Can INEC deregister political parties? (1)

Introduction

Let us pause this week on our discourse of great historical figures and events that shaped history. Let us discuss political parties, the Independent National Electoral Commission (INEC), deregistration and the legal organogram. Can INEC deregister political parties already in existence? If so, how, why, when and what are the legal bases? This is our outing today and next week. Welcome on board with Hard Facts.

When INEC deregistered 74 political parties

The INEC, on February 6, 2020, announced the deregistration of 74 out of the 91 political parties, which took part in the 2019 general election. That left the electoral body with 18 political parties to contend with.

Professor Mahmood Yakubu, INEC’s chairman, recently told a bewildered nation that the deregistered political parties no longer met the requirements for their continued existence.

Not unexpectedly, 33 aggrieved parties that were deregistered argued that they had some court actions against INEC bordering on their existence, a stance rebuffed by INEC.

Many Nigerians hailed the electoral umpire for this “bold step.” Their argument was that, although there is the need to provide the much needed political space for all actors, the proliferation of as many as 91 political parties was too unwieldy and unmanageable.

Gani Fawehinmi’s intervention

To prevent the imposition of a teleguided two-party state, Chief Gani Fawehinmi (as he was accustomed to) had headed for the court to institute the case of INEC & Anor V. Balarabe Musa & Ors (2003) 3 NWLR (Pt 806) 72. He desired to enthrone a wider participatory regime in politics, plurality of voices, opinions ideological preferences and leanings. But what we later beheld was a mushrooming of many associations masquerading as “political parties.” Many of them had no fixed or registered addresses; never fielded candidates in any elections, or won any seat, even at local government level. They simply traded with the bigger political parties, some parading and promoting ideas and principles that defied political analysis.

How does an organisation become a political party?

Section 40 of the 1999 Constitution (as altered) 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.”

It is thus clear that the right to belong to or form a political party is a constitutional right, not a privilege. But, how do you form a political party? Who regulates it? What are the criteria? The answer can be found in the Third Schedule, Part 1, Section 15 of the 1999 Constitution. This section provides that INEC “shall have power to:

(a) organise, undertake and supervise all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a State, and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation;

(b) register political parties in accordance with the provisions of this Constitution and an Act of the National Assembly;

(d) arrange for the annual examination and auditing of the funds and accounts of political parties, and publish a report on such examination and audit for public information;

(e) arrange and conduct the registration of persons qualified to vote and prepare, maintain and revise the register of voters for the purpose of any election under this Constitution;

(f) monitor political campaigns and provide rules and regulations which shall govern the political parties;

(g) ensure that all Electoral Commissioners, Electoral and Returning Officers take and subscribe the Oath of Office prescribed by law;

(h) delegate any of its powers to any Resident Electoral Commissioner; and

(i) carry out such other functions as may be conferred upon it by an Act of the National Assembly.

This section thus places INEC in a pre-eminent supervisory role to dictate which associations can thrive as political parties. Forming a political party by an individual or group is therefore not automatic. This position was given judicial imprimatur by the apex court in the causa celebre, INEC & Anor. V. Balarabe Musa & Ors (supra). In a landmark judgement which we shall resort to again and again in this write-up, the very lucid and fecund Justice Niki Tobi, JSC (God bless his soul), 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) (….. read in context)

Conditions for registration as a political party

The above judgement clearly referred to section 222 of the 1999 Constitution (as altered). The section provides as follows:

222. No association by whatever name called shall function as a party, unless –

(a) the names and addresses of its national officers are registered with the Independent National Electoral Commission;

(b) the membership of the association is open to every citizen of Nigeria irrespective of his place of origin, circumstance of birth, sex, religion or ethnic grouping;

(c) a copy of its constitution is registered in the principal office of the Independent National Electoral Commission in such form as may be prescribed by the Independent National Electoral Commission;

(d) any alteration in its registered constitution is also registered in the principal office of the Independent National Electoral Commission within thirty days of the making of such alteration;

(e) the name of the association, its symbol or logo does not contain any ethnic or religious connotation or give the appearance that the activities of the association are confined to a part only of the geographical area of Nigeria; and

(f) the headquarters of the association is situated in the Federal Capital Territory, Abuja.

Thus, the Constitution itself (the font est origo) imposed conditions that an association must fulfill before INEC can register it as a political party. As Justice Olayinka Ayoola, JSC, was to dilate upon 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”. Per AYOOLA, JSC. (P.39, Paras, D-E) (Read in context).

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 its powers. 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).

INEC empowered to make guidelines for registration

The above position does not by any stretch of the imagination suggest that INEC was, by section 222, stripped bare of powers to make guidelines and stipulate conditions for the registration of political parties, as may be prescribed by the National Assembly. This is because the Constitution cannot contain every minute detail of an issue. Being the grundnorm, it looks at the larger picture, leaves the minute details to the Legislature.

Justice Ayoola captured this essence 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).

(To be concluded next week)

Thought for the week

“Political parties don’t work when people just announce what they are doing and expect everyone else to follow.”

(Tony Abbott)