Section 33
Political parties changing candidatesA political party shall not be allowed to change or substitute its candidate whose name has been submitted under section 29 of this Act, except in the case of death or withdrawal by the candidate:
Provided that in the case of such withdrawal or death of a candidate, the political party affected shall, within 14 days of the occurrence of the event, hold a fresh primary election to produce and submit a fresh candidate to the Commission for the election concerned.
The provision safeguards the nominations process by ensuring that a candidate withdraws voluntarily from an election and is not substituted arbitrarily by his/her political party.
Until the 2010 amendments to the Act, the power to substitute a candidate sponsored for an election by a political party rested solely on the party upon proffering cogent and verifiable reasons to INEC. The development of the electoral law on the power of political parties to substitute candidates was based on the blatant abuse of power by political parties in withdrawing and substituting validly nominated candidates based on their own whims and caprices.
Under the 2002 Electoral Act, political parties had absolute power to change their nominated candidates by merely conveying its intention to INEC, however, a measure of control was introduced in section 34 of the 2006 Electoral Act, where political parties were mandated to give cogent and verifiable reason for substituting any candidate, thus giving the courts a leeway to intervene in the exercise of the power of substitution by political parties. In two decided cases, the reason advanced by the political parties was that "the name of the candidate was submitted without enough information” but the reasons were rejected by the court as not being cogent and verifiable.
In the 2010 Act, substitution was expressly prohibited except for death or withdrawal.
The 2022 Act retains this express prohibition but further adds that in the case of withdrawal or death of a candidate, the political party affected shall within 14 days of the occurrence of the event, hold a fresh primary election to produce and submit a fresh candidate to INEC.
Recall that Section 31 of the Act requires a candidate who is withdrawing their candidacy to deliver such notice personally to their party.
The Electoral Act remains the guiding principle on substitution of candidates.
The question was whether the time frame for substitution/withdrawal of candidate for election provided by INEC in its election timetable can supersede the time frame provided under the Electoral Act.
The Court of Appeal affirmed the trial court’s decision that PDP (1st claimant/1st respondent) was eligible to substitute/replace 2nd Defendant – Sadiq Gomna Ibrahim with the 2nd Claimant – Caleb Yakubu Dantani as the PDPs Councillorship candidate for the Dobi Ward of Gwagwalada Area Council Federal Capital Territory in the FCT Area Council election scheduled by the 1st Defendant (INEC) for 12th February 2022 after he resigned his membership of the party and withdrew his candidature after his name was submitted by the original deadline. It was stated that INEC officers had refused to acknowledge receipt of the letter on the ground that the period within which to substitute candidates under the Timetable and Schedule of Activities for 2022 Federal Capital Territory (FCT) Area Councils Election had expired.
BWACHA V. IKENYA & ORS (2011) LPELR - 8105 (SC)"It is not in dispute between the parties in this appeal that the only reason given for the substitution of the 1st Respondent with the Appellant as the candidate of the 3rd Respondent in the National Assembly Election of 21st April, 2007 in the letter Exhibit 7 sent to the 2nd Respondent, INEC, is that the name of 1st Respondent was submitted without enough information. This particular reason given for the substitution of candidate by the 3rd Respondent in a letter sent to the 2nd Respondent had come before this Court for determination in the case of Ehinlawo v. Oke (2008) 16 N.W.L.R. (Pt.1113) 357 at 425 where Onnoghen JSC said- "Coming now to the reason given for the substitution which is stated to be without enough information, I agree with the trial Court and the learned senior Counsel for the Appellant that the said reason, if it may be so considered/regarded, amounts to no reason at all, neither is it cogent and verifiable, as satisfactorily required.”
UZODINMA V. IZUNASO (NO. 2) (2011) 17 NWLR (PT. 1275) 60 PARAS F-GBy virtue of Section 33 of the Electoral Act, 2010, a political party no longer has power to substitute a candidate except in the case of death or withdrawal by the candidate.
