In this piece, LEKE BAIYEWU examines the cost and other implications for the Independent National Electoral Commission (INEC) when political parties and politicians engage in endless court battles and compromise primaries and major elections
The long-awaited 2023 general elections are some days away, with the political parties – 18 of them, their candidates, the electorate and the Independent National Electoral Commission working towards playing their respective roles at the polls.
One of the unique features of a democracy is election – the ability of the people to, via ballot, elect their leaders. Before then, the parties are responsible for the election or selection of candidates among those aspiring for the various elective public offices.
While the congresses produce the leadership of the political parties at the ward, local government area, state and national levels, the primaries produce the candidates for elections. This is why the parties play a dominant role in pre-election processes. These are the candidates that the parties will sell to voters ahead of the elections. Political analysts have, however, pointed out that the failure of the parties to follow due process in the pre-election exercise called primaries may frustrate the efforts of other stakeholders in the chain, especially INEC.
The intra-party disputes especially over candidacy is widely believed to have led to the additional burden on INEC and dashed hopes of many voters.
Many Nigerians were shocked when the Supreme Court ruled recently that the Yobe North Senatorial District ticket should be given to Senate President Ahmad Lawan and not Bashir Machina, who had won at the two lower courts.
While Lawan had applied and contested the presidential ticket of the All Progressives Congress without participating in the first senatorial primary, Machina had won the ticket for the district.
After losing out of the presidential bid, Lawan went for the senatorial ticket. The national leadership of the APC had actually substituted Machina’s name with Lawan’s when submitting the list of its candidates for the 2023 general elections.
Understandably, Machina challenged the alleged theft of his mandate at the Federal High Court sitting in Damaturu and he was declared the authentic candidate by the trial court, a decision that was affirmed by the Court of Appeal, Gombe Division. However, at the Supreme Court, there was a division among the five-man panel of Justices: three for Lawan and two for Machina, with the majority taking the ticket from Machina to Lawan in a judgment several lawyers have said was based on technicalities and not substance of the case.
This is a major pre-election case and close watchers of the political space have predicted more decisions by the courts in the over 700 litigation initiated by political parties, candidates and aspirants. There are fears that some of these cases might linger till after the general elections.
The National Chairman of INEC, Prof Mahmood Yakubu, on July 2, 2022, at a meeting of the Inter-Agency Consultative Committee on Election Security in Abuja, decried the huge burden that pre-election litigation places on the electoral umpire.
Yakubu had said in part, “Nigerian election, especially the conduct of primaries for the nomination of candidates by political parties, is one of the most litigated in the world. As at yesterday evening (Friday, July 1, 2022), 216 requests have so far been processed involving the certification of over 1,650,000 pages of documents.
“Indeed, there are now far more cases challenging the breach of internal democracy within political parties than those involving the conduct of the main elections by INEC. We will continue to work round the clock, including the weekends, to ensure that we attend to all applications received at the headquarters of the commission promptly.”
Later in the month, Yakubu said as of July 21, there were 334 post-primary cases in various courts across the country. He made this known at the swearing-in of Dr Hale Longpet as a Resident Electoral Commissioner, who was later deployed in Kogi State.
The INEC chairman said, “I appeal to all Nigerians (citizens and aspirants) to seize the opportunity to scrutinise the particulars of the candidates and to seek judicial remedy for any observed violation of the law as provided in Section 29 of the Electoral Act, 2022.
“Already, the commission has been inundated with numerous pre-election cases arising from the conduct of congresses and primaries by political parties for the 2023 general election. So far, 334 pre-election cases have been filed in various divisions of the Federal High Court across the country by aspirants challenging the nomination of candidates or their exclusion from the list submitted to the commission.”
In the first week of November, 2022, Yakubu appeared before the House of Representatives Committee on Electoral Matters to defend the budget proposed by INEC in the 2023 Appropriation Bill where he decried the burden of litigation on the electoral body, noting that the commission provided for court cases in its regular budget for 2023 and under its Election Project Plan budget.
Yakubu noted that though the number of registered parties had reduced to 18, INEC observed that more people were contesting elections. He said the electoral umpire had published the list of candidates for the forthcoming elections, but that the courts were more likely to order changes on the list.
He stated, “There will obviously be changes as a result of litigation, where the courts say the names we published were not the rightful candidates. We would now have to publish the names of the rightful candidates by court order. We have made provision for litigation and these are really draining because they are simply enormous.
“When the Director of Prosecution and Litigation told me that in just one day, we received over 40 processes filed in court from one political party. We have to mobilise our lawyers and external lawyers to represent us. So far, we have been served over 500 court processes arising from the conduct of primaries by political parties alone.”
He pointed out that there was more litigation over the conduct of primaries by political parties than from the main elections it conducts.
He added, “There is less litigation challenging the conduct of elections by INEC, which is very good for us, but more challenges from the conduct of primaries by political parties. Over 500 – I am sure – of court cases so far. And they keep increasing every day, and they go all the way to the Supreme Court.
“Then, there are so many other provisions of the law that can now be litigated in the new Electoral Act. So, we have to make provisions as well. There are some activities that INEC must undertake by law. If we don’t do it, someone goes to court. What they demand for, right from the beginning, is to cancel the process. This is really a big challenge.”
By November 19, 2022, the number of litigation had risen to over 600, according to Yakubu, who described the situation as one of the factors that could frustrate the smooth conduct of the 2023 polls.
Speaking at the inauguration of the Electoral Logistics Committee in Abuja, he said INEC had studied the judgments of tribunals arising from both the 2019 general elections, the off-cycle governorship elections and the by-elections conducted and had identified “areas where we need to do more to reduce litigation.”
He added that though the electoral umpire was “witnessing increasingly less court cases challenging the conduct of elections by the commission, cases arising from the conduct of primaries for the nomination of candidates by political parties are on the increase.”
Yakubu said, “So far, we have been joined in about 600 cases relating to the conduct of recent primaries and nomination of candidates by political parties for the 2023 general elections. One political party served about 70 court processes on the commission in one day, seeking to compel us to accept the nomination or substitution of its candidates, long after the deadline provided in the timetable and schedule of activities for the 2023 general elections had elapsed.
Some of the cases will go up to the Supreme Court. The implication is that we are still dealing with issues of nomination of candidates, thereby eating into vital time for preparation of and procurement of sensitive materials. It also means that the courts will be dealing with the same issues long after the general elections.”
By January 6, 2023, INEC had been joined in 791 lawsuits filed by parties and candidates bothering on primaries and selection of candidates.
Yakubu, in his address at the Chatham House on January 17, 2023, partly said, “In the 2019 general election, the commission was involved in 1,689 cases, made up of 852 pre-election, 807 post-election and 30 electoral offences cases.
“These are not cases involving elections conducted by the commission or litigation initiated by it, but purely intra-party matters involving candidates and their political parties mainly due to the absence of internal democracy within parties. In fact, the commission is only a nominal party in these cases but, nevertheless, has to be represented by lawyers in all court proceedings.”
While some Nigerians have called for the photos of candidates on ballots, others have noted that the cases in courts would not make it possible for INEC to have a permanent list of candidates for elections, as the courts keep determining the authentic candidates.
According to the Executive Director, Civil Society Legislative and Advocacy Centre, Auwal Musa, INEC does not have the resources to conduct additional elections and prosecute the cases in court. He blamed the events in the parties on what he called “political corruption.”
The human rights activist said, “It is very sad that politicians don’t play by the rules and their disobedience to the dictates of the 1999 Constitution, Electoral Act, party constitution and electoral guidelines often create room for litigation.
“It is very clear that some of the judgments that we have seen are as a result of poor handling of the matters by the parties, sometimes because of the political interests to control and manipulate the processes.”
Musa criticised the senatorial candidature of Lawan and a former Governor of Akwa Ibom State and ex-Minister of Niger Delta Affairs, Senator Godswill Akpabio, who were both presidential aspirants in the APC and didn’t participate in the initial senatorial primary in their respective states.
He decried the way top politicians were snatching people’s mandate through the judiciary. He noted that the Electoral Act, 2022 prescribes that one cannot contest the result of a primary or an election if one did not participate in the exercise. “But in the case of Lawan and Akpabio, we have seen the magic that the Supreme Court has done, also the political party,” he added.
The CISLAC boss noted that the development had a huge implication on INEC as the electoral umpire “does not have that much resources” to be conducting rerun. “It will be overwhelming even if they have the resources,” he added. According to him, if politicians continue to behave with impunity, it will lead to an increasing number of cases in court rather than allowing the people to decide who they want to represent them.
Analysing the issues, Prof Dauda Saleh of the Department of Political Science and International Relations at the University of Abuja, blamed both the politicians and the judiciary.
Saleh stated, “The party members, the machinery and the judiciary sometimes seem not to be helping matters. From a layman’s perspective, this man (Lawan) did not participate in the primaries but at the end of it all, the Supreme Court in a split judgment of two-to-three gave him the ticket.
“They may have their reasons as to why they did that, but from a layman’s perspective, it is not healthy for our democratic consolidation. Sometimes, one gets the impression that the laws are tampered with to accommodate certain interest groups. That is my understanding of it.”
Saleh said though the Electoral Act, 2022 had been able to address some of the issues that often led to pre-election litigation, decisions by the courts “have a way of impacting on our democratic consolidation.” He added, “I wish things could have been done properly rather than what we are seeing now. It is not healthy for our democracy.”
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