INEC should have rejected Buhari’s nomination form
By Aloy Ejimakor
The Nigerian Constitution and the Electoral Act clearly stipulated the minimum qualifications for seeking elective public offices. For purposes of this essay, I will classify the qualifications in two broad categories – patent and latent. Examples of the patent ones are evidence of citizenship; educational qualifications; and nomination by, and membership of a political party. Latent ones include conviction for enumerated offenses, etc.
For the patent ones, INEC is legally bound to ‘reject’ a candidate who fails (or whose party fails) to provide evidence that he possesses the qualification stipulated by law. As in the caption of this essay, notice that I did not say that INEC can legally ‘disqualify’, as such drastic measure still lies with the courts as we shall presently see in some instances, especially of the latent kinds.
Let me illustrate: Say, for instance, a candidate is presented to INEC without proof of his membership of a political party and his nomination by that party? Is INEC bound to accept the candidate and tell those challenging such candidate based on party non-membership and nomination to proceed to court? If such should happen, then you can say that INEC might as well accept independent candidates, factional candidates, underage candidates, non-citizen candidates, or even worse.
Now, analyze this: Why does INEC believe that it can ‘reject’ certain candidates on grounds of invalid nominations (due to factions, faulty congresses, etc) but feels conveniently powerless to do so in a clear case of failure to provide documents of claimed (and required) academic qualification?
And what about age? Should INEC accept a toddler who somehow got nominated by a political party by dint of some mystic interventions, or when it is, perchance, presented as something of a joker on INEC? What if the toddler crawled into INEC’s office or arrived by way of a baby pram pushed by his mother as the ‘chairman of his political party’, shall we then just simply say: ‘Oh! Leave him alone, it’s for the courts to determine that he is a child and then may disqualify, not INEC’. Laughable, right?
I dare say, therefore, that the ‘go-to-court’ provisions contained in the Electoral Act do not apply to any of the patent qualifications INEC can, without more, determine on its own, on the spot. Those provisions apply only to the latent (dis)qualifications, such as conviction for offenses, which expectedly are prone to willful concealment by a candidate hit by such a disqualifying factor; or because it can sometimes become arguable, as in the case of James Ibori. Better yet, you might wager that Buhari could have been saved by ‘go-to-court’ if he had just claimed high school equivalency which, if challenged, becomes a contestable issue of qualitative judicial analysis beyond the limited administrative purview of INEC.
Now that we have seen the folly of this ‘go-to-court’ sing-song, let us examine where candidate Buhari fits in. Recall that possessing the minimum educational qualification is a patent requirement, the documentary proof of which lies with the candidate before his nomination form is accepted by INEC. It is not enough to just assert or aver, as Buhari did, that he possessed such qualification without attaching a scintilla of proof. Affidavits won’t cut it as what is required here is what the law universally defines as ‘best evidence’, represented by either the original or a certified true copy of the qualification claimed. But assuming such candidate managed to get through with a mere affidavit as Buhari had done, it becomes more damnable if the affidavit later turns untrue. That’s the kernel of the recent (unreported) judgment of the Supreme Court in Modibbo v. Usman, SC/790/2019, delivered on 30/7/19.
But returning to the inherent powers of INEC, where such proof, other than a mere affidavit, is not forthcoming, INEC is bound to ‘reject’ the candidate, not ‘disqualify’. The difference between INEC ‘rejection’ and court ‘disqualification’ is this: While a rejected candidate can be accepted at a later time when he provides the required documentation, and within time, a disqualified candidate remains perpetually disqualified if he had exhausted his right of appeal. At common law, it’s he who asserts that bears the burden of production. It will be absurd, therefore, to expect a third party to go on a fishing expedition, looking for a certificate of which the proponent could not even produce in the first place; or disproving later-day alternative ‘certificate’, the submission of which is unarguably time-barred. Better yet, it challenges your credit when, in proof of one particular qualification, you end up producing different versions thereof, purporting multiple origins. To all of this extent, Atiku’s lawyers found themselves unfairly bearing an evidentiary burden they shouldn’t have borne in the first place.
It neither makes any legal sense, nor does it comport with the intent of the National Assembly when it amended the extant law, adding the additional requirement of production of documents when the previous law did not require so. It is also not the ratio in the Supreme Court judgment that the ‘go-to-court’ crowd are always citing to back up the argument that INEC lacks the power to ‘reject’ a patently undocumented nomination. This notion survives on the flawed legal theory that ‘rejection’ means the same thing as ‘disqualification’.
Finally, it is probative that Nigerian army had then released statement disclaiming Buhari’s assertions that the certificate at issue (WASC) is with ‘army records’. The army had also stated that, though Buhari had – at his commission in 1961 claimed (or affirmed) – that he possessed WASC, he never provided a copy, nor was the army mindful to contemporaneously verify the claim. And then this: If Buhari could not provide his WASC to the army and none to INEC during his previous runs for the presidency, how then did it suddenly turn up this late in time? This is a material legal question that should hardly be resolved in his favor.
- Aloy Ejimakor wrote in from Washington, DC, USA.