Still On The Courts And Internal Democracy In Nigeria By Stephen Onimisi Obajaja Esq.

[I read the brilliant and amiable Dr. Muiz Banire’s piece on this vexed but important aspect of our democracy which has implications for the sustenance of democracy in Nigeria and our national life. It got me thinking. I got excited. I then realized that two years away from the important task of writing and contributing to national discuss had not dimmed the urge to do so at all. I literally could not stay my hands. Then I saw clearly that my decision not to write even one article, grant press interview or appear on television in my years as Secretary of the premier branch was the right one to take.

Many times I hold strong and unpopular views so it would not have been right for me to allow people think that my opinions are those of the Lagos branch or that it even somehow mirrors the thinking of the NBA.  Thank God I am now done with that phase of my life! Like a free spirited chirping bird I can now think anything, say anything and write anything!! May be I can do anything even!!!

On to more weighty matters. Whatever you think of political parties and democracy in Nigeria, Dr. Banire’s piece is one that should dishearten the heart and burden the soul. Here is a perceived powerful man in Lagos political circles, a leading Legal Practitioner and Senior Advocate of Nigeria, the National Legal Adviser of the ruling All Progressives Congress (APC) and yet from his piece, you clearly see that some influential leaders of his party and many elective office holders/seekers could not give a hoot about what the law is or says even though he is available as the official clothed with power by the Constitutional authority of his party to direct and point all party members to the hallowed turf of the rule of law and adherence to internal democracy in the party.

Another bit which should worry us is the statement credited to the former Vice President of Nigeria, Alhaji Atiku Abubakar, another one who more than most knows what these matters are about. Hear him, “the lack of internal democracy in political parties is one of the reasons for the fraught relationships among parties and their elected representatives and the legislature and the executive. The loyalty of some in the legislature and the executive lies not with the party but with a godfather who sponsored them, and the godfather may even be in a rival political party. Such anomalies will reduce if internal democracy flourishes in our political parties and by extension the wider society”.

It is often said in reference to party politics, democracy and any where votes are taken that the majority will have its way whilst the minority will have its say. Even in Corporate Law Scholarship it is so – The Majority Rule and Minority Protection. But look closely, it does appear that the reverse is now the case in Nigerian politics – the minority will have its way though the majority shouts itself hoarse! Absurd!!

Now to the true tenets of internal democracy in political parties we will now turn.

I dare say that any attempt at Electoral reform must critically address the question of internal democracy within our political parties because with the pervasive lawlessness in the political parties, any party that controls the levers of power will not be able to or even have the necessary political zest to entrench democracy in our national polity as the concept of democracy is even then alien to the elected party candidates because they never had the opportunity to learn the tenets of true democracy in their political parties.

The internal politics of political parties in Nigeria has never been a tidy affair especially where it concerns the selection of candidates for the purpose of elections and occupation of political office. The selection process popularly known as primaries has always been fraught with acrimonies many of which the political parties often prove incapable of resolving. Such acrimonies oftentimes snowball into litigations as courts are called upon to decide who carries the parties’ flags at general elections.

With regards to the practice of democracy in the internal affairs of political parties, the Judiciary has now thankfully shown the way. In the past, such aggrieved contestants who went to court thought that they stood little or no chance of success because the established principle has always been that the internal affairs of a political party (including the choice of its flag bearers in an election) is its business. The principle is to the effect that courts have no business intervening in the internal affairs of political parties.

The famous case of Onuoha v. Okafor (1983) 14 NSCC 494 had become the locus classicus. This principle worked hardship on members of political parties who were very popular but did not enjoy the support of the powers that be within the parties. They could not understand why the justice system seemed to support political parties that had refused to follow its own laid down rules. This effectively led to the death of internal democracy in most political parties. There are recent cases on the point such as Dalhatu v. Turaki (2002) 15 NWLR (Pt. 843) 310 and Uzodinma v. Izunaso (No. 2) (2011) 17 NWLR (Pt. 1275) 30.

The Supreme Court unwittingly strengthened the hands of the political parties without considering the infinite capacity of so called party leaders and “godfathers” to do mischief when it held in the important case of Alhaji Balarabe Musa v. The Peoples Redemption Party that:

“such is the position of voluntary associations, a man who joins a club or society must abide by the WILL of the majority or clear out. It is not unlikely that a person may find himself holding a contrary view to those of others in the association to which he belongs and the others may be altogether wrong or unreasonable. His choice is clear. He either abides with the decision of the OTHERS or he clears out. Any society or association comprising of members who voluntarily join it, is entitled to come to any decision which they like”.

The apex court continued:

“it is in the way of voluntary associations that the MAJORITY decision is binding on all members. If a man finds himself as a member of such and it takes a decision which it does not accept, a decision which could even be contrary to good sense, he has only one course open to him – to get out. It must be said loud and clear, the party to which any person belongs is SUPREME so far as its affairs go. A member has to abide by the decision of the APPROPRIATE AUTHORITY of the party or he should get out as voluntarily as he came in … But, so far as the party is concerned, it is to have the right to DISCIPLINE its members. As a voluntary association it has the right to lay down its own decisions even when they are unreasonable. They should be obeyed, or the member in disobedience is entitled to quit. The party is in its own right SUPREME over its own affairs. This must be said loudly and clearly. UNLESS IT HAS VIOLATED ITS OWN CONSTITUTIONAL PROVISIONS the court would not interfere. The court will not substitute its own will for that of a political party or any other voluntary association. Those who join clubs or associations or political parties must be made aware of the perils of membership. The majority will must prevail whether it is reasonable or unreasonable. The court cannot intervene in a matter such as this.”

It does appear that the power brokers within the various political parties only understood and interpreted this dictum to mean party supremacy without giving due thought to all the operative words used by the Supreme Court. The operative words as I identify them in capital letters are these: WILL, OTHERS, MAJORITY, SUPREME, APPROPRIATE AUTHORITY, DISCIPLINE, and UNLESS IT HAS VIOLATED ITS OWN CONSTITUTIONAL PROVISIONS.

The WILL as used by the court could only mean the will of the MAJORITY members of the political party which in a democracy approximates to the will of the political party and not the will of some faceless powerful clique within the political parties foisted on others and labeled majority will. The MAJORITY will must be the will of the true majority, the will of the OTHERS and not the One or Few according to the Supreme Court. APPROPRIATE AUTHORITY is to be found only where the party constitution locates that authority, a decision of an appropriate authority of the party has to and must emanate from the appropriate authority. Only then, as the Supreme Court contemplates will the member be obliged to obey such decisions. A decision of a powerful party chairman/chieftain is not a decision from the appropriate authority. A political party can DISCIPLINE members only when they err but discipline as our parties now use it has become a gun boat diplomacy tool, “take whatever we give you without complaint or else we expel you”.

The Supreme Court then made it unequivocally clear that such decisions must not be in violation of the party’s constitutional provisions, in which case it will become one of such cases in which the court can interfere. Party supremacy cannot be called on to legitimate unjust dealings in a political party which should otherwise be an association of “a body of men united for promoting by their joint endeavours, the national interest upon some particular principle in which they are agreed” in the words of Edmund Burke.

Internal democracy in political parties extends beyond the conduct of primaries in a democratic manner and in accordance with the Constitution and Guidelines of the political parties. It extends to what happens even after successful primaries are held and candidates not popular with the powers that be who control the party apparatchik get nominated from those primaries. By this, I refer to the power of political parties to change or substitute their candidates, a point Banire’s piece did not discuss.

In contemplation of the above scenario, Section 34 of the Electoral Act, 2006 introduced a new provision which requires political parties wishing to substitute candidates after their primaries to give cogent and verifiable reasons for doing so. The first person to test this amendment in the law court was Senator Ifeanyi Ararume, who went to court after he was substituted with Chief Charles Ugwu as the Peoples Democratic Party’s candidate for Imo State gubernatorial race.

In Ugwu v. Ararume (2007) 7 MJSC1, the Supreme Court held that Section 34 (2) of the Electoral Act, 2006 does not invest a political party with an absolute power to substitute a candidate who wins the primary election. The provision makes it mandatory for the political party effecting the substitution to give to the Independent National Electoral Commission (INEC) cogent and verifiable reasons for the substitution.

According to the apex court, the section clearly imposes a duty on any political party intending to do so by informing INEC in writing within a specified period of not later than 60 days to the date of the election. The section contains mandatory provisions which any political party intending to effect any change in the list of its candidates submitted to the Commission to contest any election must comply with. The court clearly stated that the Electoral Act and the party constitutions must be seen to be complementing the Constitution in formulating broader rules, regulations and operation mechanisms for the true convenience. Where any of such enactment, rules or policies comes in conflict with any section of the Constitution, that enactment, rule or policy must surrender to the Constitution.

Accordingly, the court further held that, there is no rational to permit a political party, once it has given its commitment or mandate to a candidate whom it had already nominated whether wrongly or rightly to bulldoze its way to rescind that mandate for no justifiable cause. Politics is not anarchy. It is not disorderliness. It must be punctuated by justice, fairness and orderliness. The admonition of Muhammad JSC at this stage is very apposite. According to the distinguished JSC:

“…If we still want to instill sanity into our human affairs, if we want to entrench unpolluted democracy in our body polity, the naked truth must permeate through the blood, nerve and brain of each and every one of us. Although credit may not always have its rightful place in politics we should try to blend the two so as to attain a fair, just and egalitarian society where no one is oppressed. Let us call a spade a spade. Let us not give a dog a bad name in order to hang it”.

The above Supreme Court decision opened a floodgate of cases as other aggrieved candidates rushed to the court for redress. Following the judicial principle of (stare decisis) precedent, that is lower courts mandatorily following the decision of higher courts, the Court of Appeal and High Courts had no choice but to follow suit.

Hitherto in matters of this nature, the political parties gleefully pleaded non interference in the internal affairs of political parties. When it became obvious that the defence of court’s lack of jurisdiction to interfere in the internal affairs of political parties had been overridden by the decision of the Supreme Court in Ugwu v. Ararume (supra) as it affects substitution of candidates, the political parties promptly changed their defence in order to defeat the reasoning of the court and the demands of justice in the Ararume case.

The political parties raised a new defence to the effect that disputes over party primaries were electoral matters over which only the Election Petition Tribunals can properly adjudicate and as such the regular courts have no jurisdiction to hear such matters.

The Supreme Court again rejected this roundabout argument in the case filed by the former Speaker of the Rivers State House of Assembly, later Governor of Rivers State and now Minister of Transport, Mr. Rotimi Amaechi against Mr. Celestine Omehia, the then Governor of Rivers State in Rt. Hon. Chibuike Rotimi Amaechi v. INEC & Ors. (2008) 5 NWLR (Pt. 1080) 227 at 365.

Closely following the above decision was the pronouncement of the Court of Appeal in a case seeking to determine who should be the PDP’s candidate for Akwa Ibom North East Constituency between Senator Bob Effiong and Chief Albert Ime. The Court of Appeal, Abuja division held that a case bordering on substitution of candidates by parties after the primaries was not an election matter that must be heard by an Election Petition Tribunal. The court consequently dismissed the objection filed by Ime challenging its (court) jurisdiction to hear an appeal filed by Effiong.

The apex court and the appellate courts clearly showed in the latter cases that the rules and procedures governing the conduct of affairs and internal democracy must be respected in political parties for there to be credible elections. In Ozigbo v. PDP (2010) NWLR (Pt. 60) at Page 55, the Court of Appeal held “political parties like any other corporation operate within the guidelines, power and duties set out in their Constitution. All their members are bound by the provisions set out in the party constitution”. Odedo v. INEC (2008) 3 LRECN pg 579-580.

If Section 34 of the Electoral Act, 2006 was designed to check the arbitrary and unjust substitution of candidates by political parties the succeeding Section 33 of the Electoral Act, 2010 which repealed the 2006 Act went even further.  In my view, the draftsman realized the great mischief political party “godfathers” can do to victimize otherwise successful candidates at primary elections and thus made the provision for substitution of candidates even more stringent in the new Act.

It does appear that whilst it would be correct to state that under the provisions of the erstwhile Section 34 of the Electoral Act, 2016 a political party will not engage in cancelling election results for fun and it will not deny any of its members the fruits of an election victory unless it is right and just to do so; that is there are cogent and verifiable reasons to do so, the same cannot be true of Section 33 of the Electoral Act, 2010 (as amended) which replaced Section 34 of the repealed Act.

The political parties under the provisions of Section 33 have no such powers. A proper construction of Section 33 of the Electoral Act, 2010 (as amended) leaves a very narrow window for substitution of a candidate for an election. The Section provides thus:   “No political party shall be allowed to change or substitute its candidate whose name has been submitted pursuant to Section 32 of this Act, except in the case of death or withdrawal by the candidate”.

In Odedo v. INEC (Supra) the Court held in interpreting Section 34 that “in my view, the provision of Section 34 is very clear and unambiguous. The duty to change, substitute and/or replace a candidate in an election is that of a political party which, it goes without saying, must initiate same. The act of substitution out of necessity is that of the political party in which appellant has no role to play. A party, who wins a primary election, would not take the issue of substituting him or her with another candidate lightly and as such a political party who intends to change him or her must ensure that it complies with the statutory provisions of Section 34 of the Act. This was the position taken by my learned brother in this court Muhammed JSC in the popular case of Amaechi v. INEC & Ors. (2008) 5 NWLR (Pt. 1080) 227 at 365. What I can deduce from this principle of law as enunciated by my learned brother are twofold:

1. The obligation of proving that the provision of Section 34 of the Electoral Act, 2006, is complied with by a political party who changes or intends to change its candidate in any election is that of a political party who effected the change or seeking the change; and
2. It is neither the duty of INEC nor the court to provide extraneous evidence to explain the reason or reasons for the substitution, except the reason stated in the application for change.

Section 33 of the Electoral Act, 2010 (as amended) read in conjunction with Sections 35 and 36 of the same Act clearly shows that unlike the 2006 Act this prominent role played by the political parties in the change and substitution of candidates for elections is not envisaged at all.

Section 35 provides that “a candidate may withdraw his candidature by notice in writing signed by him and delivered by himself to the political party that nominated him for the election and the political party shall convey such withdrawal to the Commission not later than forty-five days to the election”.

Section 36 on the other hand provides for cases of death. “(1) if after the time for the delivery of nomination paper and before the commencement of the poll, a nominated candidate dies, the Chief National Electoral Commissioner or the Resident Electoral Commissioner shall, being satisfied of the fact of the death, countermand the poll in which the deceased candidate was to participate and then Commission shall appoint some other convenient date for the election within 14 days.”

These are very clear and simple provisions. Neither of the Sections leaves any room for ambiguity. The Supreme Court has held in a plethora of cases that clear and unambiguous words in a statute mean exactly what they say. In Kotoye v. Saraki (1994) 7 NWLR (Pt. 357) page 414 at 427 the Court held that  “it is a settled cardinal principle of statutory interpretation that where in their ordinary meaning the provisions are clear and unambiguous, effect should be given to them without resorting to external aid”.

Similarly in Attorney-General, Abia State v. Attorney-General of the Federation (2005) 12 NWLR (Pt. 940) 452 at 503 and 516 the Court reiterated the principle thus:  “a Court is not entitled to read into a statute words which are excluded expressly or impliedly from it. Thus, where the provisions of a statute are clear and unambiguous, effect must be given to the words without resorting to any extrinsic aid to interprete it. The solemn and sacred duty of the Court is to interprete the words used in the section by the legislation and give them their intended meaning and effect”.

As Banire pointed out, Section 87 of the Electoral Act, 2010 (as amended) is so elaborate that it states the types of primaries that a political party may adopt (direct or indirect) and the procedural steps a political party must follow where it adopts either of the two types of primary election in case of each election mentioned therein and he has indeed exhaustively treated party primaries in his piece.  He quoted the Supreme Court in Shinkafi v. Yari (2016) 1 SC ( Pt. II) 1 thus:  “it is now trite that where a political party conducts its primary and a dissatisfied contestant at the primary election complains about its conduct of the primaries, the courts have jurisdiction by virtue of the provision of Section 87 (9) of the Electoral Act, 2010 (as amended) to examine if the conduct of the primary was in accordance with the party’s Constitution and Guidelines. The reason is that in the conduct of its primaries, the Courts will never allow a political party to act arbitrarily or as it likes. A political party must obey its Constitution”.

Let us juxtapose this; that is the conduct of the primaries with the consequent actions political parties can take to change or substitute their candidates even after successful primaries have been conducted and the rational conclusion to draw from Sections 33, 35 and 36 of the Electoral Act, 2010 (as amended) is that political parties can no longer change or substitute candidates even under the pretence that the party has clear, cogent and verifiable reasons to do so.

The fact that political parties have absolute control over their primaries so long as they do so in accordance with the extant laws is not a call to debate. What must be noted however is that unlike the powers afforded a political party in Section 34 of the Electoral Act, 2006 which the Court interpreted in Odedo v. INEC as “the duty to change, substitute and/or replace a candidate in an election is that of a political party which, it goes without saying, must initiate same. The act of substitution out of necessity is that of the political party in which appellant has no role to play” the power to substitute on its own terms is no longer available to political parties by reason of the clear provisions of Section 33 of the Electoral Act, 2010 (as amended).

In PDP v. Sylva (2012) 13 NWLR (Pt. 1316) 85, the Supreme Court construed the provisions of Sections 33 and 35 of the Electoral Act, 2010 (as amended) and held respectively “by virtue of Section 33 of the Electoral Act, 2010 (as amended), a political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to Section 31 of the Act except in the case of death or withdrawal by the candidate” … “the interpretation of Section 33 and 35 of the Electoral Act, 2010 (as amended) is that after a candidate wins the primaries of his political party, he can only be substituted by his party with another person if he dies or withdraws. If he chooses to withdraw he must inform the party in writing, signed and delivered by him and the party shall notify INEC not later than 45 days to the election”.

To further ensure internal democracy in our political parties, Section 33 of the Electoral Act, 2010 (as amended) no longer gives the political party any role to play outside of the candidate himself in the substitution of already nominated candidates. It is worthy of note that even if the parties still arrogate this power to themselves, they no longer have it. The nominated candidate has to solely decide to withdraw or die before the party can even contemplate a change or substitution. In a way, this provision simplifies the job of political parties by providing them with a clear, cogent and verifiable reason unlike in the past when a party arbitrarily substitute candidates and then shop for its cogent and verifiable reason for doing so.

In conclusion and in keeping with the necessity of internal democracy in the political parties and the provisions of the extant Electoral Act, 2010 (as amended), a candidate already nominated can only be substituted in two circumstances over which the political parties have no control – a formal withdrawal by the candidate of his candidature or the death of the candidate which must be verified by INEC.

In all these though, one can only hope all the stakeholders will take heed so the promise of democracy will be birthed in Nigeria.

Stephen Onimisi Obajaja Esq, a Partner at the Lagos Law Firm of Fountain Court Partners was until recently Secretary of the NBA, Lagos Branch.

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