President Muhammadu Buhari, on Friday, February 25, 2022 signed the Electoral Act, 2022. The assent has ushered in a new legal regime in regulating pre-election disputes in Nigeria. Two far-reaching provisions are contained in Sections 29 (5), (6) and 84(11) and (12) of the Electoral Act, 2022. The two provisions delisted the jurisdiction of State and Federal Capital Territory, Abuja High Courts to hear and determine pre-election disputes.

 In addition, locus standi to institute pre-election cases has been restricted to aspirants within the same political party. Thus, members of the public have no right to challenge a candidate that submitted false information or document to the Independent Electoral Commission (INEC).

Section 31 (5) of the repealed Electoral Act, 2010 had  empowered the Federal High Court, State High Court or High Court of the Federal Capital Territory, Abuja, with the jurisdiction over suit filed by any person who has reasonable ground that a candidate has submitted false information or document to INEC.

 In the new Electoral Act, a dispute over the submission of false information in an affidavit and any documents to the INEC by a candidate is an intra-party dispute. Only a member of the political party who took part in the primaries will have the locus to challenge the nomination of the candidate suspected to have submitted false information and/or document to INEC.

Section 29(6) added, “Where the Court determines that any of the information contained in the affidavit is false only as it relates to constitutional requirements of eligibility, the Court shall issue an order disqualifying the candidate and the sponsoring political party and then declare the candidate with the second highest number of valid votes and who satisfies the constitutional requirement as the winner of the election”.

Jurisdiction of Court on dispute over Conduct of Primaries by Political Parties in Section 87(9) of the repealed Electoral Act, 2010 gave concurrent jurisdiction to the Federal, State and FCT High Court to hear and determine dispute on primaries.

With the promulgation of the Electoral Act, 2022, only Federal High Court has jurisdiction to determine dispute over party primaries. The first consequence of the twin provisions in the pre-election litigation disputes in 2022 is that Federal High Court may witness so many pre-election disputes that may probably overstretch the judges of that Court in some States and the Federal Capital Territory Abuja.

The second legal consequence is that the allegation of submission of false information or false document to INEC by a candidate is an internal party wrangling between aspirants. An aspirant from another political party or any other person who has reasonable ground that a candidate has submitted false information or document to INEC cannot institute suit to challenge such act.

The third legal consequence linked to action on submission of false documents or information is that the National Assembly has ratified the subtle position of the Supreme Court that a successful party in an action under Section 29(5) of the Electoral Act shall not reap the benefit of his success.

In other words, an aspirant who succeeded in proving that candidate submitted by their political party who subsequently won the general election, and declared by the Federal High Court to have perjured, will not be returned as a winner but rather, a candidate of the opposition party that came second in the general election will be returned as the winner.

There is no doubt that the Electoral Act, 2022, has brought far-reaching changes in pre-election litigation in Nigeria. The trial courts to entertain cases of pre-election matters have been trimmed from three to one. The pre-election matter is now a Federal High Court affair with FCT High Court and State High Court to concentrate on their normal cases.

Thus, there is a need for the Members of the National Assembly to, if opportunity permits, reconsider the issue of locus standi in cases of submitting false information or document by a candidate to allow all members of the public right to sue where they have reasonable ground that a candidate has submitted false information or document to INEC.

WRITTEN BY TONY OKAFOR

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