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Nigeria: Court Annuls Election Law Provision Banning Tribunals from Making Declaratory Judgment

(July 6, 2011) On June 30, 2011, the Federal High Court in Lagos delivered its judgment on a case in which the Action Congress of Nigeria (ACN), a political party, challenged the legality of three provisions of the Electoral Act of 2010, namely, sections 87(8), 140(2), and 141. (Davidson Iriekpen, Election: Tribunal Can Declare Winner, Says Court, THIS DAY (July 1, 2011).)

The Court annulled section 140(2), a provision barring election tribunals or courts from declaring the runner-up the winner of an election upon finding deficiencies in the qualifications to stand for election of the person with the most votes and requiring instead that fresh elections be held. (See Electoral (Amendment) Act 2010, Act. No. 10 of Dec. 29, 2010, 97:92 FEDERAL REPUBLIC OF NIGERIA OFFICIAL GAZETTE A1217-A1230 (Dec. 31, 2010).) The judge noted that this provision is invalid because it violates a constitutional clause that confers on courts the power to make declaratory judgments. (Iriekpen, supra.)

The Court, however, did not find merit in the challenge against the ban on political appointees acting as delegates in the party nomination process. The provision in question specifically states: “[a] political appointee at any level shall not be an automatic voting delegate at the convention or congress of any political party for the purpose of nominations of candidates for any election, except where such political appointee is also an officer of the political party.” (Electoral (Amendment) Act 2010, § 87(8), supra.)

ACN had contended that this provision unduly disenfranchises political appointees and contravenes the constitutional clause guaranteeing the right to association. (Tribunal Can Declare Poll Winner, Court Rules, THE TIMES OF NIGERIA (July 1, 2011).) The Court disagreed. The judge noted that all this provision does is provide a level playing field for all contestants vying for nomination as representatives of their respective parties, and therefore it is perfectly legal. (Iriekpen, supra.)

The Court also rejected a challenge to section 141 of the Act, a provision that bans courts or election tribunals from certifying a candidate who has not participated fully in an election as a winner of the election. (Id.)