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Introduction
Last week, we discussed the powers of the Independent National Electoral Commission (INEC) to register political parties and make guidelines towards this. We also saw what conditions an association must satisfy to be considered for registration as a political party by INEC. We shall today conclude on this topical issue.
When is a registered organisation considered a political party?
Registration of a political party in the words of the Supreme Court in the case of INEC & Anor V. Balarabe Musa & Ors (2002) 3 NWLR (Pt 806) 72, is “the process of recording the existence of a political party and it provides evidence and certification of compliance with section 222 of the Constitution. It is evident that a political party cannot be registered as being in existence unless the association has satisfied the conditions of eligibility in section 222”. Per Ayoola, JSC (P.39, Paras. A-C).
Does INEC possess any power to deregister political parties?
The provisions of section 78 (7) (i) (ii) were tested in the case of National Conscience Party V. National Assembly (2016) 1NWLR (Pt 1492) 1. The above provisions are to the effect that INEC “shall have power to deregister political parties on the following grounds:
(i) Breach of any of the requirements for registration; and
(ii) For failure to win Presidential or Governorship election or a seat in the National or State Assembly”.
The court demurred and held that the section was unconstitutional, as it infringed, among others, on the “doctrine of covering the field”.
On Whether the National Assembly has power to enact section 78(7) (ii) of the Electoral Act 2010, the court held: “There is no constitutional provision giving the National Assembly the power to enact Section 78(7) (ii) (ii) of the Electoral Act 2010. (P. 23, para. E)”.
On whether the provisions of section 78(7) (ii) of the Electoral Act 2010 is consistent with the provisions of sections 222-229 of the 1999 Constitution, the court held that “the provisions of section 78(7) (ii) of the Electoral Act 2010 are inconsistent with the provisions of sections 222-229 of the 1999 Constitution. This is because there is no section of the 1999 Constitution which gives power directly or indirectly to the INEC to de-register parties for failure to win presidential or governorship election or seat in the National or State Assembly. See Independent National Electoral Commission (INEC) & Anor v. Alhaji Abdulkadir Balarabe Musa & Ors (2003) 3 NWLR (Pt.806) 72; (2003) 1 S.C. (Pt.1) 106; (2003) LPELR 1515 (SC) at p.39”…….”.
The above decision was, re-echoed by the Court of Appeal in Ekejiuba V. INEC & Anor (2016) LPELR – 40926 (CA). The court held, inter alia, that INEC cannot deregister a political party because if the makers of section 222 of the Constitution had intended to give INEC such powers, they would have said so clear. Hear the intermediate Court:
“Unarguably, by virtue of the combined effect of the proviso to Section 40 and paragraph 15(b) of the part 1 of the Third Schedule to the 1999 Constitution (as amended), the 1st respondent is endowed with the power not to accord recognition to any political party, just the same that it has the power to register political parties, to which citizens of Nigeria have the freedom of choice of which of the political parties that the 1st respondent has registered, to belong to for the protection of his interests. Therefore, the 1st respondent possesses enormous powers with respect to the existence of political parties to Nigeria. For, it plays the critical role of determining which political party it would register and also which one it would not accord recognition. To my mind, it is the political association which qualifies to be accorded recognition by the 1st respondent, that it would invariably register. Hence, if a political association does not have what it takes for it to be accorded recognition by the 1st respondent, then it cannot qualify for registration. Therefore, to my mind, according recognition to a political association precedes its registration as a political party by the 1st respondent. The six conditions of registration are well spelt out in the Section 222 of the 1999 Constitution (as amended).”
What is registration?
In Independent National Electoral Commission (INEC) & Anor v. Alhaji Abdulkadir Balarabe Musa & Ors. (2003) 3 NWLR (Pt.806) 72; (2003) 1 S.C. (Pt.1) 106; (2003) LPELR 1515 (SC) at p.39, the Supreme Court, per Ayoola, JSC, defined the word “registration” thus: “Registration is the process of recording the existence of a political party and it provides evidence and certification of compliance with Section 222 of the Constitution. It is evident that a political party cannot be registered as being in existence unless the association has satisfied the conditions of eligibility in Section 222.” Then the question is, having been first recognized as a political association and duly registered as a political party, by the 1st respondent, to which citizens of Nigeria, could freely belong in order to protect their interests, all in the exercise of their rights under the 1999 Constitution (as amended), can the same 1st respondent later turn round and de-register such a political party a power which was not provided for under the aforesaid Constitution? For, if the constitution provided for the power to register political parties and not to accord recognition to some other political parties, was it out of place for the same Constitution to have provided that a political party can be de-registered by the 1st respondent, under certain conditions, if that was, the intendment of the framers of the Constitution? I am of the considered opinion that if the framers of the 1999 Constitution, having provided for the recognition of political associations, which could metamorphose to political parties through the processes of registration by the 1st respondent pursuant to Section 222 of the Constitution, had the mind that the registered political parties could be deregistered, the conditions for such de-registration would have been spelt out in the Constitution. In other words, since the conditions and processes involved before a political association is registered as a political party by the 1st respondent are clearly spelt out in Section 222 of the Constitution, similarly the processes and conditions for a de-registration of a political party by the 1st respondent, if that was in the mind of the framers of the Constitution, the same would have been clearly set out in the Constitution. I am fortified in my reasoning, having drawn inspiration from the decision of the Supreme Court in INEC v. Musa (supra) at pages 36-37 thereof, to the effect that: “Where the Constitution has provided exhaustively for any situation and on any subject, a legislative authority that claims to legislate in addition to what the Constitution had enacted must show that, and how, it has derived its legislative authority to do so from the Constitution itself. In this case, Section 222 of the Constitution having set out the conditions upon which an association can function as a political party, the National Assembly could not validly by legislation alter those conditions by addition or subtraction and would not by legislation authorize INEC to do so, unless the Constitution itself has so permitted.” per Ayoola, JSC.” Per Yakubu, J.C.A. (Pp. 22-27, Paras. D-B)
This conundrum as to whether or not INEC can deregister political parties persisted until the legislature once more intervened.
The Constitution clears all grey areas
The legislature, watching from the sidelines as the duel between INEC, and political parties raged on the plenitude and amptitude of INEC’s powers to deregister political parties, decided to move in. It did so through amendment of the 1999 Constitution. Section 225A of the Constitution of the Federal Republic of Nigeria (Fourth Alteration, No. 9), 2017, expressly gives INEC powers to deregister political parties for the many reasons stated therein. It provides as follows:
“The Independent National Electoral Commission shall have power to de-register a political party for
a) Breach of any of the requirements for registration
b) Failure to win at least 25 per cent of votes cast in-
i. One state of the federation in a presidential election or
ii. One seat in the National or state House of Assembly election or
iii. One seat in the councillorship election”.
Conclusion
The above provision has ended the debate. INEC was right and constitutionally grounded to have deregistered 74 out of the then existing 91 political parties. The only ground upon which any of the deregistered political parties can successfully challenge INEC’s action is if such a political party can show that it has not breached any of the provisions of section 225A of the Constitution Federal Republic of Nigeria (Fourth Alteration, N0 9) Act, 2017.
C-O-U-R-T!!!
Thought for the week
“No change in the balance of political parties can alter the general determination that no class should be excluded from contributing to and sharing responsibility for the state.”
(Gustav Stresemann)
“All political parties, organisations, and all people should abide by the constitution and laws without any exception. They must all act in accordance with the constitution and laws. I see that as a defining feature of modern political system development.”
(Wen Jiabao)
