SHOULD GOVERNMENT INTERFERE WITH THE FREEDOM OF ASSOCIATION OF CITIZENS WITH RESPECT TO REGULATION OF POLITICAL PARTIES?

Originally wrote this on TUESDAY, JANUARY 13, 2009, in my former blog https://probonoadvocate.blogspot.com/2009/01/should-government-interfere-with.html

For a long time, there has always been this sturdy opinion that the formation of political parties should be seriously regulated in Nigeria. This opinion is based on the morbid state of many parties registered with the Independent National Electoral Commission (INEC) of Nigeria but are not performing their constitutional duties to the electorates. Many commentators have opined that the Nigerian Party System should be modelled after the American Political Party System, based on “two-partyism,” and discards the present multiparty system since it is not achieving its desired results. In 2002, INEC tried to limit the number of political parties eligible for the then 2003 General Elections, but this action was challenged, and the Supreme Court ruled that INEC could not do so. Once again, this issue has raised its head again. This is in the form of the recommendation by the Electoral Reform Committee that the numbers of political parties in Nigeria should be pruned down and a specific number should be maintained. Therefore, it has become imperative to really look into this issue of the reduction of the number of political parties. Moreover, since this action would involve the infraction, fundamental freedom, which is the freedom of association, the issue should not be taken lightly.

Freedom of association is a concept that refers to the right to assemble and petition a government peaceably. It is thought to be an effective way for people to join with similar grievances and achieve some lawful political end. It also covers individuals' right to meet and discuss issues together and form groups that may undertake activities to achieve some purpose. This is protected under Section 40, Chapter IV of the 1999 Constitution of Nigeria.

For a person who is schooled in the tradition of Western liberal democracy, registration of political parties looks like an abnormality, yet this may not be the case, especially if working politics is viewed as a reflection of the dynamics of the social system. Within this context, political, institutional development should be viewed as a process of adjustment and re-definition aimed at providing solutions to political problems of a given social formation. Consequently, the analysis of political institutions without considering their historical context may not adequately explain their meaning.

Within the context of the tradition of liberal democracy, political parties are regarded as informal institutions of government. They are therefore formed, funded, and controlled by individuals and non-governmental bodies. The great political parties of the Western World developed in this way.

Such political parties include the Labour, Conservative, and Liberal Democratic parties in the United Kingdom; the Republican and Democratic Party in the United States of America; the Christian Democratic Union, the Christian Social Union and the Free Democratic Party in Germany; the Congress Party and the Janata (Peoples’) Party in India.

Unlike the developed democracies, the tradition in emerging democracies is to get political parties registered before they can field candidates for election. In Nigeria, the 1963 Republican Constitution made provision for an Electoral Commission to divide the country into House of Representative Constituencies at intervals of not less than eight and not more than ten years; and power to register voters and conduct elections. The functions of the commission did not include registration or supervision of political parties.

The 1979 Constitution changed this arrangement as provisions were made for the formation and control of political parties. The constitution specified that:

“No association by whatever name shall function as a political party unless it is registered as a political party by the Electoral Commission.[1] ”

This tradition has been continued in subsequent constitutions. The 1999 Constitution (as amended) also empowered the Electoral Commission, i.e., the Independent National Electoral Commission (INEC), to register political parties. In specific terms, the power authorised INEC to:

(a) Organise, undertake and supervise all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a State, and the membership of the Senate, the House of Representatives, and the House of Assembly of each State of the Federation;

(b) Register political parties in accordance with the provisions of this Constitution and an Act of the National Assembly;

(c) Monitor the organisation and operation of the political parties, including their finances;

(d) Arrange for the annual examination and auditing of the funds and accounts of political parties, and publish a report on such examination and audit for public information;

(e) Arrange and conduct the registration of persons qualified to vote and prepare, maintain and revise the register of voters for the purpose of any election under this Constitution;

(f) Monitor political campaigns and provide rules and regulations which shall govern the political parties;

(g) Ensure that all Electoral Commissioners, Electoral, and Returning Officers take and subscribe the Oath of Office prescribed by law;

(h) Delegate any of its powers to any Resident Electoral Commissioner; and

(i) Carry out such other functions as may be conferred upon it by an Act of the National Assembly[2] .

No association by whatever name called shall function as a 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, circumstance 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 in such form as may be prescribed by 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 contain 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 headquarters of the association is situated in the Federal Capital Territory, Abuja[3] .

Control measures were also introduced through the Constitution as the political parties were expected to provide for:

(a) Periodic elections on a democratic basis of the principal officers and members of the Executive Committee or other governing bodies of the political party[4] ;

(b) A system which allows membership of the Executive Committee or other governing bodies of the political party to reflect, at all times, the Federal Character of Nigeria, and cultural differences at States and Local government levels[5] ; and

(c) Election on democratic basis of its principal officers and members of the Executive Committee or other government bodies, periodically and in any case, not later than four (4) years from the previous elections[6] .

In both the 1999 and 2003 elections, INEC issued guidelines for forming and registering political parties. The guidelines were made according to the provisions of Sections 74(2)(h), 74(6), and 79(2)(c) of the Electoral Act 2001. Some of the provisions were so stringent such as the provision that any political association wishing to become a political party must have an office in at least 24 States and must supply the list of the names, signatures, thumbprints, dates of joining, residential addresses of registered voters in at least 24 states of the federation and FCT who are members of the association and do not belong to any other political party or any other political association. The guidelines also require a newly registered political party to participate in Local Government Area (LGA) elections. The newly registered political party shall thereafter participate in the State and National Elections if, and only if, it scores ten per cent of the seats during the LGA elections in each of not less than 24 states of the federation, including Abuja. And where the newly registered political party fails to score 10 per cent of the seats during the local government elections, the political party shall continue to operate only at the local government level in all subsequent elections until such a time it scores ten per cent of the seats during the LGA elections.

However, some political associations felt that the guidelines were too severe and contrary to the provisions of the Constitution relating to the registration of political parties. The political associations brought an action against INEC to the Federal High Court seeking a declaration that the guidelines issued by INEC are unconstitutional and an order compelling the Commission to register the political association as political parties. The Federal High Court refused to grant the relief sought by the political associations and stated that INEC had the power to issue such guidelines and also the power to register or refuse to register a party that as complied or failed to comply with the said guidelines. The political associations appealed to the Court of Appeal, which reversed the decision of the Federal High Court. It stated in its judgment per Musdapher J.C.A:

“…once an association meets the conditions spelt out under S. 223 and S. 223 [of the 1999 Constitution], such an association automatically transforms and becomes a political party capable of sponsoring candidates and canvassing for votes in any Constitutionally recognised elective office throughout Nigeria. In summary, the guidelines issued by INEC requesting associations to comply when seeking to become political parties are not within the contemplation of the Constitution and are therefore null and void.… Item 15(b) of Part 1 of the Third Schedule of the 1999 Constitution does not authorise the National Assembly or INEC to enact any law or issue any guideline outside the provisions of S. 222, and S. 223 read along with S. 40 of the Constitution.”[7]

This decision was thereafter affirmed by the Supreme Court[8] . It is clear from the decision of the above case that INEC is the creation of the Constitution under Section 153 of the Constitution and, for that reason, is bound to obey the conditions stipulated under Sections 222-229 of the Constitution vis-à-vis the registration of political parties. It is even mandatory for INEC to do so.

The offending provisions of the guidelines appeared to enlarge and curtail, at the same time, the provisions of Section 222 of the 1999 Constitution. There are, therefore, inconsistent with the provisions of the Constitution. The requirements of the Constitution for any political association seeking to convert and metamorphose into a political party are admirably pellucid and transparent.

Since the Constitution has already taken the lead by setting, in the wisdom of its framers of the Constitution, clear guidelines, as it were, all other institutions, including INEC and the political associations, and persons must follow strictly such comprehensive Constitutional directive and instructions.

Thus, once these political associations complied with those simple requirements in sections 222 and 223, INEC has a duty to register such parties. The decision in Musa v. INEC’s case has now been incorporated in the new Electoral Act 2006, which repealed the Electoral Act 2001, in section 76(1), which specifically provides that:

“Any political association which 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 6 months before a general election.”

Section 76(3) of the Electoral Act 2006 also provides that any political association that meets the conditions stipulated in the Constitution and the 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 the Association is not registered by the Commission it shall be deemed to be so registered. And, under section 76(4), if the Association has not fulfilled all the conditions under this section, the Commission shall within 30 days from the receipt of application notify the Association in writing stating the reasons.

Section 79 of the Act provides the decision of the Commission not to register any association as a political party may be challenged in a court of law, provided that any legal action challenging the decision of the Commission shall be commenced within 30 days from the date of receipt of the letter of notification of non-registration from the Commission. Thus, where the Commission refuses to register any political association applies to become a political party, whether, for good or bad reasons, such association has only 30 days to challenge the decision of the Commission to refuse to register it.

However, in Musa v. INEC[9] , the Court of Appeal held that the time-limit imposed by the section only applies to cases where the association is challenging the decision of the Commission for refusal to register it as a political party and not where the association is challenging the constitutionality of the guidelines issued the Commission or the provisions of the Electoral Law.

Having observed earlier that the proviso to section 40 of the 1999 Constitution limits to a considerable extent the guarantee of freedom of association of the individual in respect of political parties and considering the conditions for registration and recognition and conduct of political parties as enumerated in sections 221 – 229, the major issue is whether such conditions and limitations on political parties are reasonable and justifiable in a democratic setting.

Professor Ben Nwabueze believes that there ought to be control of political activities:

“The purpose of an association is invariably in the nature of the activity and other human activities; it should be subject to control. Political activity is no doubt of greater importance to the life of a community than economic or social activities, deserving therefore to be accorded more respect and protection, but it has the greater potentiality to impinge on society’s interest in order and security as to justify even greater control by the state. It is an evil albeit an eminently necessary one.”[10]

Nwabueze continues that in setting the limits to freedom of political association, an account must be taken of the country’s history, culture, character, and social structures, among other factors.

Tocqueville believes that the liberty of political association may be confined within certain limits without forfeiting any part of its self-directing power, and the country may sometimes be obliged to do so to maintain its own authority. He continued that the unrestrained liberty of association for political purposes is the last degree of liberty a person is fit for.

Nwabueze gives reasons to justify his belief in some limitations to political association. As the greatest danger, one of these reasons is that the lack of restriction may throw up an undesirably large and unimaginable number of political parties. This, he says, was Nigeria’s experience in 1978. Within days of lifting the ban on political activities, fifty-three (53) parties had sprouted. According to him, too many parties cannot be in the interest of the country. Too many parties with too many programs would confuse the electorate, and such parties cannot be credible. Because of their numbers, they would tend to fight, and therefore there would be a harvest of violence.

Another argument advanced by Nwabueze, aside from the proliferation of political parties with attendant regulative consequences, is that of the plurality of the Nigerian society. With about three hundred ethnic groupings set apart by wide and deep differences, there lurks the danger that the parties would be formed along ethnic lines. Thus, their activities would be based on ethnicity rather than on nationalist considerations. Due to the nature of their competition, relations between the parties would denigrate into feuds, thuggery, violence, and electoral malpractices.

Again, according to the learned professor, where the parties of the major ethnic groups win elections, the others would be excluded and would become resentful, leading to instability in the political system.

Nwabueze’s submission that a country faced with this kind of danger is entitled to set reasonable restrictions on the freedom of political association without hurting its claim to being a democracy. It is, therefore, a reasonable restriction to prescribe minimum conditions of eligibility to sponsor candidates for elections or minimum conditions for registration as a political party or set a limit to the number of parties permitted to exist.

He also argued that the responsibility of deciding whether a party, which has been registered, has met the requirement to sponsor candidates for elections shall be vested in the electoral body, which must be independent.

The arguments of the professor as been the same as that of Babaginda’s regime, which advocated that the Constitution or a Statute should limit the number of parties that would be formed to avoid proliferation; and also create a stringent condition on geographical spread to prevent the formation of ethnic-based political parties.

I do tend to agree with Nwabueze that some level of control might be necessary. For instance, the party's aims and objectives must conform to the nation's fundamental objectives as entrenched in Chapter II of the Constitution and provide for by section 224 of the Constitution. It will also be necessary to have the parties register somehow with the electoral body to make themselves known and identifiable, and their officers, symbols, and office addresses known for being part of the elections.

On the issue of proliferation of political parties, the constitution should concern itself with this; persons forming political parties do so with a view to not just contesting elections but also winning them. As many political parties as seek registration should be granted it with minimum conditions. It is up to the many political parties to strategize on ways and means of building mergers, coalitions, and consensus where they are too small to make any impact. Making conditions too stringent in the hope that most organizations cannot fulfil them to gain recognition as political parties denies political choices to people. This is a right protected and guaranteed by section 40, and the regulatory authority should not trammel on peoples’ rights.

In summary, it can be seen from the study that while the 1999 Constitution of Nigeria provides for freedom of association (including political association), Government and the electoral body in Nigeria tend to try to hinder or restrict the exercise of such freedom. This could be seen in the Babaginda regime, where he forced a two-party system and banned some persons from participating in the political parties. This was a clear derogation of provisions of section 40. Recently, the Electoral Body, INEC, in 2002, tried to restrict new parties from entering the political system by imposing stringent conditions. Still, the Supreme Court came to the rescue of the Nigerian’s citizen rights by declaring such conditions unconstitutional and of no effect.

People ought to be allowed to express their interests and aspirations through the political parties they form. If the people of one local government area want a party to look after their interest, they ought not to deny it. If a party decides to control only one state or even one ward, it should be allowed to do so if elected. What is important is that it represents a constituency, and the size of the constituency should not be an issue.

Also, it would be good if the Electoral Body would start obeying and complying with the provisions of the constitution that relates to political parties and not orders from the Executive or Legislative Arm of Government, especially when it runs afoul of the provisions of the Constitution.

Furthermore, it can be seen that stringent regulations infringe on free speech and interfere with peoples’ right to freedom of association. The argument states that the purpose of the right of free speech, the right guarantees that people have the right to publish their political views. Under this view, when the laws prohibit people from advocating for or against political candidates by restricting the content of political donation, the laws conflict with the constitutional guarantee of freedom of political speech. Therefore, it is imperative that this aspect of the law be reformed and that the stringent and overtly severe conditions on party finance should be amended to make it more accommodating.

THE most natural privilege of man, next to the right of acting for himself, is to combine his exertions with those of his fellow creatures and act in common with them. Therefore, the right of association appears to me almost as inalienable in its nature as the right of personal liberty. No legislator can attack it without impairing the foundations of society. Nevertheless, if the liberty of association is only a source of advantage and prosperity to some nations, it may be perverted or carried to excess by others, and from an element of life may be changed into a cause of destruction. A comparison of the different methods that associations pursue in those countries in which liberty is well understood and those where liberty degenerates into license may be useful both to governments and parties.

Most Europeans look upon an association as a weapon, which is hastily fashioned and immediately tried in the conflict. A society is formed for discussion, but the idea of impending action prevails in the minds of all those who constitute it. It is, in fact, an army, and the time given to speech serves to reckon up the strength and to animate the courage of the host, after which they march against the enemy. To the persons who compose it, resources which lie within the bounds of law may suggest themselves as means of success, but never as the only means.

Such, however, is not how the right of association is understood in the United States. In America, the citizens who form the minority associate in order, first, to show their numerical strength and so to diminish the moral power of the majority; and, secondly, to stimulate competition and thus to discover those arguments that are most fitted to act upon the majority; for they always entertain hopes of drawing over the majority to their own side, and then controlling the supreme power in its name. Therefore, political associations in the United States are peaceable in their intentions and strictly legal in the means they employ. They assert with perfect truth that they aim at success only by lawful expedients.

The difference that exists in this respect between Americans and Europeans depends on several causes. In Europe, parties differ so much from the majority that they can never hope to acquire its support, yet they think they are strong enough in themselves to contend against it. When a party of this kind forms an association, its object is not to convince but to fight. In America, the individuals who hold opinions much opposed to those of the majority can do nothing against it. All other parties hope to win it over to their own principles. The exercise of the right of association becomes dangerous, then, in proportion as great parties find themselves wholly unable to acquire the majority. In a country like the United States, in which the differences of opinion are mere differences of hue, the right of association may remain unrestrained without evil consequences. Our inexperience of liberty leads us to regard the liberty of association only as a right of attacking the government. The first notion that presents itself to a party and an individual, when it has acquired a consciousness of its own strength, is that of violence; the notion of persuasion arises at a later period and is derived from experience. The English, who are divided into parties that differ essentially from each other, rarely abuse the right of the association because they have long been accustomed to exercise it.

The Americans have also established a government in their associations, but it is invariably borrowed from the forms of the civil administration. The independence of each individual is recognized; as in society, all the members advance at the same time towards the same end, but they are not all obliged to follow the same track. No one abjures the exercise of his reason and free will, but every one exerts that reason and will to promote a common undertaking.

As we have seen earlier in Nigeria, every citizen is guaranteed freedom of association, and thus he can form or belong to any association (including political association). Sections 221-229 of the 1999 constitution elaborate provision for the registration, functioning, conduct, and finances of political parties, setting difficult conditions for the registration of political parties. In the 1998/1999 Elections, only three parties were registered to contest the elections. This was partly because the Independent National Electoral Commission (INEC), the country’s election management body, imposed conditions for registration that were more stringent than the constitution's provisions. The Electoral Act was later amended, and the procedure for registering parties was somewhat liberalised. Nonetheless, Nigeria retains a very illiberal regulatory regime for the registration and functioning of political parties.

Political parties are indispensable for making democracy work and deliver. Thus, finding the proper conditions for better internal functioning and effective legal regulation of political parties is of key importance anywhere.

[1] ?Section 201, 1979 Constitution of the Federal Republic of Nigeria

[2] ?Item 15 of Part 1, Third Schedule, 1999 Constitution of the Federal Republic of Nigeria

[3] ?Section 222, 1999 Constitution of Federal Republic of Nigeria

[4] ?Section 223(1)(a), Ibid.

[5] ?Section 223(1)(b), Ibid.

[6] ?Section 223(2), Ibid.

[7] ?Musa v. Independent National Electoral Commission and Attorney General of the Federation (2002) 11 N.W.L.R (Pt. 777) 297 at 297

[8] ?Independent National Electoral Commission and the Attorney General of the Federation v. Musa (2003) 3 N.W.L.R. (Pt. 806) 72

[9] ?(2002) 11 N.W.L.R. (Pt. 777) 223

[10] ?Nwabueze, B. O. Ideas and Facts in Constitution-Making (Ibadan: Spectrum Books Limited, 1993) p. 145