Section 42 of the Electoral Act, 2022 and the lurking ghost of unlawful exclusion- A critique

Abstract

This paper examined the question of unlawful exclusion under the current Nigerian electoral law. Unlike the repealed Electoral Act, 2010 (as amended), the nascent Electoral Act 2022, does not recognise unlawful exclusion as a ground for election petition. This paradigm shift sought to address the erstwhile widespread problem of unlawful exclusion under the old legal order, which, if established, led to invalidation of elections and ordering of a repeat election. Using the doctrinal research method, this paper critically analysed the newly introduced safeguards against unlawful exclusion as provided under section 42 of the Electoral Act, 2022 which require political parties to take preemptive steps to avoid unlawful exclusion of their logos or symbols on the ballot paper used in an election. While these novel procedures in the textual provisions were acknowledged as forward looking, nevertheless, the paper identified that the safeguards are not full proof as there are inelegantly drafted clauses in section 42 of the Electoral Act, 2022 that lend themselves to ambiguities or mischief. Furthermore, the paper identified non-provision for what should happen when there is unlawful exclusion of a political party even after it had inspected and approved its identity in the sample relevant documents used in an election as a major lacuna that could lead to grave consequences in an election cycle. In order to finally rest the ghost of unlawful exclusion, far reaching recommendations were made including creating specific offences relating to unlawful exclusion and giving INEC the power to countermand an election where there is a proven case of unlawful exclusion since an injury to a right cannot go without remedy.