Nigeria: INEC loses power to de-register parties

By IndepthAfrica
In News
Jul 30th, 2013
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By Okey Ndiribe & Ikechukwu Nnochiri
ABUJA— The Abuja Division of the Federal High Court, yesterday, held that the Independent National Electoral Commission, INEC, has no powers to de-register any political party in the country without recourse to the 1999 Constitution as amended.

In a five-hour judgment he delivered in a suit filed before the high court by the Fresh Democratic Party, FDP, Justice Gabriel Kolawole nullified a directive the electoral commission issued on December 6, 2012, wherein it de-registered 28 political parties including the plaintiff.

Besides, the court, yesterday, declared Section 78(7) (ii) of the Electoral Act as unconstitutional, invalid, null and void, saying it is offensive to the provisions of Section 40 and Sections 221-229 of the constitution.

INEC

The court stressed that even though Section 228 of the Constitution vested the National Assembly with the powers to enact the Electoral Act, it said the legislature has no power to direct INEC to de-register any political party that failed to win a seat in either the state or National Assembly elections.

Strange concept

According to the judge, “the concept of de-registering a political party is strange and alien to the Constitution. When Section 78(7) (ii) of the Electoral Act, 2011, is construed together with Section 222 of the Constitution, it will appear that the legislative decision of the National Assembly to limit political parties to only those that won state and national elections is nothing but an arbitrary rule of the tongue.

“I am worried that Section 78(7) (ii) of the Electoral Act, 2011, does not appear from my understanding to have any constitutional precedence. It was a product of legislative despotism which will only encourage political parties to become desperate to win election at all cost.

“The section is from all intent and purposes inconsistent with the provisions of the Constitution. To that extent of inconsistency and in line with Section 1(3) of the constitution, it is hereby declared unconstitutional and shall cease forthwith to be part of the provisions of the Electoral Act, 2011, as amended.”

The court, which faulted INEC for not according the political parties fair hearing before de-registering them, maintained that the electoral body, failed to prove through preponderance of evidence that the plaintiff failed to live up to expectation or acted in breach of Section 223 of the Constitution.

“The 1st defendant has not by any scintilla of admissible evidence been able to justify its decision. The preponderance of evidence and burden of proof tilts in favour of the plaintiffs.

“I ask myself whether the 1st defendant, INEC, would have lost anything if it had issued a query to the plaintiff, asking it to adduce reason why it should not be sanctioned in line with Section 78(7) (ii) of the Electoral Act, 2011. Wouldn’t that have enhanced the validity of the decision it took on December 6, 2012?

“The action the 1st defendant took against the plaintiffs was quasi-judicial in nature. It was not an administrative decision as it claimed before this court. It clearly sought to divest the plaintiff of its vested legal right.

“It is my considered view that it was an adverse decision that affects the 1st plaintiff’s civil rights and obligation. Moreso, the right to fair hearing has universal application. The plaintiff was entitled to be heard before the 1st defendant took the decision.

“Consequently, I am of the view that the plaintiffs are entitled to all the reliefs they sought before this court except relief nine which is asking for a cost of N10 million to be awarded against the 1st defendant.

“Our democracy is still at its nascent stage, there is bound to be mistakes. Moreover, should this court order the defendant to pay the cost, it will still be paid with the tax payers money. Therefore I make no order as to cost,” the Judge added.

Meantime, the high court has also reserved judgment in a similar suit that was filed before it by 52 political parties also fighting for survival.

We will appeal the judgement—INEC

In response to the judgement by the court which declared that the Independent National Electoral Commission lacked the power to de-register political parties, the commission has indicated its readiness to appeal the verdict.

This was disclosed by Mr Kayode Idowu, Chief Press Secretary to the Chairman of the commission, Professor Attahiru Jega.

In a telephone interview with Vanguard, yesterday, he said there had been three previous judgments affirming the correctness of INEC’s action with regard to the decision to de-register the affected parties.

He said: “This is the fourth judgment on this matter and it is different. So we would file an appeal against it.”

Okotie’s FDP’s  demands

Specifically, FDP had alongside its presidential candidate and founder of the Household of God Church, Reverend Chris Okotie, dragged INEC and the Attorney-General of the Federation before the court, contending that de-registration of the party was unconstitutional.

Okotie, who equally cited the National General Secretary of the party, Mr Adefela Binutu, as the 3rd plaintiff, also joined the National Assembly and the Inspector-General of Police as co-defendants in the suit.

In their originating summons, the plaintiffs, urged the court to determine “whether the purported de-regulation is not wholly violative of the very underlying constitutional philosophy as loudly proclaimed in the preamble of the 1999 Constitution as it relates to good governance, welfare of all persons, freedom, equality, justice and above all, the principles of democracy/ franchise and social justice as envisaged in Section 14, 15 and 17(10) of the Constitution of the Federal Republic of Nigeria.

“Whether the 1st defendant (INEC) established under Section 153 of the Constitution of the Federal Republic of Nigeria, 1999 is bound to observe the conditions stipulated under section 221-229 of the Constitution relating to restriction on formation of political parties.

“Whether INEC’s letter dated December 6, 2012, addressed to the Chairman of the 1st plaintiff, purportedly de-registering the 1st plaintiff is valid and legitimate in view of the provisions of section 221-229 of the constitution.”

As well as, “whether the 3rd defendant (National Assembly) is competent to enact section 78 (7) (ii) of the Electoral Act, 2010 in relation to de-registration of political parties when the constitution of the Federal Republic of Nigeria has made provisions covering the field in the area.”

Arguing through their counsel, Mr. Fred Agbaje, the plaintiffs, urged the court to declare that “the plaintiff has satisfied all the conditions and requirement of a political party as stipulated under the constitution and under the Electoral Act 2010 and therefore is an extant political party in Nigeria.

 

“That INEC cannot de-register the plaintiffs’ party except in accordance with the provisions of the constitution. A declaration that section 78(7) (ii) of the Electoral Act is unconstitutional, invalid, null and void to the extent that it offends the provisions of section 40 and sections 221-229 of the constitution.

“An order nullifying the so-called re-registration as announced by the 1st defendant on Thursday, December 5, 2012 and conveyed in the 1st defendant’s letter dated December 6, 2012 purportedly de-registering the 1st plaintiff as same is illegal, unconstitutional and wholly violative of democratic tenets and the principle of electoral/ political franchise.

“An order directing the 1st defendant to restore the 1st plaintiff as a political party in Nigeria as well as directing the 1st defendant, its agents, officers, assigns and or privies to continue to recognize the 1st plaintiff as a political party in Nigeria.

“An order of interlocutory injunction restraining the defendants from attempting to implement or implementing and enforcing the so-called de-registration pronouncement of the defendants against the 1st plaintiff”. They also asked for “general damages in the sum of N10million only.”

The court granted all their prayers yesterday except the issue of cost.

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