The Legal Quandary of Parallel Party Primaries in Nigeria

Man holding a flag of Nigeria by Emmanuel Ikwuegbu.

Editor’s Note: an earlier version of this article was published on BarristerNG.

The great French philosopher Albert Camus compared the absurd with the situation of Sisyphus, a figure of Greek mythology condemned to eternally repeat the same meaningless task of pushing a boulder up a mountain, only to see it roll down again just as it nears the top.

In Camus’ final analysis, “The struggle itself towards the heights is enough to fill a man’s heart. One must imagine Sisyphus happy.” 

Primary elections stand as a crucial pillar of the political process, allowing voters to express their preferences for their party’s candidates in upcoming general elections. These primaries can vary from open, including the general public, to closed, restricted to party members.

In Nigeria, closed primaries dominate the landscape. However, internal divisions within political parties frequently lead to fragmentation, resulting in the conduct of parallel primary elections by different party factions. Consequently, multiple candidates emerge, each staunchly asserting their right to the party’s nomination.

Most recently, this scenario unfolded in Edo State concerning the impending Governorship election. Within the All Progressives Congress (APC), three contenders—Monday Okphebholo, Dennis Idahosa, and Anamero Dekeri—emerged from parallel party primaries. The national leadership of the party later deemed the exercise that propelled Dennis Idahosa inconclusive and conducted another election, ultimately declaring Monday Okphebholo as the victor.

Similarly, within the People’s Democratic Party (PDP), the deputy governor, Phillip Shaibu, and prominent corporate lawyer, Asue Ighodalo, both stake their claims to the party’s candidacy. In the Labour Party, Olumide Akpata surfaced from the Julius Abure-led faction, while Lamidi Apapa asserts the nomination of Anderson Uwadiae Asemota to the Independent National Electoral Commission (INEC).

Ideally, the law is the prophecies of what the courts will do in fact, and nothing more pretentious. In what appears to be settled law, the Nigerian Supreme Court have long held that it is only the primary election conducted by a party’s National Working Committee, or a body appointed by it, that is the valid and authentic primary. The National Working Committee is the executive committee of the political parties in Nigeria. The National Working Committee has the responsibility for the day-to-day governance of the party as well as oversight of the state chapters of the parties. Where a primary election is found to have been conducted by the State chapter of a political party or any other body, same will be deemed illegal, invalid, null, void and therefore an exercise conducted without any semblance of legal justification.

This position was recently affirmed in the SHIDDI v. JIMKUTA & ORS and OGAH v. EMENIKE & ORS decisions. Furthermore, the Court of Appeal has upheld the position that merely monitoring the primary election of a political party by INEC does not confer legitimacy on such primary election which was not approved by the National Working Committee of the party. This was confirmed by the Supreme Court in SANI v. APC & ORS (2023) LPELR-60002 (SC).

Circling back to Edo State, baring the vagaries of current electoral jurisprudential uncertainty, it is safe to say that the authentic party primary is the one conducted by the National Working Committee, or the electoral committee appointed by it, of the respective parties.

In the PDP, things are a lot more simple. From indications, Asue Ighodalo emerged from the primary election conducted by the PDP’s National Working Committee. In the Labour Party, the leadership tussles between Lamidi Apapa and the ‘Obidient’ backed Julius Abure is unlikely to abate soon. The Obidient movement is an amorphous political reform group rising from the ashes of the EndSars protests, made up mostly of young people, which propelled the candidacy of Mr Peter Obi to 3rd place at the 2023 presidential election. Though as at today, the Abure-led National Working Committee which produced Olumide Akpata is recognized by INEC.

As regards the APC, the matter is not so straightforward. The party’s National Working Committee had originally appointed an electoral committee led by Governor Hope Uzodinma of Imo State to carry out the party’s Governorship primary election for Edo State. The committee purportedly held an election in which Dennis Idahosa emerged as the party’s flagbearer. However, in a surprise twist, the party’s National Working Committee subsequently announced the process as inconclusive. In a second primary election, a different candidate Senator Monday Okpebholo was declared the winner of the party’s governorship primary election. I am sceptical if such volte-face can withstand legal scrutiny.

“The dilemma of parallel party primaries in Nigeria significantly affects its fragile democratic and political processes.”

Previously, political parties were masters of their own destinies. However, section 84 (14) of the Electoral Act 2022 has now afforded the court a narrow jurisdiction to pry into the internal affairs of a party where it has acted arbitrarily in the nomination of candidate for an election. As demonstrated in UBA v. MOGHALU & ORS, while the actual choice of candidate is within the domestic affairs of the party, which is not justiciable, the party must adhere strictly to the provisions of the Electoral Act, and its own constitution and guidelines in carrying out the exercise.

In this instance, it remains to be seen if the party’s national leadership can declare as inconclusive a primary election by a duly appointed electoral committee after results have already been announced. Was the matter not already a fait accompli? Subject to the provisions of the APC constitution, can an election from which results have already been announced be declared inconclusive? Has the APC not shot itself in the foot by declaring the election inconclusive rather than an outright cancellation? I believe these are arguable legal issues. Of course, the devil is in the detail. 

It is also noteworthy that the Supreme Court has held that an aspirant must first exhaust the internal dispute resolution mechanisms of his party before he or she can exercise a right of action over dispute arising from party primary elections. It remains to be seen how to marry that with the mandatory 14 day limitation period to file pre-election matters as provided under Section 285 (9) of the Nigerian 1999 Constitution (as amended). Surely this creates a Sisyphean burden for an aspirant in a party primary.

The dilemma of parallel party primaries in Nigeria significantly affects its fragile democratic and political processes. Conflicting winners undermine the electoral process’ legitimacy, leading to a lack of trust in the system and elected representatives. Moreover, these primaries expose deep divisions within parties, weakening cohesion and governance effectiveness while exacerbating intra-party conflicts. Prolonged disputes distract parties and officials from addressing critical issues, hindering policy implementation. In extreme cases, such disputes can escalate into violence, threatening political stability. Addressing this dilemma requires strengthening internal party mechanisms, promoting transparency, and impartially resolving disputes to uphold the rule of law and restore trust in Nigeria's democratic process.

Overall, the legality of parallel party primaries in Nigeria raises complex legal issues surrounding adherence to party procedures, electoral laws, and internal party dynamics. As legal battles loom, the outcomes will hinge on meticulous examination and interpretation of relevant laws and precedents.