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De-registration of political parties: Is it constitutional?

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By Justice Usman Bwala

So much dust was raised over the de-registration of parties done recently by the Independent National Electoral Commission, INEC.

So much arguments and counter-arguments for and against the de-registration of the parties. What is the true position and effect of the deregistration of the parties, was it legal or not? To answer these questions being legal questions require looking at the relevant laws.

The constitutionality of de-registration will have to be viewed viz-a vis the Electoral Act 2010 as amended. Section 78 (7a) of the Act reads as follows: The Commission shall have power to de-register 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 seat or a seat in the National or State Assembly election.

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The INEC can, therefore, de-register a registered political party on two grounds only. The first ground is a breach of the provisions in regard to registration of a political party. Thus, not every breach of the Electoral Act qualifies or is a sufficient reason to de-register a political party, it is only a breach which relates to provisions of the section dealing with registration of a party which is section78 supra.

The provision of the Electoral Act dealing with registration of a party is contained in PART V headed Powers of the Commission to register Political parties in S78 of the Electoral Act. Section 78 of the Electoral Act as amended read as follows:

1. Any political association that complies with the provisions of the Constitution and this Act for the purposes of registration shall be registered as a political party. Provided, however, that such application for registration as a political party shall be duly submitted to the commission not later than six months before a general election.

2. The commission shall on receipt of the documents in fulfillment of the conditions stipulated by the Constitution immediately issue the applicant with a letter of acknowledgment stating that all the necessary documents had been submitted to the commission.

3. If the association has not fulfilled all the conditions under this section, the commission shall within 30 days from the receipt of its application notify the Association in writing stating the reasons for non-registration.

4. Any political association that meets the conditions stipulated in the Constitution and this Act shall be registered by the Commission as a political party within 30 days from the date of receipt of the application and if after the 30 days such Association is not registered by the commission unless the commission informs the Association to the contrary it shall be deemed to have been registered.

5. Any association which through the submission of false or misleading information pursuant to the provisions of this section procures a certificate of registration shall have such certificate cancelled.

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6. No application for registration as a political party shall be processed unless there is evidence of payment of administrative fee as may be fixed from time to time by the Commission.

7.The Commission shall have power to de-register 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 election.

A breach of S 78 supra attracts de-registration of the offending party. Thus submission of false or misleading information which led to the registration of a party, whenever the false or misleading information later becomes known can lead to de-registration of that party S 78 (5) supra.

The second ground for de-registering a party is when a political party fails to win even a single seat in Presidential, Governorship, National or State elections. Once a party fails to win even a single seat in all the elections it shall be de-registered. Failure for a party to win a single seat in any election seals the party’s fate, it shall be de-registered. In legal parlance shall means mandatory or compulsory Gen Muhammadu Buhari vs INEC 2009 All FWLR (Pt 459) 427 at 6610 as opposed to grammatical meaning of futurism. The usage of shall in section 78 (7) supra makes its compliance mandatory by INEC.

When a political party fails to win a single seat in any election of President, Governorship, National and State elections INEC has only one duty that is to de-register that party. Failure to de-register such a party can invite somebody to ask for mandamus to compel INEC to perform its public duty by the de-registering that party. As INEC has been given powers to register a political party, it has been given also powers to de-register a party both on sufficient grounds.

The recent de-registration of some parties was not only proper and valid the action was backed by the constitution and the Electoral Act section 78 supra. It also highlights the electoral umpire as living up to its duty by discharging its constitutional responsibility. Once a party is de-registered it ceases to be a legal party or entity and can no longer carry out any function or contest any election. The de-registered party is a dead party that cannot perform or take part in any activity of any type.

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