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Legal issues in death, withdrawal of candidate in Nigerian elections

As the 2023 general elections approach, the question of the deaths or withdrawal of candidates of political parties is being examined under the Electoral Act,…

As the 2023 general elections approach, the question of the deaths or withdrawal of candidates of political parties is being examined under the Electoral Act, 2022.

The deaths of the governorship candidates of the Peoples Democratic Party (PDP) in Abia State, Prof Uche Ikonne, and that of National Rescue Movement (NRM) in Adamawa State, Alhaji Aliyu Maina; and the withdrawal of the Social Democratic Party (SDP) senatorial candidate for Rivers South-East, Gokana Geoffrey, have raised fresh legal issues.

In the event of the death of a governorship candidate, the Electoral Act, 2022, has provided how to resolve the situation through the conduct of a fresh primary within 14 days.

The law, however, did not explain the status of the running mate whose principal died before the election, implying that a joint ticket is deemed terminated with the death of the flagbearer.

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Section 33 provides that, “A political party shall not be allowed to change or substitute its candidate whose name has been submitted under Section 29 of this Act, except in the case of death or withdrawal by the candidate: Provided that in the case of such withdrawal or death of a candidate, the political party affected shall, within 14 days of the occurrence of the event, hold a fresh primary election to produce and submit a fresh candidate to the commission for the election concerned.”

A former Attorney General and Commissioner of Justice in Ekiti State, Dayo Akinlaja (SAN), said by the combined reading of sections 33 and 34 of the act, “the political party concerned has to notify INEC and a fresh primary would have to be conducted within 14 days.”

Barrister Jude Akpevweoghene Daniel said the law permits a fresh primary election if the death was after the time for the submission of nomination but before the commencement of polls.

“But if death is after commencement of polls and while polls are yet to be concluded, the running mate becomes the candidate, while the party sources for a new running mate under Section 34 Electoral Act 2022,” he said.

Daniel said for legislative offices, fresh primaries would be required as provided under Section 33 of the Electoral Act 2022.

Similarly, Onyekachi Ubani Esq said there must be a primary of the political party according to their internal rules within 14 days that the party shall organise a fresh primary.

For his part, Buhari Yusuf Esq said the provision of Section 33 of the Electoral Act, 2022 may have been enacted to cure the experience of the Kogi governorship in 2015.

“It may be to cure any anomaly, especially where the candidate has been zoned to a particular area so that they don’t lose out when such things happen,” he said.

On the debate over the status of running mate in such circumstances, Adaeze Anah Esq said the most legally correct thing to do is to go before the court to seek an interpretation.

On the issue of withdrawal from the election by a candidate, Section 29(1) of the Electoral Act, 2022, provides that “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.”

Section 31 states that, “A candidate may withdraw his candidature by notice in writing signed by him and delivered personally by the candidate to the political party that nominated him for the election and the political party shall convey such withdrawal to the commission not later than 90 days to the election.”

Speaking on the provision, Barrister David said INEC can accept a replacement or not depending on guidelines provided by the act.

“INEC can’t reject if the withdrawal occurred not later than 90 days before the election, and the party notified INEC not later than 90 days to the election, and goes ahead to conduct fresh primaries within 14 days of the withdrawal.

“Anything short of these guidelines, INEC can reject. See Sections 31, 33 of the Electoral Act,” he said.

To test this provision, counsel to Atteng Fred, who has been nominated to replace Gokana Geoffrey for the River South-East senatorial district, Jibrin S. Jibrin, challenged the Independent National Electoral Commission (INEC)’s decision to reject the withdrawal and replacement of the candidate.

He is contending that INEC has no constitutional and statutory power to prevent SDP from replacing its candidate who voluntarily withdrew his candidature for the 2023 general elections or “refuses, neglects or fails to accept names of submitted candidates as represented by the 2nd plaintiff, Fred.”

In a judgment, the presiding judge, Justice Emeka Nwite, held that by the provision of Section 29 of the Electoral Act, a candidate can only be substituted either as a result of death or withdrawal from an election.

Justice Emeka Nwite further stated that INEC’s refusal to recognise Atteng’s name as sent to it by the party for substitution was contrary to the provisions of the Electoral Act, 2022.