Jurisprudential and Political Polemics of Political Party De-registration By Nkannebe Raymond Esq.

INTRODUCTION

On Thursday 6^th February, 2020, the Independent National Electoral Commission (INEC) at a press briefing officially deregistered Seventy-Four (74) political parties out of the then existing 91 political parties in the Country. The commission said it was acting in line with the powers donated to it by the constitution of the Federal Republic of Nigeria “the Constitution” which gave it the powers to deregister a political party for a number of reasons which would be highlighted in the course of this article.

This action expectedly has thrown up a sea of commentary from the promoters of the de-registered political parties, election management experts, legal practitioners, civil society organizations as well as sundry stakeholders. While some have hailed the move, others have questioned the timing. While some commentators have out rightly described the decision as ultra vires INEC’s powers, others have picked holes in the formula relied upon by the commission to give only 18 political parties a clean bill of health. This group describe the criteria as being against the principles of justice, equity and fair play and comprise majorly stakeholders with sympathy for the recently formed political parties.

Against the above backdrop, I shall in this intervention aggregate the differing perspectives that have trailed INEC’s decision with the hope that by the time its labour is done, the reader will have an inside-out understanding of the issues that have characterised the politics of registration and de-registration of political parties in Nigeria both in the past, and now. Particular emphasis will be laid on the provision of the Fourth Alteration Act (No.9) vis-a-vis INEC’s powers to de-register political parties, and the limits, if any, of those powers. Also, a tour of the judicial and legislative history of the politics of political party registration would also be  embarked upon to aid a fuller appreciation of the subject. But first, an appraisal of the problem.

STATEMENT OF THE PROBLEM

A total of 91 political parties contested the 2019 general elections in Nigeria, with 73 out of that number fielding candidates for the presidential election. However, post election analysis of the results of the election showed that only two, of the 91 political parties polled approximately 97% of all the votes cast at the election, while the other political parties amongst themselves shared the remaining 3% votes thus raising the debate amongst stakeholders in the election management circle, whither the necessity of proliferating political parties that only serve to increase the cost of electioneering in Nigeria?

Beyond the issue of cost, there is also the problem of a bloated ballot paper which election monitoring groups in their several reports after the election, indicated as one of the problems voters had to contend with, especially in rural areas. These states of affairs have understandably triggered the criticisms of critical stakeholders so much that not a few called for an outright pruning of the number of political parties by any means possible so as to sanitize the democratic and electoral process.

On the flipside of the debate however, are those who have argued that the ultimate goal of political parties in any democracy is not to win an election and as such, political parties ought not to be adjudged by their fortunes at periodic elections. Those in this side of the debate rely on section 40 of the 1999 Constitution which guarantees the right to freedom of association within the allowable parameters, to make a case for why mushroom political parties should be allowed to function as equal partners in the democratic process with the so-called major political parties. It is also their contention that the powers of INEC warehoused in sections 78(7) (i) & (ii) of the Electoral Act, 2010 which gives the commission the powers to deregister a political party, are inconsistent with the provisions of section 40 of the 1999 Constitution, and are thus idle to the degree of such inconsistency.

However, it is my submission that with the recent amendment of the Constitution, qua 4^th Alteration Act, No. 9 of 2017, the legal framework upon which these mushroom political parties had thrived might have just been altered on the letters of the law, save in the unlikely determination of a Court, to the contrary.

A LEGISLATIVE CUM JUDICIAL BACKGROUND

In response to the proliferation of political parties which metamorphosed into 60 in 2011, the then National Assembly in furtherance of section 228(d) of the Constitution amended the Electoral Act 2010 by enacting a new section 78(7) which empowered the commission to deregister any political party which failed to win a seat in the National or State Assembly election, or which breached any of the requirements of its registration. The law provided as follows:

78(7) The Commission shall have power to de-register political parties on the following grounds-

1. Breach of any of the requirements for registration; and
2. For failure to win a seat in the National or State Assembly election.

Following this legislation, a total of 28 political parties were de-registered by the professor Attahiru Jega-led INEC. In consequence of this, the National Conscience Party (NCP) took out an originating summons at the Federal High Court Lagos, contending amongst others that the act of the National Assembly was ultra vires. It also sought declaratory and injunctive reliefs. In a considered judgement, the trial Judge dismissed the suit and upheld INEC’s power to de-register political parties as per the provisions of section 78(7) of the Act. Upon further appeal to the Court of Appeal however, the latter set aside the decision of the trial Court and held section 78(7) of the Electoral Act to be inconsistent with the provisions of section 40 of the Constitution.

In the leading judgement delivered by Per. IYIZOBA J.C.A (as she then was, now Rtd.) the Court held:

“All the above provisions of the Constitution must be read together in order to ascertain their true import. Most importantly, the Constitution is the fons et origo of our legal system. It is supreme and any law emanating from any source in Nigeria must derive its validity from the Constitution. The legislative power of the National Assembly cannot be exercised inconsistently with the provisions of the Constitution. Where that happens, such law is invalid to the extent of the inconsistency. On whether section 78(9)(ii) of the Electoral Act is inconsistent with section 40 of the Constitution; section 40 of the Constitution allows every person the right to assemble and associate with any other person in order to inter alia form or belong to any political party for the protection of his interest. But the provision to the section exempts the action of INEC in respect of political associations which are not accorded recognition. As far as recognition, non recognition or de-registration of political parties for reasons allowed by the Constitution or laws permitted under the Constitution are concerned, there can be no inconsistency with section 40 of the Constitution because of its provisio. But section 78(7)(ii) of the Electoral Act deals with the power of INEC to de-register parties for failure to win presidential or Governorship election or seat in the National or State Assembly. If such power is not given directly or indirectly by any section of the Constitution, then that provision of the Electoral Act is unconstitutional, null and void”

2.4.   The above position of the Court of Appeal have so far remained the extant judicial interpretation of section 78(7) of the Electoral  Act, 2010 vis-a-vis powers of the electoral commission to de-register a political party, but that may no longer be the position of the law today.

DAWN OF THE 4^TH ALTERATION ACT

3.1.   As political parties increased in their numbers between 2011 and 2015, the National Assembly was further constrained to solve the problem once and for all. Apparently guided by the position of the Court of Appeal in NCP v. National Assembly FRN (supra), it amended section 225 of the Constitution and inserted a new section 225(A) which gave INEC the powers to de-register political parties. The Explanatory Memorandum of the Act puts its objectives beyond peradventure. It reads: “This Act alters the provisions of the Constitution of the Federal Republic of Nigeria, 1999 to provide the Independent National Electoral Commission with sufficient time to conduct bye-election and provide for de-registration of political parties”

[Italics and underlining are mine]

3.2    The new section 225A provides as follows:

“The Independent National Electoral Commission shall have    power to de-register a political party for-

• Breach of any of the requirements for registration;
• Failure to win at least 25% of votes cast in-

1. One State of the Federation in a Presidential election or;
2. One Local Government of the state in a governorship election.

• Failure to win at least-

1. One ward in the Chairmanship election;
2. One seat in the National or State House of Assembly election or;

• One seat in the Councillorship election.”.

The above amendment to the Constitution it would appear, has         automatically clothed   INEC with the full powers to de-register a      political party that fail to meet up with any of the conditions        stipulated in the subsections to section 225A in the 4^th Alteration      Act with the       effect that the extant judicial position to the de-registration of       political      parties may no longer hold in the light of      the change in the       legal framework on which that was erected.

ANY IMPLICATIONS OF THE 4^TH ALTERATION ACT TO POLITICAL         PARTIES?

At a press briefing on the 6^th of August, 2019 while reacting to questions from the press on why it has not de-registered political parties in line with the 4^th Alteration Act, the chairman of the commission, Prof. Mahmoud Yakubu  said that the commission was awaiting the conclusion of all the election disputes that came at the back of the 2019 general election before it could take any such step which would be on the back of a holistic review of all the results of the         election to ascertain how the numerous political parties performed.

The conclusion of that exercise must have conduced to the recent de-registration of the 74 political parties by the commission last week. As pointed out in the opening paragraphs of this paper, the reaction of the de-registered political parties to the development has been one of condemnation. For example the Acting National Chairman of one of the affected parties, comrade Mark Adebayo in an interview with a National Newspaper described INEC’s actions as undemocratic, unfair and unjust calculated to favour the elite political clique in the country who belong to the leading political parties.

Apparently in a bid to pre-empt the commission from taking steps in furtherance of the 4^th Alteration Act, a coalition of political parties under the aegis of Inter-party Advisory Committee (IPAC) had filed a suit at a Federal High Court Abuja to amongst other things, restrain the commission from de-registering political parties pending the determination of the suit. A motion for interlocutory injunction filed to that effect is due for ruling on the 17^th of February, 2020. How a success of that motion would fare in the light of INEC’s actions last week would certainly be another jurisprudential logjam that may render INEC’s actions null and void.

There are also what I consider to be legitimate concerns by some of the de-registered political parties who argue that having just come on stream a year or two, before the last general elections, ought not to be subjected to equal constitutional test with already existing political parties who had been up and running. This concern may however only be appealing to emotions as the constitution is mute on the point whether there should be different strokes for different folks in the quarantining process by the commission. That however, may be veritable issue to be submitted for interpretation by the Courts.

 A HASTY MOVE?

There is also the concern elsewhere that elections into the 774 local government areas of the country and 8, 809 electoral wards having not been concluded, it was rather too early for the commission to have embarked on the exercise. Learned Senior Advocate and rights activist, Femi Falana is a notable promoter of this school of thought. “Local Government elections have not been held in 13 states. Since some of the political parties may still win Local Government elections, the law is not ripe for implementation”, he told the press even though he acknowledged the commission’s power to de-register political parties qua 4^th Alteration Act. It is my submission that these reservations should be taken into account barring any judicial resolution, in any subsequent amendment of the Constitution to avoid the crisis of ambiguity that have dogged section 225A of the Constitution as amended by the 4^th Alteration Act.

JUDICIARY TO THE RESCUE?

Not a few of the de-registered political parties have threatened to drag the commission to Court over their de-registration. The National Chairman of the Alliance for New Nigeria (ANN), Emmanuel Dania and those of Kowa Party, Mark Adebayo have also intimated as much to the press, while several others say they are still in consultation. Barring when all of that is done, the judiciary would be expected to weigh in heavily on the constitutionality vel non of INEC’s action.

In INEC & Anor v. MUSA & Ors [2003] 3 NWLR (PT 806) 72 (SC); a case that borders however on the extent of INEC’s regulatory power over political parties, the Supreme Court upheld INEC’s powers to regulate political parties to the extent that it does not overreach the conditions set down in the Constitution. There, the commission while relying on the powers given to it by the National Assembly to regulate political parties, introduced certain regulations which were inconsistent with those laid down in the Constitution, thereby earning it the rebuke of the apex Court. But that is how far the court went with that as it recognised the regulatory powers of the commission. Said the court,

“there is no doubt that the Independent National Electoral         Commission has power to register political parties and the       National Assembly can legislate in regard to the exercise of those powers. Where, however, in the exercise of the     legislative powers to make laws to provide for the registration,     monitoring and regulation of political parties, the National     Assembly purports to decree conditions of eligibility of an        association to function as apolitical party, it would have acted outside its legislative authority as stated in the Constitution.    Similarly, INEC’s acting under such law to prescribe conditions for    eligibility would have acted inconsistently with the Constitution”.

The point being made is that the decision in INEC & Anor v. Musa & Ors (supra), may weigh in the favour of the Commission to the extent that the powers on which it relied upon to de-registered the 74 affected political parties were Constitutionally sanctioned, thereby taking it outside the realm of what the Court of Appeal held in NCP V. INEC (supra) as de-registration is also an incidence of regulation. Any other distinguishing considerations such as whether newly formed political parties ought to be put in the same basket with their older counterparts while applying the litmus test of section 225A of the Constitution would however abide a judicial pronouncement one way or another. But in the mean time, the language of the Constitution seem to be pretty such that the Courts would be most inclined to apply the literal rule of interpretation instead of embarking on considerations that border on sentiments and emotions.

CONCLUSION

Political parties are a necessity in any democracy as they constitute the archetypal political vehicle. But since politics is a serious business, necessity demands that our political parties should not just exists for the sake of it, but must be seen to play an active role in the democratic process. While it may be true that political parties must not always win elections, it is most ridiculous that some political parties exist only in the offices of their executive members who sometimes substitute their personal interest for the party’s overall interest. It is my humble opinion that Nigeria’s democracy have come of age to tolerate such shadow or mushroom political parties as they are often called.

All over the world, coalition of political forces is known to be veritable political strategy to win power. A politically-conscious political class would have considered such steps which instructively brought the current leadership of the APC into power in 2015. INEC deserves commendation for having acted in good time as it prepares for off-cycle gubernatorial elections in Edo and Ondo states as well as the general election in 2023.

But that is not all. As Femi Falana, SAN advised, “INEC must go the whole hog by complying with Section 222 of the constitution which states that political parties that fail to render accounts of their detailed annual statement and analysis of their sources of funds and other assets with a similar statement of expenditure. INEC must apply the law with equal force to the remaining 18 political part”.

Ultimately, the strength of a democracy is not in the number of political parties it floats, but in the quality of governance it is able to deliver. Fewer political parties would provide the citizenry the opportunity to assess their manifestoes and ideologies at periodic election, so as to be able to make more informed choices at the polls. Big democracies such as America, Britain, France, Canada, Australia just to name a few, are 2-3 party states. Nigeria, as the largest democracy in Africa can aspire to same.