The important of this subject is far-reaching and grave because we may inadvertently be permitting some persons or group of persons to govern or take control of the Government of Nigeria or any part thereof outside the democratic provisions of the 1999 Constitution. Section 1(2) of the 1999 Constitution expressly forbids the taking over of the government or any part of it by unconstitutional means and it is every citizen’s duty to ensure that does not happen. The subject is a hard proposition given the long and unchallenged history of how nomination of “running mate” is done in this country.
To be honest, the recent hullabaloo about the validity or otherwise of the recent invention in our political lexicon “place holders” by some political parties with respect to the Presidential candidate’s “running mate” who is to occupy the office of the Vice President when he wins and the widely report statement of Senator Ahmed Bola Tinubu, the APC Presidential candidate, that he is still looking for his “running mate” portends an unprepared political class just hungry to grab power and this got me thinking and rifling through several statute books. I am trained to present the evidence sufficient to sway the doubter, down-right-hostile and the undecided and this is what I have attempted to do not with regard to “placeholders” but what is the position of the law with regards to the entire nomination process. I am sure the drafters of our constitution left us a pathway from this embarrassing episode.
It is my contention from the combined provisions and construction of sections 131(c) and 142(1)(2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and sections 29(1), 32(1), 84(1)(2)(3), 152 of the Electoral Act 2022 that the office of the Vice President is subject to the same mandatory qualification for the office of the President and both offices for election purposes are fused and the candidates run a joint ticket and they must as a matter of law be sponsored jointly and nominated together through the presidential primaries of their party for their nomination to be valid. The 1999 constitution and the Electoral Act does not contemplate any candidate contesting an election and occupying an elective office without being validly nominated. The submission and acceptance of a list of candidates for an election to the office of the President of Nigeria and Vice President of Nigeria by the Independent National Electoral Commission (“INEC”) from the All-Progressive Congress (“APC”), Peoples Democratic Party (“PDP”) and Labour Party (“LP”) and indeed any party fielding a presidential candidate without their candidates jointly participating in their respective presidential primary election is unconstitutional. The arguments below advance this position with relevant authorities in support.
Section 140 of the 1999 Constitution of the Federal Republic of Nigeria (“the 1999 Constitution”) creates the office of the Vice President of Nigeria and by section 142(2) of the 1999 Constitution the provisions relating to the qualification for election of a candidate to the office of the President is made wholesale applicable to the candidate for the office of the Vice President.
Section 142(2) of the 1999 Constitution states the provisions of this Part of this Chapter [Chapter VI Part I] relating to qualification for election, tenure of office, disqualification, declaration of assets and liabilities and oaths of President shall apply in relation to the office of Vice-President as if references to President were references to Vice-President.
The qualification for the office of the Vice President of Nigeria is the same as the qualification for an election to the office of the President of Nigeria provided under section 131 of the 1999 Constitution which 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.
The criteria for qualification under section 131(a), (b) and (d) are clear and unambiguous and are not contended, however, the criteria under section 131(d) especially the later part “… sponsored by that political party” has been a subject of contention and was settled by the Supreme Court in JEGEDE & ANOR v. INEC & ORS (2021) LPELR-55481(SC) where it considered what constitutes act of sponsorship of a candidate for an election by a political party and who takes the decision to sponsor. It held that:
The decision to sponsor a person as the candidate of a political party for a general election is taken by the relevant congress or convention of the political party at a primary election of the political party held to nominate or select its candidate for the election. EMMANUEL AKOMAYE AGIM, JSC (Pp 28 – 29 Paras A – A)
In addition to the qualification for election into the office the President of Nigeria under section 131, the 1999 Constitution subjects the candidate for an election into the office of the President of Nigeria to the proviso under section 142(1) which provides;
(1) In any election to which the foregoing provisions of this Part of this Chapter relate, a candidate for an election to the office of President shall not be deemed to be validly nominated unless he nominates another candidate as his associate from the same political party for his running for the office of President, who is to occupy the office of Vice-President and that candidate shall be deemed to have been duly elected to the office of Vice-President if the candidate for an election to the office of President who nominated him as such associate is duly elected as President in accordance with the provisions aforesaid.
Section 142(1) deal with two separate matters; pre-election and post-election matters which in our respectful view was combined inelegantly into one section. I am focused on the first part of that section and I will attempt to separate them for clarity. The first part of section 142(1) deals with a pre-election matter, the validity of the nomination of the candidate for election to the office of the President and understanding it is relevant to the resolution of my submissions. The first part states
In any election to which the foregoing provisions of this Part of this Chapter relate, a candidate for an election to the office of President shall not be deemed to be validly nominated unless he nominates another candidate as his associate from the same political party for his running for the office of President, who is to occupy the office of Vice-President and vice-a-vice.
It is submitted that this first part deals with the criteria for the validity of the result of the nomination/primary election of a candidate for an election to the office of the President of Nigeria. It is submitted from the ordinary meaning of this provision that the nomination of a candidate for an election to the office of the President of Nigeria is invalid if he did not nominate another candidate as his associate from the same political party for his running for the office of President, who is to occupy the office of Vice-President.
What is the implication of section 131(c) on the nomination of an associate for the office of the Vice President by the candidate for an election to the office of the President?
The prerogative to nominate an associate for the office of the Vice President is that of the candidate for an election to the office of the President and not that of the political party, however, such candidate like the candidate for an election to the office of the President must be a member of a political party and must be sponsored by that political party in line with sections 142(2) which makes section 131(c) applicable. The Supreme Court in JEGEDE & ANOR v. INEC & ORS (supra) makes it clear that the decision to sponsor a person as the candidate of a political party for a general election is taken at a primary election of the political party held to nominate or select its candidate for the election. This position is reinforced by section 84(1)(2) of the Electoral Act 2022 which requires all candidates to an elective position must participate or emerge from a primary election or chosen by consensus. It must be stated that the office of the Vice President of Nigeria is an elective position jointly elected with the President of Nigeria.
The definition of a “political party” under section 229 of the 1999 Constitution is instructive in that it underscores the fact that the office of the Vice President is an elective position requiring a political party to canvass for vote in support of a candidate for election in to that office howbeit jointly with that of the candidate for election to the office of the President and it also underscores the centrality of sponsorship of candidates to contest elections.
Section 299 of the 1999 Constitution states that:“political party” includes any association whose activities include canvassing for votes in support of a candidate for election to the office of President, Vice-President, Governor, Deputy Governor or membership of a legislative house or of a local government council.,
From this constitutional provision, it is clearly the intention of the framers of the constitution that the office of the Vice President be seen as an elective position for which political parties are to canvass for votes in an election.
A community reading of section 142(1)(2), 131(c) of the 1999 Constitution and section 84(1)(2) of the Electoral Act 2022 leads to the irresistible conclusion that the associate nominated for the office of the Vice President must be sponsored by political party that is, he must satisfy the same condition for an election to the office of the President; he must participate in the party’s primary election contemporaneously/together with the candidate for an election to the office of the President who nominated him to satisfy the constitutional and electoral law requirements for nomination.
The validity of the nomination of the candidate for an election to the office of the President is conditional on his nomination of the candidate to the office of the Vice President. Consequently, the next issue that needs to be clarified is at what point in time should the candidate exercise his prerogative under section 142(1) of the 1999 Constitution to nominate another candidate as his associate from the same political party for his running for the office of President, who is to occupy the office of Vice-President, is it before his nomination or after his nomination?
To answer to this question will be derived from the resolution of another question for clarity and it When is the nomination of the candidate for an election to the office of the President of Nigeria completed?
From the decision in JEGEDE & ANOR v. INEC & ORS (supra) the sponsorship of a candidate for the elective position under section 131 of the 1999 Constitution is achieved by process of nomination which is taken by the relevant congress or convention of the political party at a primary election of the political party held to nominate or select its candidate for the election.
Section 84(1) and (2) of the Electoral Act 2022 provides that:
84(1). A political party seeking to nominate candidates for elections under this Act shall hold primaries for aspirants to all elective positions which shall be monitored by the candidates by Commission.
(2) The procedure for the nomination of candidates by political parties for the various elective positions shall be by direct, indirect primaries or consensus.
It is submitted that a candidate is deemed nominated at the conclusion of the primary election of the political party. By section 84(4)(5)(a) and (9) of the Electoral Act 2022 where the political party adopt the direct or indirect primaries procedure for the nomination presidential candidate aspirant with the highest number of votes cast at the end of voting at the primaries shall be declared the winner of the presidential primaries of the political party and that aspirant’s name shall be forwarded to the Commission (INEC) as the candidate of the party but if the political party adopts a consensus candidate it shall secure the written consent of all cleared aspirants for the position, indicating their voluntary withdrawal from the race and their endorsement of the consensus candidate and that aspirant’s name shall also be forwarded to the Commission (INEC) as the candidate of the party.
The act of forwarding the name of the candidate already nominated by the political party to the INEC under this provision and under section 29(1) of the Electoral Act 2022 is a formality; a simple communication/notification of the result of an already concluded party primary election and it does not add anything to the nomination process and neither does it validate or invalidate the result of primary election or equate to nomination of a candidate. Section 29(1) of the Electoral Act provides
29. (1) Every political party shall, not later than 180 days before the date appointed for a general election under this Act, submit to the Commission, in the prescribed Forms, the list of the candidates the party proposes to sponsor at the elections, who must have emerged from valid primaries conducted by the political party.
The import of section 29(1) of the Electoral Act which requires every political party not later than 180 days before the date appointed for a general election under this Act to submit to the INEC the list of the candidates the party proposes to sponsor at the elections, who must have emerged from valid primaries conducted by the political party was considered by the Supreme Court in JEGEDE & ANOR v. INEC & ORS (supra) where it held
Let me clarify here that exhibit 21, the letter from the 2nd respondent and Form EC9B submitting the names of its candidate for the election is a notice or communication to the 1s respondent of its decision to sponsor those candidates for the election. It is wrong to describe or regard such letter as the act of sponsorship or the decision to sponsor.
This now being the settled position of the law, it is without dispute that a candidate for an election to the office of the President of Nigeria is validly nominated at the conclusion and the declaration of the winner of the presidential primary election and not when its party communicates the result to the INEC.
Thus, the validity or otherwise of a candidate’s nomination can only be contested on the basis of the facts and events emanating from the conduct of the primary election and not from events arising thereafter like the communication/submission of the name of the winner to the INEC.
If you are persuaded to hold that a political party’s candidate for an election to the office of the President of Nigeria is deemed nominated at the conclusion of the primary election when the winner is declared.
Having reached this conclusion it is now appropriate to deal with the earlier question At what point in time should the candidate exercise his prerogative under section 142(1) of the 1999 Constitution to nominate another candidate as his associate from the same political party for his running for the office of President, who is to occupy the office of Vice-President, is it before his nomination or after his nomination? Extrapolating from the argument proffered above, the nomination of the candidate for the office of the Vice President should be before the primary election or must have been settled at the commencement of the primary election. This is because the operative wording of section 142(1) states that “… a candidate for an election to the office of President shall not be deemed to be validly nominated unless he nominate another candidate …” it is submitted that the victory of a candidate who fails to nominate a candidate for the office of the Vice President to participate with him in the primary election is a nullity given the settled fact that the procedure for nomination of a candidate is completed at the primary election of the party when the aspirant with the highest vote is declared the winner. And given the fact that section131(c) of the 1999 Constitution requires the candidate for an election to the office of the President to be sponsored by the political party is equally applicable to the candidate for the office to the Vice President and given the decision of the Supreme Court in JEGEDE & ANOR v. INEC & ORS (supra) makes it clear that the decision to sponsor a person as the candidate of a political party for a general election is taken at a primary election of the political party held to nominate its candidate for the election. It is submitted that there is no permissible time under the 1999 Constitution for the candidate for the office of the Vice President to be participate in a primary election except at the primary election where the candidate for an election to the office of the President is being conducted.
The first part of section 142(1) applies immediately to either validate or nullify the declaration of the result of the nomination process. It is incongruous with the provision of the 1999 Constitution and the Electoral Act 2022 for the validity of the result of a concluded nomination procedure to be subjected to an additional requirement after or outside of the nomination process.
It is submitted that when construing constitutional provisions and indeed any statute the Court has a duty to give the words it plain and ordinary meaning except where it would lead to absurdity. Constitutional language is to be given a reasonable construction, and absurd consequences are to be avoided; constitutional provisions dealing with the same subject matter are to be construed together and seemingly conflicting parts are to be harmonized, if possible, so that effect can be given to all parts of the Constitution. See the decision of the Supreme Court in ISHOLA V. AJIBOYE (1994) 7-8 SCNJ (PT.1) 1 AT 35, per OGUNDARE, JSC and the decision in ATTORNEY-GENERAL OF BENDEL STATE V. ATTORNEY-GENERAL OF THE FEDERATION (1981) 10 SC. 1; (1981) 1 FNLR 179 per OBASEKI, JSC wherein the Supreme Court devised now famous twelve (12) point rule of constitutional interpretation as follows: – “(1) Effect should be given to every word used in the Constitution. (2) A Construction nullifying a specific clause in the Constitution shall not be tolerated, unless where absolutely necessary. (3) A constitutional power should not be used to attain an unconstitutional result. (4) The language of the Constitution, where clear and unambiguous must be given its plain and evident meaning. (5) The Constitution of the Federal Republic of Nigeria is an organic scheme of government to be dealt with as an entirety hence a particular provision should not be severed from the rest of the Constitution. (6) While the language of the Constitution does not change the changing circumstances of a progressive society for which it was designed, it can yield new and further import of its meaning. (7) A constitutional provision should not be construed in such a way as to defeat its evident purpose. (8) Under the Constitution granting specific powers, a particular power must be granted before it can be exercised. (9) Declaration by the National Assembly of its essential legislative functions is precluded by the Constitution. (10) Words are the common signs that men make use of to declare their intentions one to another, and when the words of a man express his intentions plainly, there is no need to have recourse to other means of interpretation of such words. (11) The principles upon which the Constitution was established rather than the direct operation or literal meaning of the words used should measure the purpose and scope of its provisions. (12) Words of the Constitution are therefore not to be read with “stultifying narrowness”.
It is submitted that the intendment of the framers of the 1999 Constitution is for both the candidate for an election to the office of the President and his chosen candidate for the office of the Vice President to jointly seek the nomination of their political party and to contest the presidential elections jointly. The reason for this is not farfetched, by section 131(c) of the 1999 Constitution which is applicable with equal force to the candidate to the office of the Vice President it is mandatory that the candidate for the office of the Vice President must be a member of the political party and must be sponsored by that party. It is important to recall that the act of sponsorship has been judicially decided to mean nomination at the primary election of a political party. See JEGEDE & ANOR v. INEC & ORS (supra). Furthermore, section 84(1), (2), (4), (5)(a) and (9) of the Electoral Act 2022 of the Electoral Act does not contemplate the exemption of any candidate for an elective office from participating in the nomination process.
Additionally, it is submitted that the 1999 Constitution envisages a single executive and one of the implications of the principle of a single executive as it relates to the office of the Vice President is although it is an elective position, he is not voted in a separate election but by the very same votes by which the President is elected, thus a candidate for an election to the office of the President and the candidate for the office to Vice President run a joint ticket, they are fused together from the start like Siamese twins for the purposes of seeking the nomination of their party and contesting the election as they win or lose together. This is abundantly clear from the second part of section 142(2) which deal with post-election realities.
It states:142(1) …and that candidate shall be deemed to have been duly elected to the office of Vice-President if the candidate for an election to the office of President who nominated him as such associate is duly elected as President in accordance with the provisions aforesaid.
It is submitted that to allow the nomination of the candidate for the office of the Vice President after-the-event, after the conclusion of the parties respective presidential primary elections like the APC, PDP and LP have done will lead to an absurdity and is antithetical to the foundational block of the principle of a single executive which the Supreme Court in its lead judgment in AG FEDERATION & ORS V. ABUBAKAR & ORS (2007) LPELR-3(SC) per Akintan, JSC stated is the intention of the framers of the 1999 Constitution. He held:
One of the implications of the principles of a single executive, as relates to the Vice President, is that although the office of Vice President is, unlike that of a minister under the system, an elective one, he is not voted in a separate election, but by the very same votes by which the President is elected. This is because, as already shown above, a Presidential candidate is required to nominate another candidate to run with him on the same ticket as “a mate or associate” for the office of Vice President.
I believe that the unity contemplated by the arrangement transcends the election. I also believe and hold that their relationship should be throughout their joint term.
From the above, the provision of the 1999 Constitution must be construed to avoid the absurdity of exempting one candidate out of several candidates for elective offices from a part of the electoral process without any justifiable reason.
Section 142(2) of the 1999 Constitution mandatorily makes the provisions relating to qualification for election (see s. 131 of the 1999 Constitution), tenure of office, disqualification, declaration of assets and liabilities and oaths of President applicable to the office of Vice-President as if references to President were references to Vice-President. Section 141(1) of the 1999 Constitution is sine qua non for election to the office of the President. Any candidate who fails to meet this qualification his nomination shall not be deemed valid.
It is important to bear in mind that the Electoral Act 2022 is a subsidiary legislation which operates side by side with the 1999 Constitution. Both the Constitution and the Electoral Act has to be read together in order to give effect and meaning to the rights and obligations created thereunder.
Any argument seeking to comparatively analyze the nomination process and or laws of other democracies to provide guidance for the Court will be misleading and it will be applicable. The Supreme Court in CHIGBU V. TONIMAS NIG. LTD. & ANOR (2006) LPELR-846(SC) held that
Where a local statute is available and applies to a particular local situation, courts of law have no jurisdiction to go all the way to England to search for an English statute. This is because by the local statute, the lawmakers intend it to apply in the locality and not any English statute which is foreign and inapplicable.” Per NIKI TOBI, JSC (Pp 24 – 24 Paras C – E)
By parity of reasoning the intention of the drafters of the 1999 Constitution cannot be deciphered from the examination of foreign law or the practice of other democracies like the US, Canada etc.
On the whole, a community reading of 131(c), 141, 142(1)(2) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and sections 29(1), 32(1), 84(1)(2)(3), 152 of the Electoral Act 2022 imposes on political parties including the APC, PDP, LP and others the obligation to sponsor their candidates for election to the office of the President and Vice President and to ensure that they jointly seek the nomination of the party at the primary election in other for their nomination to be deemed valid under section 142(1) of the to 1999 Constitution and this equally applies to gubernatorial candidates and their “running mates”.
INEC and the political parties must retrace their steps and correct this grievous constitutional anomaly without further prompting.
This Article is Written by Ataguba S. Aboje, Esq.
