INTRODUCTION

A new trend in Nigeria’s political space is the suspension or expulsion of validly nominated candidates by their own political parties before the conduct of the general elections. In October, 2022 the ruling All Progressives Congress (APC) expelled its Senatorial Candidate, Senator Elisha Abbo few months to the 2023 General Election. Similarly, Nigeria’s largest opposition party, Peoples Democratic Party (PDP), suspended not less than 8 of its validly nominated candidates contesting to become federal and state lawmakers. This gale of suspension and expulsion of nominated candidates has far-reaching legal implications and this article shall make an attempt into addressing them.

CANDIDATES ARE MEMBERS OF POLITICAL PARTIES

Under Nigeria’s electoral regime, candidates are sponsored and nominated by their political parties. By virtue of Section 221 of the 1999 Constitution of the Federal Republic of Nigeria, only a political party shall canvass for votes for any candidate at any election. Section 152 of the Electoral Act, 2022 defines a candidate as a person who has secured the nomination of a political party to contest an election for any elective office. Therefore, to be nominated by a party, the candidate shall be a registered member of his nominating political party.

Interestingly, candidates can only be elected or voted for after they emerge from valid primaries conducted by their party and their names submitted by their party to the Independent National Electoral Commission (INEC). Put simply, independent candidacy is unknown to the Nigerian law and candidates can only contest election through the platform of their political parties.

IMPLICATION OF SUSPENSION ON PARTY’S CANDIDATES

Most political parties in Nigeria have procedures in their Constitution to discipline members which may range from suspension to expulsion. Usually, expulsion terminates the membership of a party member while suspension temporarily terminates the membership of a party member.

By implication, a candidate already nominated by his party may no longer enjoy the privileges of a bonafide member upon expulsion or suspension. The follow-up question, therefore, is: Will the mere suspension of a candidate from him party affect his candidacy? Put in another way, will a candidate lose his nomination by the mere fact that his party has suspended or expelled him? Better still, can a political party substitute the name of an expelled or suspended candidate before the conduct of the election?

In my respectful view, Section 33 of the Electoral Act, 2022 gives an answer to the above posers. It provides that “a political party shall not be allowed to change or substitute its candidates whose name has been submitted under Section 29 of this Act, except in the case of death or withdrawal of candidate…”.

Flowing from the foregoing, the only instance where a validly nominated candidate whose name has been submitted to INEC by a party can be changed or substituted is when the candidate dies or withdraws from the race in accordance with Section 31 of the Electoral Act, 2022. Except for the two instances, a candidate’s name cannot be substituted under any circumstances whatsoever. This is applicable even where the candidate validly nominated is expelled or suspended before the general election.

The position of the law as aptly put often times, is that the mention of specific things or persons is a clear intention that those not mentioned are not intended to be included. That is “Expressio unius est exclusio alterius” – i.e. the expression of one thing is the exclusion of another. See the cases of EHUWA V. ONDO STATE INDEPENDENT ELECTORAL COMMISSION (2006) LPELR-1056(SC); GOV OF IMO STATE & ORS v. DELU ENT (NIG) LTD (2021) LPELR-54724(CA)

Therefore, the express mention of death and withdrawal in the Electoral Act as the only mode of substituting the name of a validly nominated candidate implies that any other mode not clearly mention are excluded. Thus, expulsion or suspension of a candidate from his political party is not and cannot be a ground for his substitution and it does not invalidate his candidacy.

Instructively, any written notice or letter written by a political party informing INEC that its nominated candidate has been expelled or suspended from the party cannot be a valid ground for the substitution of a validly nominated candidate, his expulsion or suspension from his sponsoring party, notwithstanding. INEC cannot rely on the printed letter of a political party to substitute a candidate or invalidate his candidacy. INEC has no power in law to accept the substitution of a candidate by a political party except in case of death and withdrawal. Substituting a candidate as a result of his expulsion or suspension by his sponsoring political party is not supported by any law.

EXPULSION OR SUSPENSION OF CANDIDATES: WITHER FAIR HEARING?

In most Constitutions of political parties in Nigeria, the principle of fair hearing is included in its disciplinary provisions. Where an allegation of misconduct or violation of a party’s Constitution is made against a candidate, the party ought to afford the candidate the opportunity to defend himself. Where fair hearing is absent, particularly where it’s provided for in the party’s constitution, the expulsion or suspension of such a candidate is illegal and a nullity.

CONCLUSION

In the final analysis, it is important to subtly emphasize that while a political party can suspend or expel its candidate, this cannot be a basis, known to law, for the substitution of the candidate’s name with INEC or invalidating his candidacy. Candidates are therefore strongly advised to settle all internal issues with their party organs so as to avert controversial circumstances that could cost them a fortune. In the event of suspension or expulsion, candidates may elect to approach a court of competent jurisdiction for the review of the party’s decision and contemporaneously write to INEC informing the body of the pending lawsuit. This may serve as a first aid pending the time the political issues within the party are internally resolved.

Festus Ogun is the Managing Counsel of FOLEGAL. festus@folegal.net

DISCLAIMER: This article is only intended to provide general information on the subject matter and does not by itself create a client/attorney relationship between readers and our Law Firm or serve as legal advice. We are available to provide specialist legal advice on the readers’ specific circumstances when they arise. Contact us at info@folegal.net +234 906 632 4982

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