ANALYSIS: INEC’s false claim on Appeal Court rulings challenges Nigeria’s multi-party democracy

The claim by the electoral commission (INEC) that it will not obey an order of the appeal court, on the de-registration of political parties, because it contradicts another order of the same court, is based on a false premise, PREMIUM TIMES can report following an extensive review of the two judgements.

Last August, the Court of Appeal, in a suit by 31 political parties who had been deregistered by INEC, ruled that the de-registration was null and void because the electoral commission did not follow due process. The court ruled that the deregistered parties be recognised by INEC.

INEC in its reaction said the ruling contradicted an earlier one by the same Court of Appeal and that because of the contradiction, it will not obey the ruling but will wait for the Supreme Court to decide on the matter.

“We recall that on July 29, 2020, the Court Appeal, Abuja Judicial Division in an appeal filed by the National Unity Party (NUP) affirmed the power of the Commission (INEC) to deregister political parties that fail to meet the constitutional threshold in section 225A. Dissatisfied with the judgment the National Unity Party lodged an appeal that is presently pending before the Supreme Court.

“Faced with two conflicting judgments from the same court, the commission is not in a position to pick and choose which one of them to obey.

“Consequently, the commission will approach the Supreme Court for a final resolution of the issues raised,” INEC spokesperson Festus Okoye said in the statement.

A PREMIUM TIMES review of the two court judgments has however shown that the rulings are related and not contradictory. While the court in both instances upheld INEC’s power to deregister parties, in the case by the 31 political parties, it ruled that due process was not followed.

How the Controversy Started

On February 6, 2020, INEC deregistered 74 political parties, reducing the number of registered parties in the country to 18.

The INEC chairman, Mahmood Yakubu, said the action followed the poor performance of the deregistered parties in the 2019 general elections, in which the parties failed to win any seat.

Mr Yakubu said by their dismal performances in the elections, the 74 affected parties had not satisfied the requirements of the Fourth Alteration to the Electoral Act 2010 (as amended).

Following the decision by INEC, some of the affected parties approached the courts to challenge the commission’s interpretation of Section 225 of the Nigerian Constitution.

Section 225A (b) and (C) of the 1999 Constitution (Fourth Alteration No. 9) Act 2017, provides that INEC “Shall have the power to de-register a political party for (a) Breach of any of the requirement for registration: (b) failure to win at least twenty-five per cent of the vote cast in the state, Presidential; or one local government of the state in a governorship election.”

How Appeal Court got involved

The first judgment of the appeal court on the matter was in July 2020, in the case filed by the National Unity Party (NUP), one of the deregistered parties. Appeal No: CA/A/CV/426/2020 questioned the powers of INEC under Section 225A of the Constitution “to de-register a political party for failure to win any of the offices mentioned therein or score certain per cent of votes mentioned therein without the completion of (an) election in the 774 local government areas in Nigeria and all the states of the Federation.”

The appellant argued through its counsel, Chigozie Eburuo, that local government council elections have to be concluded in all the states before Section 225 of the constitution can be validly exercised.

The presidential, governorship, state and federal legislative elections are conducted by INEC, while local council elections are conducted by state electoral commissions.

INEC also does not conduct all elections under its jurisdiction at the same time, mainly due to invalidation of some governorship elections by the courts many years ago and court orders to rerun some elections after successful petitions.

For instance, during the 2019 general elections held in February and March; governorship elections were conducted in only 29 states, pushing the elections in seven states to be conducted off-season.

Kogi and Bayelsa governorship elections were conducted nine months later on November 16, 2019. INEC also conducted the governorship elections in Edo and Ondo in September and October 2020, while the current tenures of the governors of Anambra, Ekiti, and Osun will expire in 2021 and 2022.

But in a unanimous judgement of a three-member panel led by Justice Mohammed Idris, the appellate court affirmed the judgment of Justice Taiwo Taiwo of the Federal High Court, Abuja who ruled on the NUP suit on May 26 last year. The lower court had ruled that INEC validly exercised its powers in Section 225 (A) of the 1999 Constitution (as amended) in deregistering NUP and the other parties.

The lower court said there was ”nothing before the court to show that the plaintiff, even in the states where elections into local governments have been held, has met the criteria for it not to be de-registered.”

The appellate court also dismissed the appellant’s expression of confidence of winning future elections, saying “That would leave the court in the cross-roads of speculations and assumptions which the court is not permitted to take.”

A second Appeal Court ruling

In another suit, FHC/ABJ/CS/444/19, filed at the Federal High Court in Abuja, the Advanced Congress of Democrats (ACD) and 30 other political parties had also challenged INEC’s interpretation of its powers under Section 225(a) of the Constitution to de-register political parties. Justice Anwuli Chikere, in her judgment on June 12, 2020, reaffirmed the powers of INEC and also ruled in favour of the commission.

However, her judgment was quashed on August 10 by a five-member panel of the Court of Appeal led by Monica Dongban-Mensem in appeal No: CA/ABJ/CV/507/2020 filed by ACD and the 21 other parties.

In the judgment, the Court of Appeal said INEC did not follow due process in exercising its powers under Section 225(a) of the Constitution in deregistering the parties.

The court unanimously held that INEC ignored due process in exercising its powers.

Citing Section 40 of the Nigerian Constitution, Justice Dongban-Mensem stressed citizens’ right to freedom of association.

”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 interest,” the court said.

The court said the proper interpretation of Section 225(a) of the Nigerian Constitution implies that before INEC can validly deregister a party, the party must have failed to satisfy the minimum electoral requirements in subsections B and C of Section 225(A) of the Constitution.

According to the panel, the parties were challenging the process of their deregistration and not the powers of INEC to do so. It ordered INEC to relist the appellants as registered political parties.

The appellate court further noted that the suit filed by the parties at the lower court was yet to be determined when INEC announced the deregistration of the parties.

Apparently, after getting a hint of INEC’s plan, the parties had applied to the court for an order of interlocutory injunction restraining INEC from deregistering them, or any political party, pending the determination of their suit.

The suit was filed on October 30, 2019, and served on INEC on October 31, 2019. But INEC had gone ahead with its plan before the case was determined.

Parties Fume

Many of the deregistered political parties have faulted INEC’s decision to continue to recognise only 18 parties despite the more recent appeal court ruling.

Following the removal of 74 parties from INEC’s register, only 18 parties can present candidates for elections in the country, including for local council polls conducted by state electoral commissions.

INEC said its refusal to reverse the deregistration was because the appellate court gave two contradictory judgments on the issue. It said it would therefore maintain the status quo until the Supreme Court has the final say on the deregistration of parties.

Unimpressed by the explanation, the deregistered parties insisted that the electoral umpire was violating the constitutional right of their members to freedom of association.

”INEC is violating the rights of our members and of other deregistered political parties to freedom of association,” the National Youth Leader of the Socialist Party of Nigeria (SPN), Hassan Soweto, said to PREMIUM TIMES. “We were not allowed to put forward the alternative political programmes that parties like SPN stand for in all the elections that have taken place.”

Speaking on INEC’s stance, the commission’s National Commissioner for Information and Voter Education, Festus Okoye, said the Supreme Court was yet to fix a date for the various appeals on the matter, following the judgments delivered by the Court of Appeals in two suits.

But many of the affected parties who spoke to this newspaper said INEC should allow them to participate in elections, pending the final decision by the apex court.

The President of Inter-Party Advisory Council of Nigeria (IPAC), Peter Ameh, said INEC’s claim that it could not relist the deregistered parties due to the contradictory appeal court judgements was misleading.

Mr Ameh, who is also the National Chairman of Progressive Peoples Alliance (PPA), said the two judgements delivered by the appeal court were significantly different from each other.

He said the appellant political parties went on different grounds, therefore, the commission should act separately on the judgements of the appellate court.

“The appellate court judgement that upheld INEC’s decision to deregister political parties was in a case that challenged INEC’s constitutional powers to deregister a political party. The court said ‘It is clear that section 221 of the Constitution provides INEC with the power to deregister a political party’. But the Appeal Court made that pronouncement based on the prayers put before it.”

Mr Ameh said the second judgement that asked INEC to relist the aggrieved parties was in a case that challenged INEC’s process for deregistering the parties.

“Therefore, INEC’s stance that the courts gave contradictory judgements is misleading to the public,” he said.

When contacted for this report, Mr Okoye said INEC would not speak or argue with the parties since the matter is before the Supreme Court.

“Our position is very clear. Those two matters have been submitted to the jurisdiction of the Supreme Court, which is the highest court of the land. It will be presumptive and disrespectful to argue a matter that is already before the apex court,” the INEC spokesperson said.

“The most rational thing to do as far as the Commission is concerned is to allow the highest court of the land to make a pronouncement to whether what the commission did was right or wrong.

“And the moment the court makes a pronouncement, the Commission will abide, whatever the judgement, because the Commission has a constitutional obligation to respect the judgement of the Supreme Court,” Mr Okoye said in a telephone interview with PREMIUM TIMES.

History of Deregistration

This is not the first time INEC would deregister political parties. It had on at least two previous occasions struck out some political parties from its register: in 2003 and 2011.

Following the 2003 case, the late legal luminary and former presidential candidate of the National Conscience Party (NCP), Gani Fawehinmi, successfully challenged the deregistration of his party. In 2011, INEC under the chairmanship of Attahiru Jega, again axed 39 political parties for not fulfilling the conditions for their registration.

Proliferation of parties and election management

Despite the insistence of the affected parties to be re-registered and allowed to take part in elections, the proliferation of parties might be detrimental to Nigeria, experts argue. Nigeria has witnessed a proliferation of political parties since the return of civil rule in 1999. While three parties took part in the 1999 election, a record 91 parties presented candidates in the 2019 general elections, but most of them failed to win any seat.

Ahead of the 2019 elections, many of the parties had presented themselves as alternatives to the dominant PDP and APC. However, many analysts described the proliferation of parties as an abuse of the country’s liberal multi-party system.

To win elections in a country of over 200 million people and about 250 ethnic groups, important factors have to be considered, such as strong grassroots mobilisation and funding, Cheta Nwanze, the lead analyst, SBM Intelligence, said.

He said most of the parties have no capacity to meet these factors, which is responsible for INEC wanting to take such parties of its register.

But some analysts believe more parties to pick from improves the practice of democracy.

“A multi-party system is necessary. It is what distinguishes an autocracy from democracy,” the director of the Centre for Democracy and Development (CDD), Idayat Hassan, said.

However, Ms Hassan said, INEC needs to establish criteria for participation in elections before a party can get to the ballot.

”There are ways we can do things and make it better. One is to come with eligibility standards and access to the ballot before a party can contest. It doesn’t mean as a party they would not continue to be in existence, after all, we have a multiparty system in many parts of the world even in the United States where the Democrats and the Republicans are the two major political parties.

”They also have smaller parties but it is not all the time you hear them say they want to contest. We need to look at the responsibility of these parties: is there any value-added? Are they doing their responsibility?

“There should be a minimum criterion before a political party can contest an election. It will just ensure many people are not on the ballot paper and do not constitute a nuisance on the ballot paper in such a way that they confuse voters,” she said.

Multi-party system in other countries

Aside from communist countries like China and North Korea, many democracies operate a multi-party system.

In the U.S, the Democratic and Republican, as the dominant parties, automatically get on the ballot, whereas third-party candidates usually have to seek thousands of signatures on petitions just to be listed on the ballot.

Third-party candidates also face financial difficulties in the U.S as in many other parts of the world. Unlike in Nigeria, third-parties have to secure at least five per cent of the vote in the previous election to qualify for federal grants.

During the still-born Third Republic when Nigeria had two political parties, the National Republican Convention (NRC) and Social Democratic Party (SDP), the 1989 Constitution made provisions for public funding of political parties.

But Sections 88 to 93 of the 2010 Electoral Act, which is being amended by the current 9th National Assembly, stipulates private/individual funding of political parties.

This has led to the argument by the deregistered parties that since they do not enjoy public funding, they should be left alone to grow organically.

“No money is given to parties to operate, so the government loses nothing,” Mr Ameh of IPAC, the umbrella body of registered political parties in Nigeria, said. “You cannot force people to belong to an association where they cannot exercise their rights.”

According to Ms Hassan, ”Strengthening the capacity of the party becomes very imperative because you have to strengthen their capacity in such a way that they know their responsibilities.

“They also need to know that they do not necessarily have to contest at the national elections. They can contest during the local government elections, they can use their influence around the local party politics in such a way that they become very viable to contest in a national election.”