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HomeOpinionGrounds for The Disqualification Of Candidates Under The 2022 Electoral Act

Grounds for The Disqualification Of Candidates Under The 2022 Electoral Act

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By Idrees Gambo

The 2022 Electoral Act is very straight forward on the issues of Qualifications of Aspirants and Candidates. And any other additional qualification not contemplated by section 84 (3) goes to no issue, the section read thus: “A political party shall not impose nomination qualification or disqualification criteria, measures, or conditions on any aspirant or candidate for any election in its constitution,
guidelines, or rules for nomination of candidates for elections, except as prescribed under sections 65, 66, 106, 107, 131, 137, 177 and 187 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).”


Since, the section is specific on the constitutional provisions which provide for both qualification and disqualification provisions, let’s examine them.

The Senate and House of Representatives:
Section 65 (1) provides, thus: “Subject to the provisions of section 66 of this Constitution, a person shall be qualified for election as a member of:


(a) the Senate, if he is a citizen of Nigeria and has attained the age of 35 years; and
(b) the House of Representatives, if he is a citizen of Nigeria and has attained the age of 30 years;

It when further in section 65(2) where it provides: “A person shall be qualified for election under subsection (1) of this section if:


(a) he has been educated up to at least School Certificate level or its equivalent; and
(b) he is a member of a political party and is sponsored by that party.

But section 66(1) provide thus: “No person shall be qualified for election to the Senate or the House of Representatives if:


(a) subject to the provisions of section 28 of this Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, has made a declaration of allegiance to such a country;
(b) under any law in force in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind;
(c) he is under a sentence of death imposed on him by any competent court of law or tribunal in Nigeria or a sentence of imprisonment or fine for an offence involving dishonesty or fraud (by whatever name called) or any other offence imposed on him by such a court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court;
(d) within a period of less than 10 years before the date of an election to a legislative house, he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of a contravention of the Code of Conduct;
(e) he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in any part of Nigeria;
(f) he is a person employed in the public service of the Federation or of any State and has not resigned, withdrawn or retired from such employment 30 days before the date of election;
(g) he is a member of a secret society; or
(i) he has presented a forged certificate to the Independence National Electoral Commission.”

The subsection (2) equally provides: “Where in respect of any person who has been-
(a) adjudged to be a lunatic;
(b) declared to be of unsound mind;
(c) sentenced to death or imprisonment; or
(d) adjudged or declared bankrupt,
any appeal against the decision is pending in any court of law in accordance with any law in force in Nigeria, subsection (1) of the section shall not apply during a period beginning from the date when such appeal is lodged and ending on the date when the appeal is finally determined or, as the case may be, the appeal lapses or is abandoned, whichever is earlier.

Section 66(3) went further: “For the purposes of subsection (2) of this section “appeal” includes any application for an injunction or an order certiorari, mandamus, prohibition or habeas corpus, or any appeal from any such application.

Member House of Assembly:
In another vein, section 106 provide thus: “Subject to the provisions of section 107 of this Constitution, a person shall be qualified for election as a member of a House of Assembly if –
(a) he is a citizen of Nigeria;
(b) he has attained the age of thirty years;
(c) he has been educated up to at least the School Certificate level or its equivalent; and
(d) he is a member of a political party and is sponsored by that party.

Just like section 66 above, section 107(1) privedes in same manner thus: “No person shall be qualified for election to a House of Assembly if –
(a) (deleted under the First Alteration Act)
(b) under any law in force in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind;
(c) he is under a sentence of death imposed on him by any competent court of law or tribunal in Nigeria or a sentence of imprisonment or fine for an offence involving dishonesty or fraud (by whatever name called) or any other offence imposed on him by such a court or tribunal substituted by a competent authority for any other sentence imposed on him by such a court or tribunal;
(d) within a period of less than ten years before the date of an election to the House of Assembly, he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of a contravention of the Code of Conduct;
(e) he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in any part of Nigeria;
(f) he is a person employed in the public service of the Federation or of any State and he has not resigned, withdrawn or retired from such employment thirty days before the date of election;
(g) he is a member of any secret society;
(h) he has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunals of Inquiry Law or any other law by the Federal and State Government which indictment has been accepted by the Federal or State Government, respectively; or
(i) he has presented a forged certificate to the Independent National Electoral Commission.

And the subsection (2) provides as well tbus: “Where in respect of any person who has been –
(a) adjudged to be a lunatic;
(b) declared to be of unsound mind;
(c) sentenced to death or imprisonment; or
(d) adjudged or declared bankrupt,
any appeal against the decision is pending in any court of law in accordance with any law in force in Nigeria, subsection (1) of this section shall not apply during a period beginning from the date when such appeal is lodged and ending on the date when the appeal is finally determined or, as the case may be, the appeal lapses or is abandoned, whichever is earlier.

It also provides in subsection (3) thus: “For the purposes of subsection (2) of this section, an “appeal” includes any application for an injunction or an order of certiorari, mandamus, prohibition or habeas corpus, or any appeal from any such application.”

Office of the President:
137(1) A person shall not be qualified for election to the office of President if –
(a) subject to the provisions of section 28 of this Constitution, he has voluntarily acquired the citizenship of a country other than Nigeria or, except in such cases as may be prescribed by the National Assembly, he has made a declaration of allegiance to such other country; or
(b) he has been elected to such office at any two previous elections; or
(c) under the law in any part of Nigeria, he is adjudged to be a lunatic or otherwise declared to be of unsound mind; or
(d) he is under a sentence of death imposed by any competent court of law or tribunal in Nigeria or a sentence of imprisonment or fine for any offence involving dishonesty or fraud (by whatever name called) or for any other offence, imposed on him by any court or tribunal or substituted by a competent authority for any other sentence imposed on him by such a court or tribunal; or
(e) within a period of less than ten years before the date of the election to the office of President he has been convicted and sentenced for an offence involving dishonesty or he has been found guilty of the contravention of the Code of Conduct; or
(f) he is an undischarged bankrupt, having been adjudged or otherwise declared bankrupt under any law in force in Nigeria or any other country; or
(g) being a person employed in the civil or public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days before the date of the election; or
(h) he is a member of any secret society; or
(j) he has presented a forged certificate to the Independent National Electoral Commission.

It goes further in subsection (2) thus: “Where in respect of any person who has been –
(a) adjudged to be a lunatic;
(b) declared to be of unsound mind;
(c) sentenced to death or imprisonment; or
(d) adjudged or declared bankrupt
(e) any appeal against the decision is pending in any court of law in accordance with any law in force in Nigeria, subsection (1) of this section shall not apply during a period beginning from the date when such appeal is lodged and ending on the date when the appeal is finally determined or, as the case may be, the appeal lapses or is abandoned, whichever is earlier.

Additionally, section 131 provides thus: “A person shall be qualified for election to the office of the President if –
(a) he is a citizen of Nigeria by birth;
(b) he has attained the age of forty years;
(c) he is a member of a political party and is sponsored by that political party; and
(d) he has been educated up to at least School Certificate level or its equivalent.

THE STATE GOVERNOR:
Section 177 provides thus: “A person shall be qualified for election to the office of Governor of a State if
(a) he is a citizen of Nigeria by birth;
(b) he has attained the age of thirty-five years;
(c) he is a member of a political party and is sponsored by that political party; and
(d) he has been educated up to at least School Certificate level or its equivalent.

  1. (1) In any election to which the foregoing provisions of this part of this Chapter relate a candidate for the office of Governor of a State shall not be deemed to have been validly nominated for such office unless he nominates another candidate as his associate for his running for the office of Governor, who is to occupy the office of Deputy Governor; and that candidate shall be deemed to have been duly elected to the office of Deputy Governor if the candidate who nominated him is duly elected as Governor in accordance with the said provisions.

(2) The provisions of this Part of this Chapter relating to qualification for election, tenure of office, disqualifications, declaration of assets and liabilities and Oath of Governor shall apply in relation to the office of Deputy Governor as if references to Governor were references to Deputy Governor.

ON WHAT GROUND CAN THE COURT DISQUALIFIED A CANDIDATE OR NULIFIES HIS ELECTION?
Section 130(1) provided a clarity, where it provides thus: “No election and return at an election under this Act shall be questioned in any manner other than by a petition complaining of an undue election or undue return (in this Act referred to as an “election petition”) presented to the competent tribunal
or court in accordance with the provisions of the Constitution or of this Act, and in which the person elected or returned is joined as a party.
(2) In this Part “tribunal or court” means —
(a) in the case of Presidential election, the Court of Appeal; and
(b) in the case of any other elections under this Act, the election tribunal
established under the Constitution or by this Act.
(3) The election tribunals shall —
(a) be constituted not later than 30 days before the election; and
(b) when constituted, open their registries for business seven days before the election.

While section 134 provides for grounds upon which a petition can be filed to challenge any return in an election, where the subsection (1) said thus: “An election may be questioned on any of the following grounds —
(a) a person whose election is questioned was, at the time of the election, not qualified to contest the election;
(b) the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act; or
(c) the respondent was not duly elected by majority of lawful votes cast at the election.
(2) An act or omission which may be contrary to an instruction or directive of the Commission or of an officer appointed for the purpose of the election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election.
(3) With respect to subsection (1) (a), a person is deemed to be qualified for an elective
office and his election shall not be questioned on grounds of qualification if, with
respect to the particular election in question, he meets the applicable requirements
of sections 65, 106, 131 or 177 of the Constitution and he is not, as may be
applicable, in breach of sections 66, 107, 137 or 182 of the Constitution.
Grounds of petition.
Cap. C23, LFN, 2004.

Section 135 settles it as folkows: “(1) An election shall not be liable to be invalidated by reason of non-compliance with
the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act
and that the non-compliance did not affect substantially the result of the election.
(2) An election shall not be liable to be questioned by reason of a defect in the title or
want of title of the person conducting the election or acting in the office provided such a person has the right or authority of the Commission to conduct the election.
(3) No election shall be questioned or cancelled by reason that there is a mistake, conflict or inconsistency in the date contained in the result of such election signed by a returning officer or any other officer of the Commission.

In section 136 the Electoral Act provides thus: “(1) Subject to subsections (2) and (3), if the Tribunal or the Court as the case may be, determines that a candidate who was returned as elected was not validly elected on
any ground, the Tribunal or Court shall nullify the election and order the
Commission to conduct a fresh election not later than 90 days after the —
(a) decision if an appeal is not filed against the decision; or
(b) nullification of the election by the court having final appellate jurisdiction in respect of the said election.
(2) Where an Election Tribunal or Court nullifies an election on the ground that the person who obtained the highest votes at the election was not qualified to contest
the election, the Election Tribunal or Court shall declare the person with the second highest number of valid votes cast at the election who satisfies the requirements of the Constitution and this Act as duly elected:
Provided that the person with the second highest number of valid votes cast at the election remains a member of the political party on which platform he contested the election otherwise, the candidate with the next highest number of votes in the election and who satisfies the same conditions shall be declared the winner of the election.
(3) If the Tribunal or the Court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the Election Tribunal or the Court, as the case may be, shall declare as elected the candidate who scored the highest number of valid votes
cast at the election and satisfied the requirements of the Constitution and this Act.
(4) All objections filed in an election petition shall be determined at the time of final judgment.

Finally, it’s very clear from the forging that the court of law, in interpreting the provisions of the Electoral Act or the Constitution must limits itself to only grounds provided herein. And it is worthy of note that this piece is only trying to pring forward the relevant provisions of the extant laws with regard to the issues of qualification or disqualification of aspirants or candidates as its relate to election in Nigeria.

Idrees Gambo is a legal practitioner and the CEO S. G. Idrees & Co. (Al-Mufeed Law Firm), In Bauchi State.

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