“INEC should have rejected Buhari’s form”

The Nigerian Constitution and the Electoral Act clearly stipulated the minimum qualifications for seeking elective public office. 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 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, or 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 powerless to do so in a clear case of failure to provide documents of claimed academic qualification?

And what about, for instance, a white man from America who proceeded to submit a form to run for President, swearing his citizenship and claiming that he is nominated by a registered political party but sans any documentary evidence of citizenship of Nigeria? Should INEC accept such form, display his name and tell those asserting that the candidate is an alien to go to court? Nigerians will never kowtow to that even if such white man has, with some white magic, finessed his way through the nomination process of such political party. I deliberately avoided using a black man as an example here because some people might counter that his evident negritude is proof enough of his Nigerian nationality; and therefore anybody that asserts otherwise bears the burden of going to court. Absurd.

And what about age? Should INEC accept a toddler who somehow got nominated by a political party by dint of some mystic interventions. What if the toddler crawled into INEC’s office or arrived by way of a baby cart pushed by his mother or the chairman of his political party? Some will 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 determine on its own, on the spot. Those provisions apply only to the latent (dis)qualifications, such as conviction for offenses, which are expected to be concealed 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 an issue of material fact 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. Now, possessing the minimum educational qualification is a patent requirement which evidence or proof a candidate must provide before his nomination form is accepted by INEC. It is not enough to just assert or aver, as Buhari did, that you possess 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.

Where such proof 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 whence 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.

It doesn’t make sense and it does not 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 un-documented nomination.

Finally, as I was writing this piece, Nigerian army released statement disclaiming Buhari’s assertions that the certificate at issue (WASC) is with army records. The army also stated that, though Buhari had claimed he had WASC at his commission in 1961, he never provided a copy, nor was the army mindful to verify the claim at the time. Now this: if Buhari could not provide such document then, can he provide it now? And why is he bent on always reverting to the army when he can very easily obtain a replacement or official verification from WAEC? That’s what every Nigerian who claims WASC does. Therefore, Buhari, a man aspiring to rule us by example should just do the same. It’s not too much to ask. Or is it?

Aloy Ejimakor.
a lawyer wrote in from alloylaw@yahoo.com
08032651660 (Texts only)