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THE ELECTORAL ACT 2022: THE POSITION OF THE LAW ON THE WITHDRAWAL OR DEATH OF A CANDIDATE by Christiana Ufomba

INTRODUCTION:
It is not unusual for political parties to substitute or change the names of their respective Candidates as they deem fit, as the law in fact gives room for them to do so.


The Electoral Act, 2022 which repealed the Electoral Act No. 6, 2010 regulates the conduct of Federal, State and Area Council elections, makes provisions for the restriction of the qualification for elective office to relevant provisions of the Constitution of the Federal Republic of Nigeria 1999, use of card readers and other technological devices in elections and political party primaries, provides a time line for the submission of list of candidates, criteria for substitution of candidates, limit of campaign expenses, and addresses the omission of names of candidates or logo of political parties.
This article considers the position of the Electoral Act 2022 (“the New Act”) on the Death of a Candidate before and after the conduct of an election. It also considers the position of the New Act on the withdrawal of a Candidate before the conduct of election.


Definition of a Candidate:
Before a deep dive into the crux of this article, it is pertinent to appreciate the meaning of the word “candidate”.


The Electoral Act defines a candidate as a person who has secured the nomination of a political party to contest an election for any elective office.

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SUBSTITUTION OF A CANDIDATE
The general rule remains that political parties are prohibited from changing or substituting their candidates whose names have been submitted to the Electoral Commission (“The Commission”).


However, there are only two (2) grounds upon which the wish of a Political party to change/substitute its candidates can be approved by the Electoral Commission.
Section 33 of the Electoral Act, 2022 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.”

Flowing from the provision of Section 33, it can be deduced that the grounds for the substitution of a candidate are basically:

  1. Death or;
  2. Withdrawal of the candidate.
    This means that where a candidate who has been validly nominated and whose name has been submitted to Electoral Commission dies or withdraws, the political party shall submit to the Commission within 14 days, the name of a newly nominated candidate after holding a fresh primary election.

PROCEDURE FOR WITHDRAWAL:

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The New Act provides that where a candidate withdraws, such withdrawal must be done by the candidate by a notice in writing signed by him and delivered personally by him to the political party that nominated him. Upon receiving such notice, the Political party must ensure it notifies the Electoral Commission not later than 90 days to the election.

DEATH OF A CANDIDATE BEFORE THE CONDUCT OF THE ELECTION:
The new Act provides that where before the commencement of polls a candidate dies, the Chief National Electoral Commissioner upon being satisfied of the fact of the death, shall postpone the election and the election shall commence within 14 days of the candidate’s death.

It is worthy to note that this must be read in conjunction with the provision of Section 33 of the Electoral Act which mandates the political party affected by the death of its candidate, to conduct a fresh primary election within 14 days of the death of the candidate to produce a fresh candidate to the Electoral Commission for the election concerned.

DEATH OF A CANDIDATE AFTER THE CONDUCT OF THE ELECTION:
The new Act provides that where a candidate dies after polls, but before the announcement of final winner/ announcement of final result, the implication is that the election will be suspended for not more than 21 days.
Where the election is for a legislative house position, the election shall start afresh and the political party whose candidate died may, if it intends to continue to participate in the election, conduct a fresh primary election within 14 days of the death of its candidate and submit the name of a new candidate to the Commission to replace the dead candidate.
It is worthy to note that for gubernatorial, presidential and FCT area council elections, the running mate shall continue with the election (as the new candidate) and nominate a new running mate.
Accordingly, a political party is legally entitled to substitute or change its candidates whose names has been submitted to the Commission provided the political party complies with the Provision of Section 33 of the Electoral Act, 2022.

It is pertinent to note that the substitution of a candidate can be made only after the conduct of fresh primary election duly monitored by the Electoral Commission, not by arbitrary replacement by a political party. In Labour Party v Wike & ors, it was held amongst other things that failure of a political party to give INEC the required notice of convention, conference, or primary elections is fatal.

Therefore, a political party cannot be said to have successfully substituted a candidate in an election if the Electoral commission is not duly informed in the required manner and within the time frame contemplated by the Electoral Act

CONCLUSION:
The Electoral Act, 2022 is a laudable enactment aimed at enhancing electoral processes in Nigeria. The substitution of a candidate upon the death or withdrawal of such a candidate is not a matter strictly within the exclusive purview of political parties as it is now governed by the strict considerations provided in the New Act. Political parties and candidates must therefore comply strictly with the law as to do otherwise would be detrimental.

ABOUT THE WRITER:
Christiana Ufomba is a double-first class legal practitioner. She is currently a Trainee Associate in one of the leading law firms in Nigeria.
She can be reached via:
e-mail: misschristiana99@gmail.com
LinkedIn: https://www.linkedin.com/in/christiana-ufomba-aicmc-39bbaa195

References

Section 152 of the Electoral Act, 2022.
Section 33 of the Electoral Act, 2022.
Section 31 of the Electoral Act, 2022.
Section 34 (1) of the Electoral Act, 2022.
Section 34(3) (a) of the Electoral Act, 2022.
Section 34(3) (b) of the Electoral Act, 2022.
Proviso to Section 34 (3) of the Electoral Act, 2022
(2015) LPELR-25991(CA)
In C.P.C V Ombuagudu, (2013) LPELR-2017(SC), it was reiterated that non-compliance with the provision of the law renders any purported election, primary or nomination invalid.

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