The unconstitutionality of the move to scrap some political parties

By FRANK IKE CHUDE

The main issue for determination in the above case is the Nigeria law  in item 15 (b) of the third schedule of the 1999 constitution which provides as follows:  “The commission shall have power to register political parties in accordance with the provisions of this constitution and an Act of the National Assembly”.

The issue before the Supreme Court was not about the power of the Independent National Electoral Commission, INEC, to register political parties, it is rather about confining themselves within the provisions of the constitution.

The 1999 constitution of Nigeria makes  provisions under Sections 221 to 229 for political parties and how an association may transform to a political party.

In the case under reference, some political associations as defined in Section 229 of the constitution, together with the 22 others,  sought to be recognized and registered as political parties as defined in the said sections.  They accordingly collected forms for registration as political parties.

Pursuant upon the powers conferred upon the legislature, the National Assembly enacted the Electoral Act 2001 which in its sections 74 & 75 provided the requirements  political associations wishing to be registered as political parties should comply with.
In complying with the provisions of the Electoral Act 2001, the INEC issued guidelines dated 15 May, 2002 for political parties  to enable them  sponsor candidates  for political offices.

Aggrieved associations objected to the constitutionality of the said guidelines and some provisions of the Electoral Act 2001, and challenged  them by filing an originating summons at the Federal High Court.

The matter went as far as to the Supreme Court and  the law was interpreted and finally laid to rest.
The apex court held that Section 222 of the constitution expressly and clearly lays down only six conditions that must be met before an association can function as a political party and,  once the conditions are fulfilled, INEC has no option than to recognize the association as a political party.

The  Supreme Court  also held that once the constitution has made provisions with regard to the registration of political parties, the National Assembly lacks the legislative competence  to either enlarge, alter and/or curtail the clear provisions.

Under the 1999 Constitution, INEC  has power to register political parties and the National Assembly can legislate in regards to the exercise of those powers.  However,  the legislative enactments  are basically laws providing for the registration, monitoring and regulation of political parties, and do not give any agency or authority whatsoever the power to give conditions of eligibility of an association to function as a political party.

The only conditions relevant for the registration of political parties in Nigeria are as provided in Section 222 of the 1999 Constitution  which are as follows:

“No association by whatever name called shall function as a political 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, circumstances 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;

(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 certain 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 headquarter of the association is situated in the Federal Capital Territory, Abuja.

By setting out the above condition, the  constitution has impliedly withdrawn such matter from the ambit of any regulatory enactment that the National Assembly may make.

It is therefore imperative that the  Electoral Act, 2001 and any other law or guideline is subject to the supremacy of the constitution.  By the combined effect of Section 1 © and 1 (3) of the constitution, if any other law is inconsistent with the provisions of the constitution, the constitution shall prevail and that other laws shall, to the extent of the inconsistency, be void.

We, therefore, profoundly submit that for any meaningful change to be made in respect of registration of political parties and the Electoral Act, the relevant portions of the  1999 Constitution need  to be amended particularly in as much as every person has the right to freely associate with other persons and belong to any political party, which right is both sacrosanct and inalienable.

Therefore until Sections 40 and 222 of the 1999 Constitution are amended in the manner prescribed by Sections 9 (3) and 9 (2) respectively, there is nothing anyone can do to stem the flood gate of political parties in Nigeria.
For the avoidance of doubt, once  a political association fulfils or satisfies the six conditions in section 222, INEC is constitutionally bound to register same as a political party and there is nothing the National  Assembly  can do about it.  The Supreme Court in a unanimous decision in the above case held that any attempt to regulate political parties outside this condition is invalid.

* Chude is a legal practitioner and notary public.