On the 5th of September, 2018, the National Consolidation Ambassadors Network (NCAN), led by its National Coordinator, Sunusi Musa, purchased the N45 million presidential expression of interest and nomination forms for President Muhammadu Buhari to contest in the forthcoming primary election of the ruling All Progressives Congress, APC. The Expression of Interest from and the Nomination Form were presented yesterday to the President by the group at the New Banquet Hall of the Presidential Villa. This move by NCAN has drawn a lot of public attention and has also raised some pertinent questions as to the legality of the purchase of the form for the President vis-à-vis the Electoral Act of 2010 as amended.
So much of the argument against the purchase has revolved around section 91(9) of the Electoral Act which provides that “no individual or other entity shall donate more than one million naira (1,000,000) to any candidate”. It has also been argued that the acceptance of the forms by the President makes the President liable to the punishment stipulated in Section 91 (10) (a) of the Act.
Section 9(10) (a) of the Act provides that “a candidate who knowingly acts in contravention of this section commits an offence and on convictions shall be liable – (a) in case of presidential election to a maximum fine of N1,000,000.00 or imprisonment of 12 months or both”.
However, a critical consideration of the provision of section 91(9) of the Electoral Act and the purchase of the forms by NCAN would reveal that there is no breach of the Electoral Act by NCAN. Hence, no electoral offence has been committed by the group and acceptance of the presidential nomination form by the president is no offence.
First and foremost, no donation was made by NCAN to the President. What section 91(9) of the Electoral Act clearly prohibits is cash donations of “more than one million naira (1,000,000) to any candidate”. NCAN did not donate N45,000,000.00 to the president. The group merely purchased a form worth N45,000,000.00 and gave same as a gift to the president. The most accurate description of the from purchased by NCAN would be to ascribe to it the status of a gift. The Electoral Act does not prohibit anyone from giving or receiving gifts that are worth more than N1,000,000.00. Rather, the Act prohibits cash donations of more than one million Naira.
Secondly, from a plethora of authorities, the President is not a “candidate” of the All Progressives Party so as to be liable to the provisions of section 91 of the Act. Who is a candidate? In the case of Enyong & Anor v. Ekpeyong & Ors (2011) LPELR-4058(CA), a candidate was defined by the Court of Appeal as “a person who has been validly nominated by his political party and whose name has been submitted to the Independent National Electoral Commission (INEC) as a candidate, accepted as such and whose name was subsequently published, pursuant to section 34 of the Electoral Act, 2010 as amended and other relevant sections in that regard…”. The Court of Appeal even went further to hold that “the mere proposal by way of nomination of a person by a political party as its candidate in an election to INEC through a notification letter per se, may not amount to a valid nomination in respect of the person so nominated”.
Therefore, even after having accepted the froms from NCAN, the President is not a candidate of the All Progressives Congress, at least not yet. He has only expressed interest in and obtained the from to contest in the primary election of the All Progressives Congress in order to contest for the office of the President. The president is yet to be nominated by the All Progressives Congress. The President’s name is yet to be submitted to the Independent National Electoral Commission as the candidate of the All Progressives Congress.
By and large, NCAN has not donated money in excess of N1,000,000.00 to the President. Hence, there is no breach of the provisions of the Electoral Act. Also President Muhammadu Buhari is not yet a candidate within the provisions of the Electoral Act as to be affected by section 91(9) of the Act and therefore would not be in breach of the Electoral Act even after accept the presidential nomination form for the All Progressives Congress as a gift from NCAN.
Lawal writes from Abuja
