The Provision Of Section 40 Of The Constitution Of The Federal Republic Of Nigeria 1999, As Amended By Adedayo Samuel Adesheila Esq

The provision of Section 40 of the 1999 Constitution as amended guides the freedom of the citizens of Nigeria to assemble freely and associate with one another and regulates the freewill to form and belong to any political party, trade union or any legally recognized association.

The said section stipulates thus:

Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests:

Provided that the provisions of this section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to political parties to which that Commission does not accord recognition.

By virtue of the above section, the right to freely associate especially belonging to any political party is unfettered except with regard to political party not accorded recognition by the Independent National Electoral Commission. Let it also be of note that in exercise of any citizen(s) right to freedom of assembly and association, a citizen is has no right to infringe on another’s enjoyment of same right.

It is the right of every citizen to decide which association or group of persons are in the best position to protect his interests. No association or group of persons can arrogate to itself the authority to make that determination on behalf of another.

The right as provided for under Section 40 of the 1999 Constitution as amended is not absolute. No person is allow in exercise of his own right to infringe on another person’s right. The court in the case of R.T.. N.A.C.H.P.N. V.M. & H.W.U.N (2008) 2 NWLR (PT.1072) 575 held thus:

Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 which guarantees the right to freedom of association is not absolute.

It would be out of place and illegal to deny any citizen of this Country by virtue of Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 as amended the right to opt out of any association where such person is a member. The court in giving judiciary flavour to this interpretation in the case of A. G., FEDERATION v. ABUBAKAR (2007) 10 NWLR (PT. 1041) 1 held thus:

Under the provisions of the Constitution of the Federal Republic of Nigeria, 1999, it will operate illegality, injustice and unconstitutionally to refuse or deny a citizen of this country to opt out, join, belong to any political party, trade union or any other association for the protection of his interest, except where, in case of political parties, the National Electoral Commission (NEC) or (INEC) or as the name may suggest has not recognize the party.

Also when the court was confronted with the interpretation of Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 as amended the court in the cases of MBANFO v. MOLOKWU & ORS (2008) LPELR-3696 (CA) postulated thus:

Section 40 thereof guarantee rights to peaceful assembly and association. It says: Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests:

Provided that the provisions of this section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to political parties to which that Commission does not accord recognition.

It is instructive to state that under Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 the right is not absolute. Where a person joined a political party voluntarily and the rules of the party governing the conduct of the person as a member, in that such a member cannot be a card carrier member of another political as much as he still owes its allegiance to the said party (antiparty in the political party) this would not be said to have impinge on such a member’s right to associate with another political party. See the case of RIMI v. P.R.P. (1908) 2 NCLR; ANIEKWE v. OKEREKE (1996) 6 NWLR (PT.452) 60.

From the wording of the section, the Constitution vests in the individual the right to associate, and assemble with other persons and form or belong to any political party, the proviso to the section is to the effect that the provision will not derogate the powers of Independent National Electoral Commission (INEC) with respect to political parties to which the Commission does not accord recognition.

ADEDAYO SAMUEL ADESHEILA is a counsel in the law firm of Ferd Orbih SAN & Co.