Legal Opinion: Can an aspirant who participated in the primary election of a political party defect to another and seek nomination?

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By Godfrey Okonkwo Agbo

INTRODUCTION
The last month has been a beehive of activities for all the registered political parties in Nigeria ahead of the 2023 general elections. Following the conclusion of the nomination of candidates by the ruling APC, the opposition PDP, and the emerging ‘third force’, there have been insinuations from political discourses suggesting that the new Electoral Act 2022 prohibits the practice of shopping for another party platform by aspirants who failed, for one reason or the other, to clinch party ticket in a previous attempt in their first choice of party. In fact, in the last few days, I have been inundated by genuine requests from friends and associates for my legal opinion on this subject. Again, there is palpable apprehension amongst politicians who participated but failed to secure party tickets in their various parties to try their luck in another party; the same foreboding is the reason some aspirants like Senators Ekweremadu and Abaribe decided at the dying minutes of the primaries of PDP to withdraw from the contest and thereby not be seen as having participated at all in the first instance. What follows hereunder is my considered view on the subject, having studied the Electoral Act, the Constitution and relevant case law(s) on the topic.

THE ELECTORAL ACT 2022.

The new Electoral Act 2022 became operative on 2nd March 2022, effectively repealing the Electoral Act No.6, 2010. From my personal study of the new Electoral Act, the only aspect that touches on the subject of the nomination of candidates of political parties in Section 35 thereof (formerly Section 37 in the repealed Act). It provides:
*”35. Where a candidate knowingly allows himself to be nominated by more than one political party or in more than one constituency, his nomination shall be void”*

Some analysts have erroneously argued that the above-cited provision of the Electoral Act has effectively stopped any aspirant who has participated in the primaries of party A from defecting to party B to seek the nomination. In support of this line of argument, they rely on the decision of the Supreme Court in *UGWUMBA UCHE NWOSU V. ACTION PEOPLES PARTY & 3 OTHERS (2020) 16 NWLR PART 1749, p.28*
Permit me to take us through the facts of this case as doing so will enable a holistic grasp and appreciation of the matter as well as the ratio decidendi (the reason for the decision).

UCHE NWOSU (Son-in-law of former Governor of Imo State, Owelle Rochas Okorocha) contested and won the primaries conducted by the APC on 6/10/2018; and his name was forwarded to INEC (4th Respondent in appeal) as the governorship candidate of the APC in the general elections slated for 9/3/2019. Uche Nwosu (the Appellant) also contested and won the governorship primaries conducted by another political party, the Action Alliance, and on 2/11/2018, he was issued with a ‘certificate of return and confirmation as the duly elected governorship candidate of AA. In February 2019, ACTION PEOPLES PARTY, MR UCHE NNADI AND THE PEOPLES DEMOCRATIC PARTY (1st – 3rd Respondents, respectively) sued UCHE NWOSU and therein challenged his nomination by the two political parties at the Federal High Court, Abuja, seeking, among other reliefs, a declaration of the court that the nomination of Uche Nwosu as the governorship candidate of the AA was invalid, null and void having been made at the pendency of similar nomination of the APC for the same position.

The Supreme Court interpreted Section 37 of the Electoral Act 2010 (now Section 35 of the Electoral Act 2022) and held that the conduct of the Appellant (Uche Nwosu) in knowingly presenting himself for nomination in another political party, the Action Alliance during the pendency of nomination by the APC, was illegal. In the lead judgment read by AUGIE, J.S.C, the Court declared as illegality the subsequent nomination by the Action Alliance as its gubernatorial candidate. In the words of JUSTICE AUGIE, the court held, “By allowing himself to be nominated by two political parties, the Appellant, not only did an act that is not authorized by law, which is illegal, the Electoral Act clearly says in its section 37 that such a nomination ‘shall be void”. It’s instructive to note that the decision of the court (constituted by 5 learned justices) was unanimous as none of the justices in the panel that heard the appeal dissented. It needs to be added also that the decision was an affirmation of the concurrent findings of the two lower courts in the judicial rung, that is, the Federal High Court, Abuja and the Court of Appeal had decided the matter against the Appellant before it proceeded to the apex court. In his concurring judgment, EJEMBI EKO, J.S.C deprecated the conduct of the Appellant in the following words:
“The purpose of section 37 of the Electoral Act is to forestall a situation where the rich and powerful will impose on the nation the culture, or the dictatorship, of a single party “democracy”. That is, the prohibition of a situation where the high and the mighty will impose themselves on all the political parties by buying up the candidature by whatever means, howbeit nefarious, in order that he would be the Abacha style sole candidate “on whom the cap fits”. And that would be a prelude to fascism. The court will not aid any party in the direction of the Golgotha for the crucifixion of the nation’s multi-party democracy. Such madness will be nipped at the bud”.
He further held:
“An individual who ‘knowingly allows himself to be nominated by more than one political party’ commits an illegality under section 37 of the Electoral Act”.

CONCLUSION

The extant revised Electoral Act 2022 makes no provision prohibiting a person who has previously participated in the primary election process of one political party but failed to secure its nomination for one reason or the other from cross-carpeting to another party platform to seek the nomination. Neither is the judicial authority discussed in the foregoing premises supportive of such perceived prohibition. Indeed, a person who, aspiring for a public office, participated in the primary election of one political party but failed to get the nomination of that party, can move to another political party to seek that other party’s nomination. The law forbids double or multiple nominations, not double or multiple participation. I will conclude this opinion by submitting further that it will be tantamount to a gross violation of, and a great disservice to all known canons of statutory interpretation for anyone to ascribe a strangely narrow meaning to the clear provision of section 35 or any other part of the Electoral Act 2022.

Mr Agbo, a legal practitioner, writes from Port Harcourt.