Dr. Muiz Adeyemi Banire SAN
Direct Primaries And Legislative Misadventure -Dr.Muiz Banire SAN
In several of my interventions on electoral matters, the most recent being precisely a week ago, I have had cause to condemn the penchant of the National Assembly to legislate on issues that do not concern it.
The latest misadventure is on the electronic transmission and the issue of direct primaries of political parties. To a number of Nigerians, the reversal of the stance of the Senate on the issue of electronic transmission is honourable and worthy of commendation. I do not completely share this disposition as I strongly believe and I am still convinced that the National Assembly has no business at all legislating on the subject.
It is a dangerous proposition to allow the National Assembly escape with the aberration; a dangerous precedent likely to haunt us in the future. It is in the same vein that I loudly again condemn the attempt to streamline the modes of conducting political parties’ primaries. It is my candid view that it is bad enough that the process of determining the candidates of political parties is statutorily regulated. Now it is worse that the Assembly is attempting to strangulate, or probably suffocate, the political parties through the imposition of direct primaries. The essence of this, according to the proponents, is to ensure internal democracy in the nomination of candidates of political parties.
Internal democracy is a concept on which I have made several interventions and is ever-fascinating to me. Internal democracy is a process, which allows the will of the majority of the members of a political party to triumph, not necessarily in the nomination aspect where it is most feasible but in all decision-making processes of a political party. It is a universal practice and, therefore, not peculiar to Nigeria as a country.
Conventionally, it has always been the practice in Nigeria, just as elsewhere, that political parties reserve the right to stipulate the mode of nominating their candidates. However, in the recent past, until now, with the invasion of godfathers and various cabals in political parties, internal democracy has been displaced through the nefarious activities of these few oppressors who either use their influence, power or money to thwart the general disposition of the people, the lawmakers became concerned. The apex Court has had reasons to pronounce on the need to curb the dictatorship of individuals in political parties when it pronounced in C.P.C. v. Ombugadu  18 NWLR (Part 1385) 66 at 129 to 130, paras. F-E where Ngwuta, JSC held thus: “An army is greater than the numerical strength of its soldiers. In the same vein, a political party is greater than the numerical strength of its membership just like a country, for instance, Nigeria, is greater than the totality of its citizens. It follows that in the case of a political party, such as the first appellant herein, the interest of an individual member or a group of members or a group of members within the party, irrespective of the place of such member or a group in the hierarchy of the party, must yield place to the interest of the party. It is the greed, borne of inordinate ambition to own, control and manipulate their own political parties by individuals and groups therein and the expected reaction by other party members, that result to the internal wrangling and want of internal democracy that constitute the bane of political parties in Nigeria…It is apparent that a few powerful elements therein hijack the parties and arrogated to themselves right to sell elective and appointive positions to the party member who can afford same…There is a popular saying that politics is a dirty game. I do not share this view. It is the players who are dirty and they inflict their filth on their members and, by implication, on the society. Politicians must learn to play the game of politics in strict compliance with its rules of organised society.” [Emphasis ours].
This inevitably led to legislative intervention by regulating the internal democratic process of political parties. The Electoral Act consequently provides for the modes of nomination of candidates by providing the options of direct and indirect primaries, with the consensus option as additional alternative. This provision is now incorporated into the constitutions of all the political parties. Interestingly, it is one of the most litigated provisions in the Electoral Act today. Thus, the extant position of the law is that all the political parties must adopt any of the options, failing which there will be sanction. The beauty of this position is that it allows flexibility and choice for the political parties. In any noticeable area of non-compliance, the courts have never shied away from penalizing the political party involved. Most political parties have been victims of such decisions in this regard. Of immediate recall are instances of Zamfara, Bayelsa and Rivers states, where APC was made to bite the dust for its indiscretion. The point must be promptly made, however, that prior to this statutory intervention, the courts hitherto have recognized the exclusive right of political parties to adopt any mode of primaries convenient to it in the choice of its candidates and were ever reluctant to intervene in nomination matters. The relevance of this point will unveil as we progress. Now for the purpose of clear understanding of the folly of the National Assembly in mandating direct primary only, it is essential I make some conceptual clarifications of the terms “direct” and “indirect” primaries.
Direct primary is a nomination process that involves the direct exercise of franchise by all the eligible members of a political party in a single transaction of nominating a candidate for an election. This slightly contrasts with indirect primary, which is double-layered. It involves, first, the direct voting by all the members of the party to elect delegates who will constitute the electoral college for the purpose of nominating the party’s candidates. The delegates, in whom the party members reposed confidence of proper choice of candidates, will then directly exercise franchise in determining the party’s candidates. From the above description, it is obvious that in both cases all the party’s members have a say in the nomination process. In the light of the above, is it now wise to impose direct primaries on political parties as the only option?
The argument of the promoters is that it will enhance the democratization of the nomination process, eliminate godfatherism and the notorious activities of political cabals. The end result of this, according to them, is prevention of imposition of candidates by a powerful clique in the political parties. The question is, how does indirect primary impair or negate any of the foregoing objectives? No way, in my view. Then what is the basis of the discrimination against indirect primaries?
To my mind, the legislators must have goofed in their thoughts as a result of their improper appreciation of the two modes. If the objective is to forestall hijack of the nomination process, indirect primary is much more relevant and difficult to manipulate. As indicated earlier, it is a two-layered process. One would have thought, therefore, that, if there is any need for preference, indirect primary would have been it. The only challenge with indirect primary is where the election of the delegates is fraught with manipulations, which equally could apply to direct primaries, otherwise, it is much more tasking than direct. Even in point of financial compromise, it is as much expensive, if not more, under indirect than direct, as it requires double massive expenditure to mobilise all members of the party to vote in direct primary. The fear of the legislators is misdirected as the issues that require attention for the enhancement of credible nomination are outside the range of the concepts. Factors that facilitate the manipulation of the nomination process range from lack of credible membership register, leading to the manipulation of the participants; lack of display of the register, if any, prior to the voting process to enable objections and verifications; absence of effective security coverage precipitating rigging, means of identifying true members of the party eligible to vote through credible accreditation; availability of proper venues; existence of neutral officials to conduct and superintend the process; and effective, credible and efficient monitoring of the process by officials of the Independent National Electoral Commission. Without a credible membership register, just as in general elections, the purported election or nomination will be a ruse. These are some of the fundamental essentials to credible nomination process. This, in my view, is what should bother the legislators rather than the mode.
The Yoruba would say, “won fi ete sile, won n pa lapa lapa“, which literally translates to mean ‘one leaves leprosy but is treating eczema’. Hence, the proposal is not only unintelligible, it is neither pragmatic nor auspicious. With the proposal by the National Assembly, if it sails through, political parties will lose such flexibility in the choice of modes of primaries. The proprietary of this or otherwise constitutes another fulcrum of this discussion.
Political parties are generally like social clubs or associations in which members give unto themselves to the constitution that regulates their affairs. Such a constitution is presumed to be the aggregation of opinions of members on how things are to be done. This is inclusive of the mode of determining their candidates. The implication of this is that a dissatisfied member with the stipulated process is at liberty to opt out into another platform that meets his desire.
In Nigeria, however, due to our peculiarity, virtually all aspects of the life of a political party are now being regulated. This certainly is not unconnected with the greed and avarice of the few political godfathers existing in the various political parties. Right from the Constitution, through the Electoral Act, the Party constitutions, to the electoral guidelines and regulations, political parties in Nigeria are statutorily regulated. This forms part of my conviction in stating that what obtains in Nigeria are political platforms which are special purpose vehicles or conspiracy for gaining access to power and not political parties properly so-called. They lack any political ideology or clear philosophy which explains the frequent defections by politicians. It is, therefore, no news that the remaining vestige of freedom is being further suffocated by this attempt to legislate the compulsory adoption of direct primaries for the nomination of their candidates. Thus, this attempt is another legislative incursion that is unwarranted. I honestly believe that the modes of determining the candidates of political parties should not be further regulated beyond what it is presently obtainable which in itself is an aberration. The flexibility needs to be retained to enable political parties operate within their capacities.
My view, therefore, is that rather than compelling political parties to adopt direct primaries only, it is better to tighten up the loose ends of the modes that are susceptible to manipulation. In other words, what will be profitable to intervene in are the guarantee of a credible membership register, identification of members through integrity-based accreditation process, display and filtration of membership register before each primary, efficient monitoring by INEC officials, tight security measures at venues of primaries, neutral arbiters for the conduct of the primaries. These are the fundamental areas that can ensure free and fair nomination process.
My prayer, therefore, to our legislators is to have a rethink by allowing the present status quo of optional modes to remain while tightening those loose ends that enable manipulation of nomination process. Finally, it may not be out of place to also criminalize the nefarious activities of the political godfathers in the nomination process as the fact remains that without internal democracy, there cannot be democracy.
Enough, therefore, of this legislative misadventure by the National Assembly. There are limitless other areas demanding legislative intervention than this.