ELECTORAL ACT, 2022 DOES NOT MAKE IT MANDATORY FOR INEC TO BE INFORMED OF THE WARD CONGRESS OF PDP FOR THE ELECTION OF 3-MAN AD-HOC DELEGATES OR FOR INEC TO MONITOR SAME OR APPROVE THE OUTCOME.
UKPAI UKAIRO ESQ, LEGAL ADVISER, SOUTH EAST ZONE, PEOPLES DEMOCRATIC PARTY
REACTION TO THE TEXT OF THE PRESS CONFERENCE BY ABIA STATE PDP (SIC) GOVERNORSHIP AND OTHER ASPIRANTS HELD ON WEDNESDAY MAY 18TH, 2022
I read with in-depth interest the Press Release referred to above which made the point that the 3-man ward delegate Election of the PDP in Abia State is void because INEC Guidelines for Political Parties, in “Section 1.2”, stipulates a mandatory 7-day notice to INEC stating the date for the holding of the Congress. In addition I watched a video of some prominent members of the same group making the same point at WADATA plaza, Abuja.
I want to stress, without hesitation, that the opinion of the respected body of Governorship aspirants is, with respect, highly flawed, unsupportable in law and should be ignored without much ado.
For starters, in the realm of public law, a body set up by law cannot, on its own, expand powers vested on it beyond that stipulated in the statute. This is founded upon the principles of law that no statutory body can expand its powers by subsidiary legislation beyond the limit set by the Principal legislation establishing the body and vesting it with powers.. This position of law is, also, captured in Section 148 of the Electoral Act, 2022 which states thus:
“The Commission may, subject to the provisions of this Act, issue regulations, guidelines, or manuals for the purpose of giving effect to the provisions of this Act and for its administration.”
The clear meaning of the above is that every regulation, guideline or manuals issued by INEC is subject to the provision of the Electoral Act. This position of the law explains the precise reason why our Courts, under the 2010 Electoral Act, rejected the temptation to accept reports from Smart Cards of INEC because the use of smart cards were founded on Guidelines for elections issued by INEC that went beyond the scope of the Principal legislation, to wit, the Electoral Act 2010 (see the cases of SATURMARI & ANOR V NDUME & ORS (2019) LPELR-48875 (CA), and IKPEAZU V OTTI (2010) LPELR – 45055 (SC).
The question, therefore, is: what is the provision of the Electoral Act, 2022 on the conduct of the Ward Congress for the election of the three-man ad-hoc delegates. For this purpose we must navigate to Section 82 of the Electoral Act, 2022 which states thus:
(1) Every registered political party shall give the Commission at least 21 days’ notice of any convention, congress, conference or meeting convened for the purpose of
merger and electing members of its executive committees, other governing bodies
or nominating candidates for any of the elective offices specified under this Act.
(2) The Commission may, with or without prior notice to the political party attend and observe any convention, congress, conference or meeting which is convened by a political party for the purpose of-
(a) electing members of its executive committees or other governing bodies;
(b) nominating candidates for an election at any level; and
(c) approving a merger with any other registered political party.
(3) The election of members of the executive committee or other governing body of a political party, including the election to fill a vacant position in any of the aforesaid bodies, shall be conducted in a democratic manner and allowing for all members of the party or duly elected delegates to vote in support of a candidate of their choice.
(4) Notice of any congress, conference or meeting for the purpose of nominating candidates for Area Council elections shall be given to the Commission at least 21 days before such congress, conference or meeting.
(5) Failure of a political party to notify the Commission as stated in subsection (1) shall render the convention, congress, conference or meeting invalid.”
The above provisions are very clear in its ipsissima verba. In other words, the literal meaning of the above provision demonstrates a clear intention to place the Congress for the election of the 3-man ad-hoc delegates within the electoral authority and control of the political party. This point is made clearer by Section 84(5)9b)(i) of the Electoral Act which by its express words excludes INEC on the issue of dates. Accordingly, once the NEC of the political party indicates the date for the holding of the Congress for the election of the three-man ad-hoc delegates, the imprimatur of INEC in any form or manner, for purposes of validating same, is not required at all.
Let me add that the legislature is presumed to intend the outcome of legislation. It is, thus, clear that the legislature deliberately excluded ward congresses for the purposes of electing the 3-man ad-hoc delegates from the purview of INEC. This is, obviously, reasonable because of the..