Nigeria’s legislature wants political party members to elect leaders directly. But is it constitutional?

Nigeria’s National Assembly has adopted legislation that allows direct primaries – where all party members and not just delegates will vote in political parties’ primaries to choose candidates for elections. But President Muhammadu Buhari is yet to assent to the Electoral Act No. 6, 2010 (Repeal and Re-enactment) Bill 2021. Though the Independent National Electoral Commission has endorsed other aspects of the bill, it suggested that the president consult with political parties over the controversial direct primaries provision. The Conversation Africa’s Wale Fatade asked public law expert Akinola Akintayo to explain the issues.

Are direct primaries consistent with the constitution?

Some politicians have voiced their opposition. They are worried because the adoption is a direct fallout of happenings in the ruling All Progressives Congress party over selection of candidates for the 2023 general elections. The ruling party is the majority party in the National Assembly.

There are four grounds on which the National Assembly can directly regulate political parties. You can find them in Sections 221 to 229 of the constitution. These are specific provisions in the constitution that deal with regulation of political parties.

The first ground is the provision that the National Assembly can make laws to provide for the punishment of persons who violate specific provisions of the constitution with respect to the formation and operation of political parties.

This is in relation to those who carry on political party activities without registering or without complying with the provisions of the constitution. It also speaks to receiving or retention by political parties of funding from outside the country. This is prohibited and all funds received from abroad must be turned over to the electoral commission within 21 days of such receipt.

The second ground is the authority of the National Assembly to make laws disqualifying anyone found to have aided or assisted political parties to receive or retain funding from overseas.

The third ground is the authority to make laws providing for annual grants to be disbursed to political parties by the electoral commission. The fourth ground is the authority to confer necessary and incidental powers on the commission to perform its functions.

Those provisions and others do not give the National Assembly the power to regulate the primaries of political parties. The constitution doesn’t allow the National Assembly to force political parties to elect candidates this way. The National Assembly may have reasons for adopting direct primaries, but it is inconsistent with the constitution.

Why do you think the National Assembly wants direct primaries?

It is something we knew might come, considering what happened during the presidential primaries in 2018. Contestants allegedly spent millions of dollars to bribe delegates. Any serious legislative body will want to do something about that because it has a trickle down effect on the integrity of the political process and those who emerge as winners. The integrity and sanctity of democracy serve as a barometer of governance in the country.

I think this initiative is a bid to curb the excesses of politicians. That is not to say that the ruling party may not have its own agenda, especially against the background of the disagreement between state governors and National Assembly members on how to select candidates for elections.

What could be done to make the political parties more democratic?

The things that brought us here are the very serious poverty level in the country, the desperation of ordinary Nigerians for survival, lack of education, and political lethargy, among others. People don’t care, they just want to feed themselves and do their stuff and have generally given up on governance and politics. We can see this in low voter turnout in recent elections. But there is a lot we can do.

We need to start empowering the people. I don’t mean the political class but the citizens. So that when it is time for elections, you can reject that small bag of rice and cash regularly doled out to induce voters. That is economic empowerment.

Legally speaking, maybe the National Assembly can empower the electoral commission to properly monitor the internal processes of political parties. They do at present but that mechanism can be strengthened.

But I think it goes beyond the law. People must be empowered economically to be self sufficient and thereby more altruistic. Politicians too must put citizens’ interests ahead of their own in their political dealings. Citizens must be enlightened on the importance of their contributions to the democratic process.

If the president assents to the bill, the innovation becomes law, pending the time it is challenged and overturned or affirmed by the courts as unconstitutional or constitutional.

If the president refuses assent, the innovation is at an end unless the National Assembly overrides the president’s veto by passing the bill again by two-thirds majority of members of both houses of the National Assembly at a joint sitting.

Source: The Conversation