From Godwin Tsa, Abuja
On Friday, November 8, 2002, the Supreme Court in a unanimous judgment in the celebrated case of late Chief Gani Fawehinmi, SAN in
INEC & Anor V. Balarabe Musa & Ors (2003) 3 NWLR (Pt 806) 72, held that the Independent National Electoral Commission (INEC) lacked the constitutional powers to issue guidelines for the registration of political parties.
Before the landmark judgment, the electoral body had introduced guidelines for party registration that saw the disqualification of the National Conscience Party (NCP), a party founded by the late legal icon, Chief Fawehinmi and many other political parties.
Irked by the decision, NCP and four other affected political parties took INEC to court and won up to the Court of Appeals.
However, dissatisfied by the respective judgment including that of the Court of appeal, which had on July 26, 2002, declared as illegal and unconstitutional, the guidelines used by the electoral body for the registration of political parties, INEC headed to the Supreme Court to upturn the decision.
But in a unanimous judgment, the apex court affirmed the judgment of the Court of appeal.
In agreeing with the Court of Appeal decision, the Supreme Court held that while INEC has the power to publish guidelines, it cannot issue guidelines that clearly violate some sections of the 1999 constitution dealing with party registration.
The apex court specifically anchored it’s decision on the provisions of section 40 Section of the 1999 Constitution (as altered) which provides that “every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any other association for the protection of his interests.”
The late cerebral jurist, Justice Niki Tobi, JSC (God bless his soul), who delivered the judgment, stated the legal position thus:
“Section 40 of the Constitution. By the section, 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. The proviso is to the effect that the above provision shall not derogate from the powers conferred by the Constitution on the INEC with respect to political parties to which INEC does not accord recognition. While the section vests in the individual the right to associate, and assemble with other persons and form or belong to any political party, the proviso restricts the right, and restriction is to the effect that the provision will not derogate from the powers of INEC with respect to political parties to which the Commission does not accord recognition. In other words, section 40 applies only to political parties which INEC accords recognition. In this respect, section 222 of the Constitution comes into play as that section provides for conditions to be fulfilled or satisfied before an association can function as a political party”. Per TOBI, JSC. (Pp. 96-97, Paras. E-C).
On his part, Justice Olayinka Ayoola, JSC, ( as he then was) held as follows: in the Balarabe Musa case, “Registration of political parties facilitates the exercise of the regulatory and monitoring powers of INEC which are within the purview of the legislative competence of the National Assembly. According recognition to a political party is the fact of acceptance of the existence of an association eligible to function as a political party, while registration is the recording and certification of that fact”.
It follows that any attempt by INEC to regulate associations that desire to be political parties in a manner not prescribed by the Constitution would be ultra-vires. Justice Ayoola, JSC, was again on song here, when he expounded: “Registration of political parties by the state therefore comes in two forms namely: regulation directly by the Constitution as in section 222 and regulation authorized by the legislature or other agency of the state as may be permitted by the Constitution. It follows that any attempt to regulate political parties not by the Constitution itself or by its authority is invalid”. Per Ayoola, JSC. (P.26, Paras. A-B).
Justice Ayoola held further in the Balarabe Musa case, when he held that: “The Constitution does not by itself expressly stipulate conditions for the registration of political parties. It only empowered INEC to register political parties and the National Assembly to legislate for the regulation of political parties. There were several guidelines made by INEC which though not within the conditions prescribed by the Constitution for eligibility of an association to function as a political party were quite valid because they were incidental and relevant to the registration process and were within the regulatory powers of INEC, the details of which cannot be expected to be set out in a Constitution. It is only those guidelines which were of the nature of the conditions of eligibility to function as a political party that were invalid as being made without authority of the Constitution. In the result, whether INEC could prescribe guidelines for the registration of political parties outside the conditions stipulated in the Constitution or not must depend on the nature of the guidelines. Procedural, evidential and purely administrative guidelines are “outside the conditions stipulated by the Constitution”, yet they are valid. When a declaration sought is couched in wide and imprecise terms, as in relief 2 in this case, it should be rejected. To grant such would lead to confusion.” Per Ayoola, JSC. (Pp.44-45, Paras. E-C).
Following the above Judgment of the Supreme Court, many political parties who were denied registration by INEC were registered and allowed to participate in the general elections.
That has been the law until last Friday, May 7, 2021, when the Supreme Court departed from those principles of law.
Delivering judgment in the appeal filed by the National Unity Party (NUP), the apex court affirmed the powers of the Independent National Electoral Commission, INEC, to deregister underperforming political parties in the country.
The panel of Justices of the court led by Justice Mary Odili, in a virtual proceeding said it found no reason to set-aside the concurrent findings of the Federal High Court and the Court of Appeal, which had earlier upheld INEC’s decision to deregister some political parties.
Justice Adamu Jauro, who delivered the lead judgment of supreme Court, held that INEC acted within the law and in compliance with extant provisions of the Electoral Act.
The apex court maintained that the lower courts were right when they held that section 225(a) of the 1999 Constitution, as amended, empowered INEC to deregister any political party that failed to meet the statutory threshold of the registration requirement for political parties.
The said Section 225(a) of the Nigerian Constitution, which came into effect with the signing of the amendment to the constitution in 2018, gives INEC the powers to deregister any political party on the grounds of poor electoral performance.
The INEC had after a review of the conduct of the 2019 general elections announced its decision to deregister political parties that failed to satisfy the requirements of the Fourth Alteration to the constitution in line with Section 225A.
“The Commission has determined that eighteen (18) political parties have fulfilled the requirements for an existence based on Section 225A of the 1999 Constitution (as amended),” the INEC Chairman, Mahmood Yakubu, said.
Prof. Yakubu, stated that section 225A, empowers INEC to deregister 74 political parties found guilty of breach of any of the requirements for registration as a political party as well as failure to win at least 25 per cent of the votes cast in one state of the federation in a presidential election or 25 per cent of the votes cast in one local government area of a state in a governorship election; and failure to win at least one ward in a chairmanship election, one seat in the national or state assembly election or one seat in a councillorship election.
Following INEC decision which was announced on February 6, 2021, the affected deregistered political parties had individually and in groups, approached the Federal High Court to challenge the action of INEC. However, in various decisions, the Federal High Court upheld INEC’s powers to deregister them.
Justice Anwuli Chikere of the Abuja division of the Federal High Court, in a judgment delivered on June 11, had dismissed the suit of the 22 appellants challenging the power of INEC to deregister them.
The lower court held that INEC validly exercised its powers in Section 225A of 1999 Constitution (as amended), adding that the parties provided no evidence that they met the criteria for them not to be de-registered.
However, dissatisfied with the judgment of Justice Chikere, the Advanced Congress of Democrats (ACD), Advanced Nigeria Democratic Party (ANDP), Alliance of Social Democrats (ASD), Progressive People Alliance (PPA), United Patriots (UP) and 17 others on June 30, approached the Court of Appeal urging it to set aside the judgment of the lower court and order their relisting.
The appellants contended that INEC could not exercise its power as provided by Section 225 A until it had conducted elections into all elective offices listed in the section.
Accordingly, they urged the Court of Appeal to set aside the judgment of the lower court, which had upheld INEC’s power to deregister political parties which did not win elective position when elections have not been conducted into all political offices nationwide.
Delivering judgment in the appeal, a five-man panel of justices led by the President of the Court of Appeal, Justice Monica Dongban-Mensem, held that the deregistration was illegal because due process was not followed.
The appellate court held that INEC failed to comply with Section 225(A) of 1999 Constitution (as amended) because it did not provide reasons for the deregistration of the political parties.
Justice Dongban-Mensem, who observed that the constitution provides that citizens be entitled to freedom of association, said that the right conferred on a political party could not be taken away except by due process.
The appellate court held that what the appellants are challenging was the process of deregistration and not the act.
Accordingly, Justice Dongban-Mensem ordered that the appellants be relisted as registered political parties. However, the electoral body dissatisfied with the decision, had vowed to challenge it at the Supreme Court.
Recall that the same Court of Appeal in another judgment had upheld INEC’s power to deregister parties.
The judgment was in respect of the appeal filed by the National Unity Party (NUP) challenging the powers of the Independent National Electoral Commission (INEC) to deregister it and other political parties.
In its originating summons before the Abuja division of the Federal High Court, the National Unity Party sought a declaration that the commission does not have the power under Section 225A of the constitution to deregister the National Unity Party or any other political party for failure to win any of the offices mentioned in section 225A of the constitution or score a certain percent of the votes mentioned therein.”
But Justice Taiwo Taiwo of the Federal High Court, in his Judgment, dismissed the case of NUP and affirmed the commission’s power to deregister NUP and other political parties.
On appeal, the Court of Appeal affirmed the judgment of the trial judge and dismissed the claim of the party and affirmed the right of the commission to deregister NUP and other political parties.
It was based on the above judgment that the National Unity Party headed to the Supreme Court to have it set aside. However, the apex court in its judgment last Friday, upheld the powers of INEC to deregister an under- performing political party.
Why supreme court departed from gani’s case
Before the judgment of the Supreme affirming the powers of INEC to deregister a political party, the National Assembly had, following the 2017 constitutional amendment review, laid a solid ground by restoring the power of the electoral body to deregister under-performing political parties, when it amended the Electoral Act of 2010, as contained in the Fourth Alteration by the National Assembly.
The action of the legislatures was to check the proliferation of political parties in the country.
Thus, the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration, No 9) Act, 2017 enacted on May 4, 2017 has amended section 225 of the 1999 Constitution to empower the Independent National Electoral Commission to de-register political parties.
Speaking in support of the judgment of the Supreme Court, a Senior Advocate of Nigeria and human rights activist, Chief Mike Ozekhome (SAN), stated that “The Electoral Act gives INEC powers to regulate elections. The Supreme Court has merely upheld the obvious. There can be no competitive game without a centre referee. It will be lawless and unruly. The Nigerian situation where you have tens of mushroom political parties that exist only in name and on paper, without any genuine efforts to cultivate voters and win elections, or even servers as credible opposition by speaking out against the ills of the society, does not augur well for our wobbling, fumbling and groggy democracy. These associations that label themselves political parties simply clog up the ballot papers, over-tasking INEC in its job and voters who want clear choices, in their presence. Many a time, a valid election is nullified simply because one of the relatively anonymous parties was erroneously or inadvertently left out of the ballot. And when allowed to contest, many of them score just 5 to 12 votes, while the real parties score millions. That is no credible contest by any stretch of the imagination. The answer lies in amending the Constitution and constitutionalising independent candidature, to enable persons who are not able to ideologically identify with any of the existing parties run as sole and independent candidates.
On why the Supreme Court departed from its earlier decision, Chief Ozekhome said: Change of opinion, events and differences in facts. In an ever dynamic society such as ours, the law cannot be static. A more profound and calm review of both cases show that the latter judgement is more sound. Yes, the Constitution grants right to peaceful assembly and association and freedom of movement in sections 40 and 41 of the 1999 Constitution. But the proviso to the said section 40 states unambiguously that “the provisions of this section shall not derogate from the powers conferred by this Constitution in the Independent National Electoral Commission with respect to political parties to which that Commission does not accord recognition “. Furthermore, section 45(1) which deals with restriction and derogation from fundamental rights provides that nothing in sections 40 and 41 ( amongst other sections) “shall invalidate any law that is reasonably justifiable in a democracy in the interest of defence, public safety, public order, public morality or public health; and for the purpose of protecting the rights and freedom of other persons”. The Supreme Court has merely upheld this constitutional position.
Following his footsteps, another Senior Advocate of Nigeria (SAN), Malam Yusuf Ali (SAN) said the Electoral Act (2010 amended) empowers INEC to deregister political parties that fail to fulfill the conditions of registration as stipulated in the Constitution and the Electoral Law, adding that INEC decision was not arbitrary; it was based on extant law.
The senior lawyer stated that many of the so-called registered political parties are not viable. They don’t contest elections and where they do, they score a ridiculous number of votes. The senior lawyer said if we must deepen our democratic values, there should be criteria for political parties to exist.
He said: “The present situation where husband and wife or business partners can float political parties because they have resources to do so would not augur well for our democracy. It is an abuse of privilege. The rule is that any party that failed to win elections or score a prescribed minimum number of votes should be deregistered.”
A former Attorney General of Abia State and a Senior Advocate of Nigeria, Chief Solo Akuma (SAN), in agreeing with the Supreme Court judgment, stated: “The Supreme Court judgment upholding the power of INEC to deregister political parties that failed to meet electoral requirements is good. It will help to weed off mushroom political parties from the system.”
Another human rights activist and lawyer, Monday Ubani agreed that deregistration of parties by INEC is sacrosanct and in conformity with the law. He said there should be no controversy over INEC’s power to deregister parties.
Ubani said: “though some people will argue that we are in democracy and people have the right to come together to form political parties, but we must allow sanity to prevail; otherwise, before 2023, we will have over 100 political parties. To me, it is better we have two major parties, than having mushroom parties that can’t win a single seat at the local government poll.
“We have to look at the provision of law in order to amend it. INEC should apply the power granted it by law to deregister parties that failed to win a seat throughout the federation. He added that parties that fail to abide by the provisions of the Electoral Act should also be deregistered.
The Electoral Act gives INEC powers to regulate elections. The Supreme Court has merely upheld the obvious. There can be no competitive game without a centre referee. It will be lawless and unruly. The Nigerian situation where you have tens of mushroom political parties that exist only in name and on paper, without any genuine efforts to cultivate voters and win elections, or even serve as credible opposition by speaking out against the ills of the society, does not augur well for our wobbling, fumbling and groggy democracy. These associations that label themselves political parties simply clog up the ballot papers, over-tasking INEC in its job and voters who want clear choices in their presence. Many a time, a valid election is nullified simply because one of the relatively anonymous parties was erroneously or inadvertently left out of the ballot. And when allowed to contest, many of them score just 5 to 12 votes, while the real parties score millions. That is no credible contest by any stretch of the imagination. The answer lies in amending the Constitution and constitutionalising independent candidature, to enable persons who are not able to ideologically identify with any of the existing parties run as sole and independent candidates.