Nullity of INEC’s de-registeration of 74 political parties
By Jezie Ekejiuba
It is no longer news that the Independent National Electoral Commission (INEC), through its Chairman, Professor Mahmood Yakubu, penultimate Thursday, February 6, 2020 deregistered 74 political parties in the country. According to the electoral umpire’s helmsman, the named political parties were deregistered pursuant to Section 225A of the 1999 Constitution (4th Alteration Act No. 9, 2017) which empowers the Commission to deregister political parties in the country. Section 225A of the said Alteration Act of the constitution provides the following pre-conditions for deregistration of political parties namely: Breach of any of the requirements for registration as a political party, Failure to win at least 25% of the votes cast in one State of the Federation in a presidential election, or 25% of the votes cast in one Local Government Area of a State in a Governorship election; Failure to win at least one ward in a Chairmanship election; one seat in the National or State Assembly election; or one seat in a Councillorship election.
Legally speaking,all the above-mentioned pre-conditions must exist before a political party is deregistered. In other words, until all the elections from presidential election down to councillorship elections in the 774 Local Government Areas of the country are conducted, no political party can be deregistered. Even after passing and satisfying the above legal hurdle, there is still a legal caveat to the effect that INEC can’t deregister any political party unless the provisions of the principal provisions of Sections 36 and 40 of the 1999 Constitution are strictly complied with and or not violated.
These two principal provisions are part of the Chapter 4 of the Constitution of the Federal Republic of Nigeria which provides for the Fundamental Human Rights of Nigerian citizens. We must bear in mind that while the provision of Section 225A (4th Alteration Act) of the Nigerian Constitution is a domestic law, that of the principal provisions of Sections 36 and 40 of the same Constitution are not only domestic law, they are also international law under the United Nations Charter, African Charter and Conventions of which Nigeria is a signatory. The legal point I am making is that Sections 36 and 40 of the 1999 Constitution are superior to the said Section 225A (4th Alteration Act) of the same Constitution.
Has the Electoral Commission complied with and or not violated the principal provisions of Sections 36 and 40 of the 1999 Constitution in the deregistration by fiat of the 74 political parties as it did? The answer is nay – hence the nullity of INEC does deregistration of the 74 political parties! The reasons for the illegality and nullity are not far-fetched.
By deregistering the named political parties by fiat, INEC and its Chairman has played the role of the accuser, the prosecutor and the judge in their own cause. This is in breach of Section 36 of the 1999 Constitution. For INEC to invoke or implement Section 225A (4th Alteration Act) of the Constitution, it has to give the parties affected by the accusation of breaches of the pre-conditions opportunity to be heard. There must be recorded evidence of such hearing proceeding. Section 36(1) of the 1999 Constitution provides that the right to fair hearing shall extend to the determination of the civil rights and obligations of any person including any question or determination by or against any government or authority. Section 36 sub-section (2)(a) of the same Constitution ensures that every person whose civil rights are to be affected by an administrative decision (INEC decision deregistering 74 political parties inclusive) shall be heard before any determination is made affecting such rights. If any of these principles of fair hearing are not observed, the decision will be liable to being quashed by a court of law. The Supreme Court and Court of Appeal authorities on this principle of fair hearing are legion.
On another ground why INEC’s recent deregistration action is illegal and a nullity is the legal jurisprudence which have received judicial stamp in the class action suit in Barrister Jezie Ekejiuba v. INEC and Anor (2016) LPELR-40926 CA, Appeal No. CA/E/170/2014 where it was successfully argued that the effect of deregistration of any recognized political party in Nigeria is to undermine and or violate the freedom of assembly and association, a fundamental human right protected under the principal provision of Section 40 of the Constitution. In other words, it is hundred percent impossible for INEC or any of its officers, servants or agents to deregister a recognized political party in Nigeria without infringing the freedom of assembly and association, a fundamental right protected under Section 40 of the Nigerian Constitution.
In this cited case all the five(5) reliefs sought were granted including Relief 5, a perpetual injunction order to wit: “5. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st Defendant, Independent National Electoral Commission (INEC) its agents, officers, privies or by any means howsoever from acting or continuing to act on and or putting or continue to put into effect of the aforesaid provision of Section 78(7) of the Electoral Act, 2010 (as amended) and or de-register or continue to de-register any of the recognized political parties in Nigeria that have the effect of infringing the Fundamental Human Rights of the Plaintiff and other law-abiding members of recognized political parties in Nigeria”. The above 2nd arm of the perpetual injunction order against INEC, its agents , officers or privies from deregistering or continue to deregister any of the recognized political parties in Nigeria that have the effect of infringing the Fundamental Human Rights of law-abiding members of recognized political parties in Nigeria is still subsisting. The legal consequence of deregistering the 74 political parties in Nigeria while this order is still subsisting is all well known to INEC.
Again, what many Nigerians do not know yet but it is now a news to them is that INEC appealed against the above decision of the Court of Appeal to the Supreme Court which is still pending as Appeal No. SC.671/2016 in INEC v. Barrister Jezie Ekejiuba and Anor. The questions now are: Is it legal for INEC Chairman to purport to deregister the 74 political parties based on the provision of Section 225A of the 1999 Constitution against the clear words of the above perpetual injunction Order known to him which his appeal is still pending at the Supreme Court? Has INEC and its Chairman succeeded in setting aside the above perpetual injunction Order before embarking on the recent deregistration of the 74 political parties? Did the said deregistration of the 74 recognized political parties in Nigeria not have the effect of infringing the fundamental human rights (freedom of assembly and association) of the members of recognized political parties in Nigeria (recently deregistered) as specifically ordered against by the Appeal Court perpetual injunction Order? The answers are nays.
It is a common knowledge throughout the world that political parties are unarguably, the kings of all associations. The makers of the 1999 Constitution found it wise to provide for freedom of assembly and association in Section 40 expressly as follows: “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 interests: provided that the provisions of this Section shall not derogate from the powers conferred by this Constitution on the Independent National Electoral Commission with respect to political parties to which that Commission does not accord recognition.” Under this provision of Section 40, every citizen of Nigeria (including each member of recognized/registered political partiers) is guaranteed his/her Fundamental Human Rights to freely assemble and associate with each other especially in political parties, trade unions, and other social associations or clubs for protection of his/her interests. The only restriction placed in Section 40 relates only to those unregistered political parties, associations or groups which INEC “does not accord recognition”. This is the crux of the decision in Ekejiuba’s case.
It is therefore illegal for INEC Chairman, Prof. Yakubu to be blowing hot and cold in the implementation of Court Orders by choosing which one to obey and which one to disobey as it concerns the Perpetual Injunction Order restraining INEC from deregistering recognized political parties in Nigeria. Armed with the above Perpetual Injunction Order, all that one need to challenge the above illegality is a simple application by way of Motion at the Court of Appeal for “an Order setting aside as a nullity” the said February 6, 2020 illegal decision deregistering the 74 political parties in the country. This is imminent before Prof. Yakubu cause untold damage to 2023 general election.
Many Nigerians including this writer do not cherish 100 political parties on the ballot in the name of multi-party democracy. But such Nigerians detest the electoral Commission introducing corruption in the system by abandoning the stringent provisions contained in the Nigerian Constitution for registration of political parties in favour of armchair registration and deregistration of political parties.
As some Nigerians are commending the electoral body for deregistering 74 political parties, over 100 political parties ripe for registration are poised to be registered. Each party registration fee is One Million Naira. This suggests that INEC officials are doing brisk business of money for hand, back for ground registration! The only way out of this anomaly is for the National Assembly to amend the Constitution limiting the number of political parties in Nigeria by enacting their names in the Constitution.
Jezie Ekejiuba, Esq.
Human Rights Lawyer & President
Voters Rights International
Tel: 08036095750, Email: firstname.lastname@example.org
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