By Dr. Muiz Banire
In the last few days, owing to the ongoing primaries of the various political parties, particularly the ruling party, the All Progressives Congress (APC), and the defeat of a sizeable number of incumbent members of the National Assembly, public interest has suddenly intensified regarding the fate of these political casualties. The anxiety stems largely from the perceived implications of the new Electoral Act and the suggestion that defeated aspirants may no longer have the opportunity to seek alternative political platforms to pursue their ambitions after losing their party primaries. This subject became particularly compelling to me after reading the intervention of a colleague, First Baba Isa, who rhetorically posed the question thus: Can an aspirant decamp to another political party and become a candidate after losing a consensus process or primary in another party?
In treating the issue, he undertook an extensive analysis of the import of the provisions of Section 77 of the Electoral Act. To the writer, upon a cursory digest of the provisions of that section, it would appear that a candidate who has lost a contest in the primary election of a political party cannot subsequently migrate to another political party to secure its ticket. However, upon deeper reflection and thoughtful analysis of the provisions, particularly subsections (5), (6), and (7) of the said Section 77 of the Act, he came to the conclusion that the story might not be entirely as straightforward as commonly assumed. In his view, the significance of the repeated use of the word “primary” in the relevant provisions becomes central to the interpretation.
The premise of his assertion is that while the Independent National Electoral Commission (INEC) requires the submission of the membership register to be used for party primaries twenty-one days prior to the conduct of such primary, convention, or congress, the concept of consensus is conspicuously not alluded to within the framework of Section 77 of the Electoral Act. Let me state unequivocally that I share the thoughts of the writer in this regard and further solidify the position as opined hereafter. In other words, the use of the membership register appears to be expressly restricted to the conduct of party primaries alone. In addition to his discourse, I have read quite a few other views aligning with, and in some instances dissenting from, that thought. It is in this connection that I have equally chosen to join the debate and express my preference in the circumstances. By way of further enlightenment, the implication of the provision of Section 77 of the Electoral Act is that a party member can only vote or be voted for in a party primary if his or her name appears in the membership register earlier submitted to the Commission.
The practical consequence of this position is profound. Since, by the same Electoral Act, an individual cannot validly belong to two or more political parties simultaneously, once an aspirant loses in one political party, such a person ordinarily cannot simply move to another party to participate in that party’s primary election because his or her name would naturally not appear in the membership register already submitted by the new political party to INEC for primaries. Indeed, to underscore the mandatory nature of the provision, the law further stipulates that any political party that fails to submit its register before the conduct of its primaries would be incapable of fielding a candidate for the election. It would therefore seem that the mischief which the legislature intended to cure was the growing culture of premature cross-carpeting during the nomination process.
In essence, the lawmakers sought to prevent the scenario where an aspirant loses in one political party today and immediately defects to another political party tomorrow in search of a ticket. The logic appears watertight at first glance. After all, no other register can be used apart from the one already submitted to the Commission.
By this mechanism, the draftsman of the law must have believed that the field had been comprehensively covered and that the objective of preventing post-primary defections had been successfully achieved. However, upon further and deeper interrogation, it would appear that this supposed blanket prohibition may not have been fully accomplished after all. As earlier observed, all the relevant provisions appear to focus almost exclusively on the use of the membership register in relation to party primaries and nothing beyond that. It is important to note that by virtue of Section 84(2) of the Electoral Act, a political party may nominate its candidates either through direct primaries or through a consensus arrangement.
The implication and inference therefore drawable from Section 77 of the Electoral Act is that the utilisation of the membership register is only mandatory for the conduct of party primaries. The inevitable implication of this interpretation is that a political party may not necessarily require the use of its membership register in the nomination of candidates through consensus. The age-long principle of statutory interpretation immediately comes into play here: expressio unius est exclusio alterius, the express mention of one thing implies the exclusion of another. Having repeatedly mentioned “party primaries” in relation to the mandatory use of the membership register, the legislature may reasonably be taken to have deliberately excluded the consensus option from the ambit of the provision. Interestingly, under Section 87 of the Electoral Act, where the mode of consensus candidacy is comprehensively provided for, there is no mention whatsoever of the use of a membership register. This omission further reinforces the position that the mandatory deployment of party registers does not apply to consensus arrangements. By extension, this interpretation opens an entirely different legal window. It suggests that a candidate who loses in the primary election of one political party may still be validly adopted by another political party through the mechanism of consensus, since consensus does not require the use of the membership register for voting or qualification purposes. The name of such a candidate would not necessarily need to appear in the party register for him or her to emerge through consensus because there is technically no voting process requiring verification through the register. To worsen the situation, the law itself does not forbid continuous party registration.
Thus, an aspirant may resign membership of one political party and subsequently register with another political party. The practical effect of this loophole is that defeated aspirants may still find political refuge in alternative parties, provided the nomination process adopted by such parties is consensus and not a formal primary election. Of particular interest to me within this discourse is the critical issue of locus standi and the question of who is even legally positioned to challenge the candidature of such a candidate. Under the prevailing provisions of the Electoral Act today, only an aspirant of the same political party possesses the legal standing to institute an action challenging the qualification or nomination process of another candidate within the party. In situations involving consensus arrangements, such legal challenges are unlikely to arise because there may be no competing aspirant willing or able to challenge the nomination, since all must have signed written consent yielding the slot to the candidate. This naturally creates a degree of insulation around such candidatures.
Where there is no rival contestant within the adopting political party, the possibility of successful litigation becomes substantially reduced. The safe haven, therefore, for defeated aspirants may lie precisely within this legal and procedural gap. Equally significant is the import of Section 29 of the Electoral Act concerning the timeframe within which political parties are expected to submit the names of their candidates to INEC. By the express provisions of the section, political parties have up till one hundred and twenty days before the conduct of the election to submit their list of candidates to the Commission. The implication of this provision is quite revealing. It means that political parties are legally entitled to conduct their nomination processes at any time before the expiration of the statutory period prescribed by the Act.
Consequently, INEC may not possess the legal authority to compel political parties to conduct their primaries or nomination processes much earlier than the period contemplated by the statute if such parties are unwilling to do so. In that regard, any purported guideline or regulation issued by INEC seeking to abridge or alter the timeline expressly granted by the Electoral Act may well be ultra vires the powers of the Commission. Political parties, in such circumstances, would be within their legal rights either to ignore such directives or to challenge them in court. It is elementary law that where there exists a conflict between the provisions of a statute and a subsidiary legislation such as regulations or guidelines, it is the principal legislation that must prevail. Applying this principle to the scenario under discourse, it follows that political parties may lawfully refuse to conduct their nomination processes within the earlier timelines prescribed administratively by INEC and may equally delay the submission of their candidates’ names until the maturity of the period expressly stipulated by the Electoral Act itself.
The practical implication of this legal position is that aspirants who lose party primaries may still secure nominations in alternative political parties through consensus arrangements before the expiration of the one hundred and twenty-day deadline preceding the election. This, perhaps, is the strategic legal window already left open for both aggrieved political parties and defeated aspirants to explore. As earlier noted, there is also a considerable degree of insulation surrounding such nominations because only aspirants within the same political party are generally competent to challenge them. In many instances, there may simply be no willing challenger within the adopting political party, especially where the adoption was achieved through consensus.
The entire development once again exposes the fascinating complexities, ambiguities, and unintended consequences that often accompany legislative drafting in Nigeria. It also reminds us that in politics, as in law, the apparent closure of one door often leads to the opening of another. The Electoral Act may have attempted to discourage opportunistic defections after party primaries, but whether it has successfully sealed every legal loophole remains a question far from being conclusively settled. As the political season unfolds and more aggrieved aspirants seek survival pathways, it is only a matter of time before the courts are invited to pronounce authoritatively on these emerging interpretative controversies.
Until then, the debate remains alive, vibrant, and deeply consequential to the future of Nigeria’s electoral jurisprudence and internal party democracy.
