiction in the open space at this crucial stage, there is a need for a line-by-line rejoinder from me, eventhough the writer, my friend from afar conceded in his writeup that, there is no harm or any violation of the extant law(s) by substituting a Running Mate, a style he (the writer) alongside many others decided to call “Placeholder” applicable in US system of government thus:
Writer: The novel concept of a “placeholder” that some presidential candidates are resorting to is unknown to the Nigerian Constitution and the Electoral Act. When a name is submitted to the INEC as vice presidential candidate, the name’s bearer automatically and legally becomes the vice presidential candidate of the political party simpliciter.
Rejoinder: On the above, it is wrong for the writer to hold the sweeping statement that, “When a name is submitted to the INEC as vice presidential candidate, the name’s bearer automatically and legally becomes the vice presidential candidate of the political party simpliciter”. This is because, there has never been a time on record that, by mere nomination of a candidate to Run (i.e as Running Mate) as a Vice-President alongside a Presidential candidate in the case of a Presidential election and or a Deputy Governor alongside a Governor in the case of a Governorship election automatically qualifies that person to be called a Vice President and or a Deputy Governor respectively in the opinion of the writer. This conclusion on its own by the writer is misconceived and erroneous as even the constitution (Ss. 144 (2) & 187 (2) of the CFRN) described them as ‘Associates’ and not Vice President and Deputy Governor without the candidate(Presidential/Governorship) winning and been declared validly returned by the relevant body (INEC). In conclusion here, it is important to note that, the constitution carefully gives the associates to a Presidential candidate the condition to be from the same political party as him/her while in the case of the Governorship candidate, being in the same political party as the Governor is silent.
Writer: However, Section 31 of the Electoral Act, 2022 allows for withdrawal of candidacy. Unlike the position under the repealed 2010 Electoral Act where political parties were allowed to change or substitute candidates based on “cogent and verifiable” reason(s), the Electoral Act, 2022 expressly prohibits substitution of candidates; subject to only two permissible exceptions.
Writer: By Section 33 of the said Act, a political party shall not be allowed to change or substitute its candidate except by reason of death or withdrawal by the candidate. Section 31 requires a candidate seeking to withdraw to do so in writing, and must deliver the withdrawal letter personally to the party.
Writer: Where a candidate has properly withdrawn in accordance with the law, the political party is required to inform the INEC within 14 days and also conduct fresh primary election to produce a fresh candidate and submit the name to INEC.
Rejoinder: On the above, S. 31 of the Electoral Act, 2022 and that of the repealed Electoral Act 2010 as alleged by the writer are not in any way the same let alone similar. The similar section of S 31 of the Electoral Act, 2022 to the repealed Electoral Act, 2010 is S. 35. The only notifiable differences in these Sections are in number of days of conveyance of withdrawal by the political from 45 from the repealed Act to now 90 in the new Act in the case of a validly nominated candidate by the party who participated fully in primaries. The new Act has as an addition to ‘him’ the words “her” and “personal delivery by the candidate to the political party” its intention to withdraw from participation in the election proper. Having noted these, it is erroneous for the writer to likened and conclude that a running mate of a ‘candidate to an election proper’ that, can under the repealed Act 2010 be changed and or substituted in the manner described in his writeup.
On S. 33 from the writer (Electoral Act 2022), the writer admitted that, there is an exception to substitution of candidate and tend to equate it with a “candidate” in the real sense as opposed to the burning issue that prompted the writer which has to do with the “possibility of changing or substituting an associate/running mate by the parties (LP & APC) submitted to INEC alongside their respective proper candidates (Presidential) inline with S. 29(1) after compliance with S. 84 (1 & 2) of the Electoral Act 2022 ”. In conclusion here, a “candidate” been referred to in Ss. 29(1-2), 29(1), 33, 35, 26 of the Electoral Act 2022 here is not the “associate” as misconceived by the writer to be held tenaciously to give the Labour Party (LP) and or the All Progressive Congress (APC) sleepless night should they wake up before the provided days to the election and decides to change the “associate/running mate”. This is because, the process of substitution/changing a proper candidate per say is by conducting primaries in the way and manner provided for by the Electoral Act while that can never be the case or contemplated in the case of the “associate/running mate” as decided by the supreme court in the case of WADA & ORS v BELLO & ORS (2016) LPELR-47015(SC). Although the writer later admitted these facts therefore, it is nothing and poses no harm or threat to the political parties in the case of changing/substituting the “associate(s)/running mates”. Where the associate/running mate decides to “personally” writes to it political party for the purpose of withdrawal and same is subsequently submitted to the relevant body (INEC) for approval of another name, that will be taken, as there is no strict provision on how a running mate can be substituted just as in the case of a proper candidate, as seen in various decisions including the case of NJOKU v JONATHAN & ORS (2015) LPELR-24496 (CA), where the court held that, former President Goodluck E Jonathan, cannot be properly called a candidate of election despite his enjoyment of a joint ticket as a Vice President before the death of late President Umaru Musa YarAdua for the purpose of contesting election. Meaning the sections relating to candidate does not apply to a running mate/associate.
MY REJOINDER ON THE Fate of Former Senator/Governors Bola Ahmed Tinibu and Peter Gregory Obi and other issues further captured by the writer including the authorities (Attorney General of the Federation V. Atiku Abubakar (2007) 10 NWLR (Pt. 1041) 1; Section 142 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); James Abiodun Faleke V. INEC & Anor (2016); Sections 31 and 33 of the Electoral Act, 2022) Cited by the writer are as follows:
Thre is no issue as the court has held severally that, matters regarding primaries of any political party are internal affairs of all parties which no one can question except he/her that participated in it and the Electoral Act 2022 in Ss. 29 (1) & (5), gives only the person that fully participated in its primaries to contest in Federal High Court the validity of any process for being wrong for the purpose of nullification and or disqualification. My question now is, assuming without encouraging and or suggesting that the political parties should on its own directly substitute/change the running mate/associate (for office of the Vice President) without the input of person to be changed/substituted, but the political party decided to after getting a suitable candidate substituted/changed an “associate/running mate” in this case the respected persons of Doyin Okupe and Kabiru Masari against their will and sent to the relevant body (INEC) within the stipulated time before the general election eventhough there is no specific time for such? What court can they challenge that from the Electoral Act? Is it in the Federal High Court because definitely not the Tribunal? If yes, what will be their locus having not fully participated in the party’s primaries, the nomenclature of the parties and under what grounds will they come to contest it in the Federal High Court? Can you see the choice of the various associate/running mates?
In addition, Labour Party (LP) or All Progressive Congress (APC)’s decisions and calculations to eventually substitute/change the said slots might not be within any existing law as it is, as admitted by the writer BUT it is not against the extant laws or cases without sentiment as misapplied by the writer with the citing of the Supreme Court case of Attorney General of the Federation V. Atiku Abubakar (2007) 10 NWLR (Pt. 1041) 1. This case as we all know talks about a substantive Vice President about to be removed and not an “associate” that is to be changed/substituted inline with the Electoral Act, therefore not applicable and or comparable with the issue at hand.
Contrary, the cited case of James Abiodun Faleke V. INEC & Anor (2016) by the writer is also erroneous as regards the definition of who a candidate is because, it did not define or see an associate/running mate as a Deputy Governor in the case of Governorship Election and it also did not recognise the Vice President as such before a valid election and return in the eyes of the law but as an associate/running mate simpliciter. As a matter of facts in the case of Faleke (Supra), the court reiterating the position of a running mate simpliciter held thus:
As rightly held by the lower courts, section 181 of the 1999 Constitution is unambiguous and clear that for the Deputy Governorship candidate to be entitled to the benefit under the section, he must have been duly elected and the return made thereof in respect of the Kogi State Governorship Election held on 21st November, 2015. There was no such return in this case because the election was declared as inconclusive.The appellant and the late Prince Audu were not duly elected. The appellant does not come within the benefit of section 181 of the Constitution as claimed………It is not in contention however that the appellant has remained Prince Audu’s Deputy Governorship candidate and continued right through and was inherited subsequently by the 2nd respondent as his running mate for his Governorship candidature.
Consequently, it is no doubt from the above emphasis of mine that, the court described Hon Faleke as “Prince Audu’s Deputy Governorship candidate and a running mate”, because even the Constitution does not empower a Running mate/Associate that did not culminate into a Vice President and or Deputy Governor upon election and return after full participation in primaries before election, then declaration as winner and returned based on highest votes casts pursuant to Sections 142 (1) & 187 (1) of the 1999 CFRN (as amended).
In conclusion, while applauding the writer for the great job well done, it is however not the true position that can give Labour Party (LP) and All Progressive Congress (APC) any sleepless night as regards subsequent change or substitution of the names of Doyin Okupe and Kabiru Masari respectively should they decides to. The major confusion I guess from the writer here started from the use interchangeably of the word “candidate” in the case of a fully qualified sponsored candidate properly by the political party that participated fully in primaries as opposed to ‘associate candidate/running mate’ either picked by the party or the “party’s sponsored candidate” that is to be fully recognized as either Vice President (VP) or Deputy Governor (DG) alongside the elected President or Governor after a declaration upon winning the highest votes cast and declared return. In the case of WADA & ORS V BELLO & ORS (2016) LPELR – 47015 (SC) the Supreme Court explaining emergence of a nominated/sponsored candidate from a running mate/associate held thus:
This is an issue of nomination which falls within the domestic sphere of the political party. See Rt. Hon. Prince Terhemen Tarzoor v Ortom Samuel Ioraer & Ors (2016) EJSC (Vol. 35) 37 at 62 paragraphs D – E Qualification to disqualification to contest election for the office of the Governor are as stipulated in Section 177 and 182 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) respectively. The sections are exhaustive and no addition to, or subtraction from, the lists in the two Sections (177 and 182) can be effectively made without amending the Constitution (supra). Nomination or non-nomination of any candidate to run as Deputy Governor pursuant to Section 187 (1) of the Constitution (supra) relates to nomination of the candidate and not to his qualification or disqualification to contest the elections…… For all intents and purpose, he remained the running mate to the 1st Respondent at all material times”
From above, it is now safe to conclude here against the writer’s position that, there is no violation whatsoever for any party including LP;APC;PDP;SDP;ANPP etc to change/substitute any submitted associate/running mate anytime the political parties wishes before the conclusion of a valid election to be in a safer side. I decided to use anytime because, there is no number of days that is required both in the Constitution and the Electoral Act to change/substitute a running mate/associate (Vice President/Deputy Governor) before the conclusion of Election Proper and a winner declared returned. The position has and it is still that, there is no special and separate existence of a running/associate that it substitution/change will pos a threat to a “candidate proper. See PDP & ANOR v INEC & ORS (1999) LPELR-24856 (SC). As a matter of fact, a running mate was substituted without any primaries after a valid election and a return validly declared and the Governor functioned for some months alone with the already submitted displeased name (Hon James A. Faleke) which was substituted/changed without any personal letter written by him to the party for onward submission to INEC, having held by the court that, his (Hon James A. Faleke) personal direct submission of letter of withdrawal from the race instead of through his party as associate/running mate was invalid yet no provision was said in the old and new Electoral Act to be violated. The case of WADA & ORS v BELLO & ORS (2016) LPELR-47015(SC) held thus:
I seek to emphasize further that issue pf sponsorship and nomination are matters which are completely within the internal consideration of a political party and it is not open to an outsider or even a party member who did not participate in the primaries to challenge same. It is a matter which comes within the domestic priority of the party and is within its sole discretion. Judicial authorities are numerous and well established that a Court is bereft of any jurisdiction to determine who a political party should sponsor as its candidate. See the decision of this Court in P.D.P. & Anor . v. Timpre Sylva (2012) All FWLR (Pt.637) 606, (2012) 13 NWLR (Pt. 1316) 85, (2012) LPELR-7814. Also in confirmation and fortification of the position is the case of Tarzoor v. Ioraer (2016) 3 NWLR (Pt. 1500) 463 at 498 to 499. The appellants’ contention and interpretation of Section 181(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as alleged is indeed extraneous to reason because their counsel anchored his argument on the concept of qualification as opposed to nomination. I seek to restate again that the scope of a ground of qualification and non-qualification is hemmed or circumscribed within the provisions of Sections 177 and 182(1) of the Constitution of the Federal Republic of Nigeria, (1999) as amended and it does not include whether a candidate has or is running the election without a running mate. In the absence of an evidence of proper withdrawal from being a Deputy Governorship candidate by Hon. James Abiodun Faleke vide Section 35 of the Electoral Act, his purported withdrawal is not in accordance with the law; it has no effect whatsoever and he remained extant at the time the supplementary election was held on 5 December 2015. In other words, he was formally in the race as the Deputy Governorship candidate. I have emphasized time without number in this judgment that the 1st respondent had a Deputy Governorship running mate at the time he was substituted by virtue of him having inherited everything Prince Audu Abubakar had left behind i.e. to say 240,867 votes scored and a running mate in the person of Hon James Abiodun Faleke, which had accrued to his political party (APC). He did not need to go beyond what was on ground.”
Nworah is a legal practitioner from Abuja