THE PRESIDENTIAL candidate of the All Progressives Congress, APC, Asiwaju Bola Ahmed Tinubu may have run into another turbulent water of the 2022 Electoral Act.
He is not alone; same goes for the Presidential Candidate of Labour Party, Mr. Peter Obi.
This has to do with the nomination of their running mates.
While Tinubu submitted the names of Ibrahim Kabri Masari, from Katsina, Obi submitted the name of his campaign Director General, Doyin Okupe.
There is no issue in this, but media have been filled with news that they would be changed during the substitution window.
The Telescope Nigeria sought opinions of lawyers on sections 31 and 32 of the 2022 Electoral Law and as laws may be subjected to various interpretation until it gets to the court, Tinubu and Obi may be stuck to their vice presidential nominees.
Mr. Pius Danba, Esq told The Telescope Nigeria that “Tinubu is reported to have nominated one Masari as his running mate while Obi picked Okupe. These nominations are required by the Constitution for both Tinubu and Obi to be qualified for the election.
“However, a running mate is not a candidate. He is a spare tyre. He does not enjoy independent rights. He is tied to the Presidential candidate. He wins if his presidential candidate wins. He loose if his presidential candidate loose. He withdraws if his presidential candidate withdraws. He cannot stand alone. In like sum, he cannot withdraw alone.
“The provision of section 31 and 33 of Electoral Act 2022 only permit withdrawal by candidate. It doesn’t provide for withdrawal for running mate. Thus, Masari and Okupe do not have rights to withdraw so that their political parties can nominate other suitable running mates. They have no such rights. Only presidential candidate has right to withdraw.
“The quagmire facing Tinubu and Obi is that running mates are not even nominated by political party. They are nominated by the presidential candidate. Such nomination of running mate by presidential candidate must be done at (the) time he is submitting his details to INEC.
“INEC Form EC13A paragraph 5 provides that “I hereby nominate … as my Associate for the Office of Vice President.” This must be done at the time the Presidential candidate is submitting his own forms. There is no law that gives the Presidential candidate right to choose someone else later. He also has no right to replace someone he has already nominated when the time for nomination has passed.
“What then could be the implication where a running mate withdraws regardless of the law? Two things may happen:
One, the withdrawal of a running mate will mean that the Presidential candidate has no VP and thus disqualified from standing election in line with section 142(1) of the Constitution. If this happens they both will not be candidates at 2023 elections. This is most probable.
Two, the running mate may withdraw and INEC will insist he remains running mate just like Obi Ezekwesili withdrew from 2019 Presidential Election after close of withdrawal timeline but INEC insisted she remains a candidate. In this case, Masari and Okupe will remain irrespective of their subsequent withdrawal and INEC will not accept any new running mate to replace them.
“Now, whatever happens, the fate of Tinubu and Obi is tied to their current choice of running mates. They will sail or sink together as there is no legal provision for withdrawal of running mate”.
Femi Aborisade, Esq. opinion is slightly different as he sees the Vice Presidential nominees as also candidates and believe they could be substituted.
“By virtue of section 33 of the Electoral Act, a “political party” can only be allowed to change or substitute its candidate whose name has been submitted pursuant to section 31, only in the occurrence of either of two events, namely death or withdrawal by the candidate.
“A strict interpretation of section 33 of the Act forecloses change of any candidate by the political party. It is not within the power of the Presidential candidate or the Governorship candidate to change candidacy under any circumstances, by virtue, also, of section 221 of the Constitution, which provides that only registered political parties can sponsor candidates for elections.
“A presidential or governorship candidate remains a candidate just as a vice presidential candidate or a deputy governorship candidate remains a “candidate” until they succeed in an election. Hence, Section 142(1) of the Constitution, for example provides that “… a candidate for an election to the office of President shall not be deemed to be validly nominated unless he nominates another candidate as his associate from the same political party for his running for the office of President, who is to occupy the office of Vice-President and “that candidate shall be deemed to have been duly elected to the office of Vice-President if the candidate for an election to the office of President who nominated him as such associate is duly elected as President” in accordance with the provisions aforesaid.”
Thus, the fact that the Act makes reference to candidate and not “vice president” or “deputy governor” is of no moment. It goes to no issue.
“We may then deduce that reference to “office of the vice President” or “office of the Deputy Governor” arises only after electoral success. All contestants remain candidates. Offices are created, which they occupy, only after a successful contestation”.