Inec & Anor. V Musa & Ors (2003)
LAWGLOBAL HUB Lead Judgment Report
O. AYOOLA, J.S.C.
The respondents in this appeal were the plaintiffs in the Federal High Court Abuja Division (Adah, J.). In the originating summons commencing the action, the plaintiffs asked for the following reliefs:-
“1. A DECLARATION that the registration of political parties in Nigeria is governed by the provisions of the Constitution of the Federal Republic of Nigeria, 1999.
- A DECLARATION that the 1st defendant, Independent National Electoral Commission (INEC) cannot prescribe guidelines for the registration of political parties outside the conditions stipulated by the Constitution of the Federal Republic of Nigeria, 1999.
- A DECLARATION that guideline No. 3(a) contained in the 1st defendant’s Guidelines for the registration of political parties dated the 15th day of May, 2002 issued by the 1st defendant, Independent National Electoral Commission (INEC) but released to the public on the 17th day of May, 2002 which prescribes that an association seeking registration as political party must submit “the names, residential addresses and States of origin respectively of the members of its National and State Executive Committees and the records of proceedings of the meeting where these officers were elected” is unconstitutional, and therefore null and void, in so far as it enjoins such association to submit the names, residential addresses and States of origin respectively of the members of its State Executive committees, and the records of proceedings of the meetings where both members of its National and State Executive Committees were elected.
- A DECLARATION that guideline No. 3(c) contained in the 1st defendant’s ‘Guidelines for the registration of political parties’ dated the 15th day of May, 2002 issued by the 1st defendant, Independent National Electoral Commission (INEC) but released to the public on the 17th day of May, 2002 which prescribes that an association seeking registration as a political party must present “a register showing that its membership is open to every citizen of Nigeria” is unconstitutional and therefore null and void.
- A DECLARATION that guideline No. 3(d) (iv) contained in the 1st defendant’s ‘Guidelines for the registration of Political Parties’ dated the 15th day of May, 2002 issued by the 1st defendant, Independent National Electoral Commission (INEC) but released to the public on the 17th day of May, 2002 which prescribes that an association seeking registration as a political party must show “a provision that its Constitution and Manifesto conform with the provisions of the 1999 Constitution, the Electoral Act of 2001 and these guidelines” is unconstitutional and therefore null and void in so far as the guideline relates to “the Electoral Act, 2001 and these guidelines”.
- A DECLARATION that guideline No. 3(e) contained in the 1st defendant’s ‘Guidelines for the registration of political parties’ dated the 15th day of May, 2002 issued by the 1st defendant, Independent National Electoral Commission (INEC) but released to the public on the 17th day of May, 2002 which prescribes that an association seeking registration as a political party must have “a register showing the names, residential addresses of persons in at least 24 States of the Federation and FCT who are members of the association” is unconstitutional and therefore null and void.
- A DECLARATION that guideline No.3 (f) contained in the 1st defendant’s ‘Guidelines for the registration of political parties’ dated the 15th day of May, 2002 issued by the 1st defendant, Independent National Electoral Commission (INEC) but released to the public on the 17th day of May, 2002 which prescribes that an association seeking registration as a political party must present “an affidavit sworn to by the Chairman and Secretary of the association to the effect that no member of the National Executive of the association is a member of any other existing party or existing political association” is unconstitutional and therefore null and void.
- A DECLARATION that guideline No. 3(g) contained in the 1st defendant’s ‘Guidelines for the registration of political parties’ dated the 15th day of May, 2002 issued by the 1st defendant, Independent National Electoral Commission (INEC) but released to the public on the 17th day of May, 2002 which prescribes that an association seeking registration as a political party must present “a bank statement indicating the bank account into which all income of the proposed political association has been paid and shall continue to be paid and from which all expenses are paid and shall be paid” is unconstitutional and therefore null and void.
- A DECLARATION that guideline No.3 (h) contained in the 1st defendant’s ‘Guidelines for the registration of political parties’ dated the 15th day of May, 2002 issued by the 1st defendant, Independent National Electoral Commission (INEC) but released to the public on the 17th day of May, 2002 which prescribes that an association seeking registration as political party must submit “the addresses of its offices, list of its staff, list of its operational equipment and furniture in at least States of the Federation” is unconstitutional and therefore null and void.
- A DECLARATION that guideline No. 3(h) contained in the 1st defendant’s ‘Guidelines for the registration of political parties’ dated the 15th day of May, 2002 issued by the 1st defendant, Independent National Electoral Commission (INEC) but released to the public on the 17th day of May, 2002 in so far as it prescribes that a party seeking registration must submit a list of its staff, list of its operational equipment and furniture in its headquarters office at Abuja is unconstitutional and therefore null and void.
- A DECLARATION that guideline No. 5(b) contained in the 1st defendant’s ‘Guidelines for the registration of political parties’ dated the 15th day of May, 2002 issued by the 1st defendant, Independent National Electoral Commission (INEC) but released to the public on the 17th day of May, 2001 which prescribes that “a person shall not be eligible to be registered as a member of political association seeking to be registered as a political party if he/she is in the civil service of the Federation or of a State” is unconstitutional and therefore null and void.
- A DECLARATION that guideline No.2 (d) contained in the 1st defendant’s ‘Guidelines for the registration of political parties’ dated the 15th day of May, 2002 issued by the 1st defendant, Independent National Electoral Commission (INEC) but released to the public on the 17th day of May, 2002 which prescribes that each association seeking registration as a political party must accompany its application with twenty (20) copies of the Association’s Constitution is unconstitutional and therefore null and void.
- A DECLARATION that guideline No. 2(c) contained in the 1st defendant’s ‘Guidelines for the registration of political parties’ dated the 15th day of May, 2002 issued by the 1st defendant, Independent National Electoral Commission (INEC) but released to the public on the 17th day of May, 2002 which prescribes payment of N100,000.00(One hundred thousand Naira) by an association, that applies for registration is unconstitutional and therefore null and void.
- A DECLARATION that sections 74(2)(g) and (h), 74(6), 77(b) and 78(2)(b) of the Electoral Act, 2001 which enlarge and 79(2)(c) of the said Act which curtails the provisions of the 1999 Constitution on the registration of political parties are unconstitutional and therefore null and void and of no effect whatsoever.
- A PERPETUAL INJUNCTION restraining the 1st defendant, Independent National Electoral Commission (INEC), its agents, officers, privies from basing the registration of political parties either in whole or in part on guidelines Nos. 3(a), 3(c), 3(d)(iv), 3(e), 3(f), 3(g), 3(h), 5(b), 2(c) and 2(d) or from acting on the said guidelines in the consideration or process of the registration of political parties.
- AN ORDER compelling the 1st defendant, Independent National Electoral Commission (INEC) to refund the sum of N100,000.00 (one hundred thousand Naira) paid by each of the associations that applied for the registration as political parties.
- AN ORDER compelling the 1st defendant, Independent National Electoral Commission (INEC) to return 19 of the 20 copies of the association’s Constitution submitted to the Independent National Electoral Commission (INEC) by the political associations that have applied for registration as a political party.”
The trial Judge granted reliefs Nos. 1,2, 13 and 16 in full and granted in part reliefs No. 14 in respect of section 74(2)(g) of the Electoral Act, 2001 only and No. 15 in respect of Guidelines Nos. 2(c) and 3(g). The remaining reliefs were not granted by him. The plaintiffs, aggrieved by the decision, appealed to the Court of Appeal, Abuja Division (Musdapher, JCA, (as he then was) Muntaka-Coomassie and Bulkachuwa, JJ.C.A.). The 1st respondent also cross-appealed.
The Court of Appeal allowed the main appeal by the plaintiffs and set aside part of the judgment of the trial court refusing several of the reliefs sought by the plaintiffs. The court below declared the guidelines issued by the defendant, namely, 2(c), 2(d), 3(a), 3(c), 3(d)(iv), 3(e), 3(f), 3(g), 3(h) and 5(b) unconstitutional, null and void. It also declared sections 74 (2)(g) and (11), 74(6), 77(b), 78(2)(b) and 79(2)(c) of the Electoral Act, 2001 unconstitutional, null and void. The court finally made an order of injunction against the 1st defendant restraining it, its agents, officers, privies “from basing the registration of political associations as political parties on the aforesaid offending provisions of the Guidelines and the Electoral Act, 2001”, and dismissed in its entirety the cross-appeal brought by the 1st defendant.
The defendants appealed to this court against the decision of the Court of Appeal. At the conclusion on 29th October, 2002 of the argument by counsel, the court gave its judgment on 8th November 2002 and reserved the reasons for the judgment till 24th January, 2003. The appeals by both the 1st and 2nd defendants succeeded only in part and to the extent only that the court below was in error in granting the 2nd and 12th reliefs and in granting the 14th and 15th reliefs in their entirety. Consequently, the court granted relief Nos. 1,3,4,5,6,7,8,9,10, and 11 but refused relief Nos. 2,12,13, 16 and 17. Relief Nos. 14 and 15 were granted in part only, respectively as follows: That relief No. 14 is granted in part only, that is, in respect of sections 74 subsection (2)(h) and 79 subsection (2) of the Electoral Act, 2001 but not in respect of the other sections of the Act. That relief No.15 is granted in part only, that is, in respect of Guidelines Nos. 3(a), 3(c), 3(d)(iv), 3(e), 3(f), 3(g), 3(h) and 5(b) but not in respect of Guidelines 2(c) and 2(d).
The plaintiffs were associations seeking registration as political parties. By virtue of section 221 of the Constitution “No association, other than a political party, shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election”, and by virtue of section 222 of the Constitution:
“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, circumstance of birth, sex, religion and 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.
The plaintiffs each applied to the Independent National Electoral Commission (“INEC” or “the Commission”) for registration as a political party. On 17th day of May, 2002 INEC released guidelines for the registration of political parties. Being of the view that guidelines 2(c) and (d), 3(a), (c), (d)(iv), (e), (f), (g), (h); and 5(b) (“the impugned guidelines”) were “inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 relating to the registration of political parties” and that they should not be made to comply with the guidelines, the plaintiffs commenced the proceedings from which this appeal arose by originating summons whereby they sought, among other things, declarations of invalidity of those impugned guidelines and also of sections 74(2)(g) and (h), 74(6), 77(b), 78(2)(b) and 79(2)(c) of the Electoral Act, 2001.
INEC is one of the Federal Executive Bodies established by section 153(1) of the Constitution of the Federal Republic of Nigeria 1999 (“the Constitution”). Its composition and powers are by virtue of section 153(2) contained in part 1 of the third schedule tothe Constitution, paragraph 15(b) of which empowers it to: “register political parties in accordance with the provisions of the Constitution and an Act of the National Assembly”, while paragraph 15(c) and (d), respectively, provided that the Commission shall have power to “monitor the organization and operation of the political parties, including their finances” and “carry out such other function” as may be conferred upon it by an Act of the National Assembly.”
Section 228 of the Constitution empowers the National Assembly to make laws, among other things –
“for the conferment on the Commission of other powers as may appear to the National Assembly to be necessary or desirable for the purpose of enabling the Commission more effectively to ensure that political parties observe the provisions of this part of this chapter.”
The phrase “This part of this chapter” is that part dealing with political parties as are contained in sections 221 – 229 of the Constitution.
Pursuant to its power under section 228 of the Constitution the National Assembly enacted the Electoral Act 2001 (“the Act”), Part 111 of which made provisions for political parties. Section 74(1) of the Act provided that INEC shall have power to register political parties and regulate their activities from time to time. Subsection 2 of section 74 went on to provide that no association by whatever name called shall function as a political party, unless certain conditions are fulfilled. Therein was listed in (a) – (f) thereof identical conditions of eligibility to function as a political party as have been specified in section 222 of the Constitution. The conditions in section 74(2) of the Act questioned by the plaintiffs were those they regarded as additional conditions prescribed in paragraphs (g) and (h) of that subsection. As earlier stated they also questioned the constitutionality of sections 74(6), 77(b), 78(2)(b) and 79(2)(c) of the Act. The trial court declared the invalidity of section 74(2)(g) but upheld the validity of the other provisions challenged. However, the Court of Appeal held that all the impugned provisions of the Act were unconstitutional and, therefore, null and void.
Section 74(2)(g) and (h) provided, respectively, that no association by whatever name called shall function as a political party, unless it provides evidence of payment of registration fee of N100,000 or as may be fixed from time to time by an Act of the National Assembly; and, it provides the addresses of the offices of the Political Association in at least two-thirds of the total number of the States of the Federation spread among the six geo-political zones. Section 74(6) makes registration of an association as a political party conditional on compliance with the conditions prescribed in subsections 1 and 2 of section 74 and upon payment of the sum of N100,000 administration and processing fees. Section 77(b) provides that once an association is granted registration as a political party by the Commission, that political party shall further submit to the Commission a copy of the party’s constitution drawn up in compliance with chapter 11 of the Constitution of the Federal Republic of Nigeria and with the requirement of the relevant guidelines issued by the Commission. Section 78(2)(b) provided that the constitution and manifesto produced by a political party shall at all times, be in compliance with the provisions of the Constitution, the electoral laws and guidelines made by the Commission. Section 79(c) provides that a person shall not be a member of a political party if he is a member of the Public Service of the Federation, a State or Local Government or Area Council as defined by the Constitution.
To put the issues in the appeal in proper perspective it is expedient to pause to emphasise that by section 14(1) of the Constitution the Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice. Political parties are essential organs of the democratic system. They are organs of political discussion and of formulation of ideas, policies and programmes. Plurality of parties widens the channel of political discussion and discourse, engenders plurality of political issues, promotes the formulation of competing ideas, policies and
programmes and generally provides the citizen with a choice of forum for participation in governance, whether as a member of the party in government or of a party in opposition, thereby ensuring the reality of government by discussion which democracy is all about in the final analysis. Unduly to restrict the formation of political parties or stifle their growth, ultimately, weakens the democratic culture. However, to leave political parties completely unregulated and unmonitored may eventually make the democratic system so unmanageable as to become a hindrance to progress, national unity, good government and the growth of a healthy democratic culture. Between the two apparent extremes over-regulation and complete absence of regulation is the need for balanced regulation. In interpreting the provisions of the Constitution and enactment relating to the formation, regulation and monitoring of political parties the recognition of the need for balanced regulation is essential.
Section 40 of the Constitution of the Federal Republic of Nigeria 1999 (“the Constitution”) provides that:
“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.”
However, although section 40 of the Constitution entrenched the right of every person to form or belong to a political party, it is clear from the proviso to that section and several other provisions of the Constitution that the makers of the Constitution did not opt to leave political parties unregulated by the State. Regulation of political parties by the State manifests in the fact that the Constitution itself has set conditions for the existence and recognition of political parties and empowered the National Assembly to legislate for the regulation of political parties that may have already fulfilled the conditions of eligibility to function as political parties as prescribed by section 222 of the Constitution. Regulation of political parties by the State therefore comes in two forms, namely: regulation directly by the Constitution as in section 222 and regulation authorised by the legislature or other agency of the State as may be permitted by the Constitution. It follows that any attempt to regulate political parties not by the Constitution itself or by its authority is invalid.
The main issue that arose in the case was, thus, the extent to which the National Assembly could legislate to regulate political parties or by legislation authorise INEC so to do. In particular, the question arose whether, as regards the impugned provisions of the Act, the Constitution empowered the National Assembly to set additional conditions of eligibility for the functioning of political associations as political parties and, as regards the guidelines prescribed by INEC, whether the Constitution had also empowered, or had authorized the National Assembly to legislate to empower INEC to set such additional conditions. The subsidiary, but not unimportant question was whether in regard to each of the impugned provisions, any or which of them amounted to such additional conditions beyond those prescribed by the Constitution. Viewed from a broader perspective, the general question as regards the Act was the real ambit of the powers of the National Assembly to legislate for the registration of political parties, while the particular question was as to the competence of the National Assembly to enact the impugned provisions of the Act. Similar questions arose in relation to the powers of INEC in regard to the guidelines and in particular, the competence of INEC to make the impugned guidelines.
Section 162 of the Act provided that:
“The Commission may, subject to the provisions of this Act, issue regulations, guidelines, or manuals for the purpose of giving effect to the provisions of this Act and for administration thereof.”
It was pursuant to this provision and the Constitution that INEC issued guidelines, some of which are the subject of this appeal. Guideline 2(c) and (d) of the guidelines stipulated, respectively, that the application for registration as a political party shall be accompanied by evidence of payment of prescribed fee of N100,000.00 in bank draft; and twenty copies of the Association’s Constitution. Guideline 3, in so far as is relevant to this appeal, stipulated that:
“No association by whatever name called shall be registered as a political party unless the Association submits to the office of the Chairman of the Commission the following
(a) The names, residential addresses and States of origin of the members of its National and State Executive Committees and the records of proceedings of the meeting where these officers were elected.
(b) XXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXX.
(c) A Register showing that its membership is open to every citizen of Nigeria.
(d) i. XXXXX XXXXX XXXXXXX
(ii) XXXXX XXXXXXX XXXXXXXX
(iii). XXXXX XXXXXXX XXXXXXXX
(iv) A provision showing that its constitution and manifesto conform with the provisions of the 1999 constitution (sic: Constitution), the Electoral Act of 2001 and these guidelines.
(v.) XXXXX XXXXX XXXXX XXXXX
(vi.) XXXXX XXXXX XXXXX XXXXX
(vii) XXXXX XXXXX XXXXX XXXXX
(e) A register showing the names, residential addresses of persons in at least 24 States of the Federation and F.C.T who are members of the association.
(f) XXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXX
(g) A bank statement indicating the bank account into which all income of the proposed Political Association has been paid and shall continue to be paid and from which all expenses are paid and shall be paid.
(h) The address of its lawful Headquarters office at Abuja and the address of its offices, list of its staff, list of its operational equipment and furniture in at least 24 States of the Federation.
(i) XXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXX
Guideline 5(b) stipulated that a person shall not be eligible to be registered as a member of political association seeking to be registered as a political party if he/she is in the civil service of the Federation or of a State. The Court of Appeal held that all these enumerated guidelines were unconstitutional and therefore null and void.
The Court of Appeal held that all the impugned provisions of the Act and of the guidelines, except one, were unconstitutional. Copious references were made in the leading judgment of the court delivered by Musdapher, JCA (as he then was), to authorities on principles of interpretation of the Constitution which are now well known and about which there was no controversy. For my part, I do not see any issue of interpretation of the Constitution that had arisen in the case. Rather, what was involved was application of clear and straight forward provisions of the Constitution. Be that as it may, at the end of the day, it is clear that the appeal to the court below was decided on the main ground that “although the National Assembly has powers under section 228 of the Constitution to make any law in relation to an association wishing to be registered as a political party, it has no power to make any law in relation thereto outside the provisions contained under section 222 and perhaps S. 223 of the Constitution.”
The submission of counsel for the plaintiffs, who were the appellants in the court below, was that the Constitution having made provisions for the registration of political parties, the National Assembly lacked the “legislative competence and vires to either enlarge, alter and curtail the clear provisions of the Constitution.” If that was the view that the Court of Appeal had intended to accept in the passage of the leading judgment quoted above, it is evident that the court below stated the position too narrowly than may be acceptable. What is clear is that the National Assembly cannot legislate inconsistently with the provisions of section 222 or 223 of the Constitution, but it can legislate for matters outside the provisions of either section 222 or section 223 provided there is legislative authority derived from other provisions of the Constitution. Being of the view that “once an association meets the conditions spelt out under s. 222 and s. 223, such an association automatically transforms and becomes a political party capable of sponsoring candidates and canvassing for votes in any constitutional recognized elective offices through out Nigeria”, the court below struck down all the impugned provisions, both of the Act and of the guidelines, except one. For the sake of completeness, I note the views expressed by the court below as follows: in regard to section 40 of the Constitution, that the only derogation of the right to form or belong to a political party is as contained in the proviso to the section; in regard to section 228 of the Constitution, that the power it confers on INEC is limited to registered parties; in regard to the impugned provisions of the Act, that they were not within the contemplation of that section 228 of the Constitution.
On the 1st defendant’s appeal from the decision of the Court of Appeal, Mr. Eghobamien, SAN, learned counsel for INEC, raised two issues for determination thus: (1) Whether the court below had jurisdiction to adjudicate in the suit when the 2nd defendant was denied fair hearing, and (2) “Whether the 1st appellant (Independent National Electoral Commission) have powers under the 1999 Constitution and the Electoral Act, 2001 to make guidelines for Political Associations seeking to transform into political parties.” The first issue was unarguably without substance. The 2nd defendant who had not even appealed to the court below was a party to the appeal and had not complained that he was denied an opportunity of a hearing in the court below. It was thus surprising, to say the least, that senior counsel for the 1st defendant had considered the issue worthy not only of canvassing but also of being put at the forefront of his argument in the appeal which raised more serious and important issues. The formulation of the second issue raised by the 1st defendant was unhelpful, it being evident that there was no controversy in the case about the power of INEC to make guidelines. What was in issue was the extent to which such guidelines could be made.
For his part, Mr. Jacobs, learned counsel for the 2nd defendant, raised two issues as follows:
“1. Whether the National Assembly is not competent to enact the impugned provisions of the Act and thereby the same were rendered unconstitutional and void; and
- Whether the impugned guidelines were not within the provisions of the Constitution with regard to the registration of political parties.”
Although the plaintiffs had formulated issues for determination in different words the substance of the issues formulated by counsel on their behalf was the same as that formulated by the 2nd defendant’s counsel.
In so far as the argument presented by counsel for the 1st defendant was directed at showing that the National Assembly had power to legislate for the registration of political parties and that INEC had power to make guidelines, the argument of the learned counsel was not of much assistance since the general question was not as to the existence of those powers but as regards the extent of the powers which these bodies have in regard to matters already stated. On the particular issue, counsel for the 1st defendant did not proffer any argument whatsoever on the competence of the National Assembly to enact the impugned provisions of the Act other than section 79(2) in respect of which he asserted, without any argument in support, that “it cannot be right in fact and in law for a [civil servant] to be a card carrying member of any party, in view of the crucial role he/she plays in the affairs of government.” On the issue of the guidelines, the argument presented by counsel for the 1st defendant was, largely, that the guidelines furthered in several respects the purposes of the Constitution and are in consonance with its provisions.
The submissions by counsel for the 2nd defendant were helpful though rather wide-ranging. On the crucial question, it was submitted that the competence of the National Assembly to legislate in respect of registration of political parties was not taken away by the doctrine of covering the field because sections 222 and 223 of the Constitution have not “completely, exhaustively and exclusively” covered the field of registration of political parties; and that section 222 of the Constitution did not evince an intention to list out exhaustively the requirements for the registration of political parties, nor did it state the modalities for the registration of the national officers of a political party or of its constitution. As to the ambit of the legislative power of the National Assembly, learned counsel for the 2nd defendant referred to item 56 of the Exclusive Legislative List in the second schedule to the Constitution where regulation of political parties was placed within the exclusive legislative power of the National Assembly; the proviso to section 40 of the Constitution; section 15(2) and (3)(d) of the Constitution and paragraph 15(b) of the third schedule, to support the submission, not only that the National Assembly has legislative power to legislate for the registration of political parties but also that the Constitution does not restrict the source of the powers given to INEC to register political parties only to its provisions but extended it to the provisions of an Act of the National Assembly. He called in aid section 228(d) of the Constitution and submitted that the National Assembly could make laws that may appear to it to be necessary or desirable for the purpose of enabling INEC more effectively ensure that political parties observe the provisions of sections 222 and 223 of the Constitution. In his submission, most of the impugned provisions struck down by the Court below were designed to fulfill the objectives of the Constitution of promoting national integration as spelt out in section 15(3) of the Constitution.
Chief Fawehinmi, SAN, learned counsel for the respondents, submitted, on the general issue, that section 222 of the Constitution is exhaustive of the requirements for recognition of a political association as a political party; that no guideline and no Act of the National Assembly can “add to, alter, enlarge, curtail, or repeat the conditions contained in section 222”; that if an Act of the National Assembly duplicates the requirements in section 222 such law is inoperative to the extent of such duplication and if such law adds to, curtails, or alters the said requirements, it is unconstitutional and therefore, null and void; that section 228 of the Constitution merely empowered the National Assembly to make laws with respect to already registered political parties and that, in any event, section 222 had already covered the field in respect of political parties seeking registration; and, relying on the doctrine of covering the field enunciated in A.G., Abia State and 35 others v. A.G., Federation (2002) 6 NWLR (Pt.763) 264, that the National Assembly had no power to enact the impugned sections of the Act and INEC had no power to make guidelines on how an association can become a political party in so far as the Constitution has covered the field in section 222. Testing the impugned sections of the Act and guidelines against the background of principles stated by him, he submitted that those impugned provisions were unconstitutional and therefore null and void.
In the final analysis this case is about the supremacy of the Constitution. Section 1(3) of the Constitution provided that:
“If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.”
I take as my starting point some interrelated propositions which flow from the acknowledged supremacy of the Constitution and by which the validity of the impugned provisions will be tested. First, all powers, legislative, executive and judicial must ultimately be traced to the Constitution. Secondly, the legislative powers of the legislature cannot be exercised inconsistently with the Constitution. Where it is so exercised it is invalid to the extent of such inconsistency. Thirdly, where the Constitution has enacted exhaustively in respect of any situation, conduct or subject, a body that claims to legislate in addition to what the Constitution had enacted must show that it has derived the legislative authority to do so from the Constitution. Fourthly, where the Constitution sets the condition for doing a thing, no legislation of the National Assembly or of a State House of Assembly can alter those Constitution in any way, directly or indirectly, unless, of course the Constitution itself as an attribute of its supremacy expressly so authorised.
The legislative power of the National Assembly consists of the power to make laws for the peace and order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution, to the exclusion of the House of Assembly of States and to make laws with respect to any matter in the Concurrent Legislative List set out in the First Column of Part II of the Second Schedule to the Constitution to the extent prescribed in the Second Column; and with respect to any other matters with respect to which it is empowered to make laws in accordance with the provisions of the Constitution.
Although the Constitution does not state that an Act of the National Assembly cannot duplicate the provisions of the Constitution, by judicial interpretation, verging on policy, the consequence of such duplication has been variously described as “inoperative”, “in abeyance”, “suspended”. (See A.G., Ogun State v. A.G., Federation (1982) NSCC 1, at Pp. 11, 27-29, 35); also reported in (1982) 3 NCLR 166. Howsoever it is described, where the Constitution has covered the field as to the law governing any conduct, the provision of the Constitution is the authoritative statement of the law on the subject. The Constitution would not have ‘covered the field’ where it had expressly reserved to the National Assembly or any other legislative body the power to expand on or add to its provisions in regard to the particular subject. Where the Constitution has provided exhaustively for any situation and on any subject, a legislative authority that claims to legislate in addition to what the Constitution had enacted must show that, and how, it has derived its legislative authority to do so from the Constitution itself. In this case, section 222 of the Constitution having set out the conditions upon which an association can function as a political party, the National Assembly could not validly by legislation alter those conditions by addition or subtraction and could not by legislation authorise INEC to do so, unless the Constitution itself has so permitted.
The National Assembly has powers: by virtue of section 228(d) of the Constitution, to confer by law powers on INEC as may appear to it to be necessary or desirable for the purpose of enabling the Commission more effectively to ensure that political parties observe the provisions of sections 221-229 which deal with political parties; and, by virtue of item 56 of the Exclusive Legislative List, to legislate for the regulation of political parties. INEC has direct power granted by the Constitution to register political parties. Any enactment of the National Assembly referable to this purpose cannot be held invalid. By the same reasoning, any guideline or regulation made by the Commission that carries into execution the same purpose cannot be unconstitutional.
However, does the power to register or regulate political parties include the power to determine eligibility of an association to function as a political party Consideration of this question makes some prefatory observations pertinent. First, by setting out the conditions upon which an association shall function as a political party in section 222, the Constitution has impliedly withdrawn such matters from the ambit of any regulatory enactment that the National Assembly may make. Secondly, section 229 of the Constitution defines a political party in terms of its activities. A political party starts as and is basically an association. However, for an association to be able to engage in the activities which only a political party is permitted to engage in, that is to say function as a political party, it must comply with the provisions of section 222 of the Constitution. Section 222 is thus about conditions of eligibility of an association to engage in the activities that by virtue of section 221 only political parties can engage in as specified in section 229.
In dealing with provisions of the Constitution concerning political parties the Constitution used different words and phrases which must be clearly understood if confusion is not to be engendered. In the proviso to section 40 the Constitution spoke of recognition’; in paragraph 15(b) of the third schedule it spoke of registration by INEC of political parties; and, in section 222, as has been seen, the provisions are about eligibility to function as a political party. In my judgment, recognition of a political party is not quite the same thing as registration of a political party, while registration of a political party is quite distinct and is not the same thing as eligibility of an association to function as a political party, even though these are all inter-related aspects of the same subject. Registration is the process of recording the existence of a political party and it provides evidence and certification of compliance with section 222 of the Constitution. It is evident that a political party cannot be registered as being in existence unless the association has satisfied the conditions of eligibility in section 222. It is therefore clear that the power to register is not the same as and does not include the power to declare the conditions of eligibility. Similarly, the power to regulate or monitor political parties relates to associations which have a recognised existence as political parties. Such power does not also imply any power to legislate the conditions of eligibility. Registration of political parties facilitates the exercise of the regulatory and monitoring powers of INEC which are within the purview of the legislative competence of the National Assembly. According recognition to a political party is the fact of acceptance of the existence of an association eligible to function as a political party, while registration is the recording and certification of that fact.
In this con, while the submission made by counsel for the 2nd appellant that section 222 of the Constitution does not evince an intention exhaustively to list out the requirements for registration of parties and that the modalities for registration of the National offices is not stated in that section, cannot be faulted as statements of fact, it is besides the point because section 222 does not deal with registration of parties, there was no doubt that INEC has power to register political parties and the National Assembly can legislate in regard to the exercise of those powers. Where, however, in the exercise of legislative power to make laws to provide for the registration, monitoring and regulation of political parties the National Assembly purports to decree conditions of eligibility of an association to function as a political party the National Assembly would have acted outside its legislative authority as stated in the Constitution. Similarly, INEC acting under such law to prescribe conditions of eligibility would have acted inconsistently with the Constitution.
Applying the test inherent in the distinction between conditions of eligibility on the one hand, and registration, regulation or monitoring of political parties on the other, it becomes much easier to determine which of the impugned provisions of the Act and the guidelines are outside the competence of the National Assembly or INEC. Before this test is applied, a further distinction should be drawn between guidelines which are administrative or procedural or evidential in nature. Guidelines which are administrative in nature merely relate to the administrative mechanism of the process of registration. Guidelines which are of a procedural nature relate to the procedure to be followed in seeking registration. Evidential guidelines relate to proof of compliance with the conditions of eligibility. Where the requirements for registration stated in any guideline or in the Act are not purely administrative or procedural or evidential, but are substantive conditions for eligibility beyond the conditions prescribed by section 222, such guidelines or provisions would have enlarged the conditions of eligibility in section 222 and be consequently void, notwithstanding that they may have been described as requirements for registration.
Applying this test, I felt no hesitation in holding that guideline 3(a); 3(c); 3(d)(iv); 3(e); 3(f); 3(g); 3(h) and 5(b) are neither related to administration nor to any procedure for seeking registration nor are they evidence of any conditions stated in section 222 as conditions of eligibility. They have no administrative significance in the process of registration. The conclusion was inescapable that as they stand, on their own and unrelated to any of the conditions of eligibility prescribed in section 222, but are conditions of registration which are not procedural or evidential or required for any administrative purpose related to the process of registration, they are, albeit in a disguised form, fresh conditions for eligibility to function as a political party beyond what the Constitution had prescribed.
Guidelines 2(c) which related to evidence of payment of prescribed fee of N100,000.00 is a purely administrative requirement, while guideline 2(d) which provided that twenty copies of the associations Constitution and Manifesto shall accompany the application for registration is in furtherance of and is related to section 222 (c) of the Constitution.
I now turn to the impugned provisions of the Act. It was clear enough that section 78(2)(b) of the Act which related to a political party already registered was valid as its provision came within the legislative competence of the National Assembly by virtue of section 4(1) of the Constitution and item 56 of the Exclusive Legislative List – Regulation of Political Parties.
Section 79(2)(c) of the Act was invalid because it was inconsistent with section 40 of the Constitution. In terms of section 45(1)(a) of the Constitution, there is nothing reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health in prohibiting a member of the public Service or Civil Service of the Federation, a State or Local Government or Area Council from eligibility to be registered as a member of a political party. The submission that the restriction is a valid derogation from section 40 by virtue of section 45(1)(a) of the Constitution was erroneous. However, this conclusion is limited to the question of the validity of section 79(2)(c) of the Act and is not related to any question, not now before this court in these proceedings, of the extent to which the activities, as members of a political party, of the category of persons mentioned in that section can be validly restricted by relevant legislation in the interest of the public service. It may well be that the need to ensure objectivity of officers entrusted with the implementation of government programmes, continuity of administration and to foster a public confidence in and a healthy public perception of the public service are factors that may influence and justify some sort of restrictions. But, as earlier stated, that was not an issue in this appeal.
Section 74(2)(h) of the Act was bad because it added to the list of the conditions of eligibility which an association must satisfy before it could be eligible to function as a political party. On the other hand, section 74(2)(g) of the Act was valid because its provisions, relating as they were to production of payment of relevant fees, were purely administrative in relation to the registration process. Section 74(6) was objected to on the ground that it prescribed a requirement for payment of administrative and processing fees. It was argued that the provision was void because it prescribed an additional condition to those prescribed in section 222 of the Constitution. That argument, however, took an unnecessarily narrow view of the matter. The correct starting point is to consider the purpose of the payment and to relate it to the process of registration which is the essential certification of eligibility of an association to function as a political party. Seen in that con, the provisions of section 74(6) are purely administrative in nature. The provision in section 74(6) that only a political association that met the conditions stipulated in section 74(1) and (2) shall be registered as a political party was innocuous once the invalid provision in section 74(2)(h) is removed. Section 77(b) was valid because it related to a political party already registered and its provisions were within the regulatory and monitoring powers of INEC.
The declaration that the registration of political parties in Nigeria is governed by the provisions of the Constitution of Nigeria, 1999 was granted in the sense that and because the ultimate source of any registration or guideline or exercise of power relating to registration of parties must be traced to the Constitution, but not in the sense that the Constitution itself must make direct provisions relating to registration or its mechanism. It was because of this elucidation of the relevance of the Constitution to the registration of political parties that the second declaration was refused. The Constitution does not by itself expressly stipulate conditions for the registration of political parties. It only empowered INEC to register political parties and the National Assembly to legislate for the regulation of political parties. There were several guidelines made by INEC which though not within the conditions prescribed by the Constitution for eligibility of an association to function as a political party were quite valid because they were incidental and relevant to the registration process and were within the regulatory powers of INEC, the details of which cannot be expected to be set out in a Constitution. It is only those guidelines which were of the nature of conditions of eligibility to function as a political party that were invalid as being made without authority of the Constitution. In the result whether INEC could prescribe guidelines for the registration of political patties outside the conditions stipulated in the Constitution or not must depend on the nature of the guidelines. Procedural, evidential and purely administrative guidelines are “outside the conditions stipulated by the Constitution”, yet they are valid. When a declaration sought is couched in wide and imprecise terms, as in relief 2 in this case, it should be rejected. To grant such would lead to confusion.
The injunction sought in claims 16 and 17 related respectively to reliefs 12 and 13 which have been refused. Consequentially, they too were refused. The declaratory and injunctive relief granted respectively in claims 14 and 15 reflected those sections of the Act and the guidelines which were considered not to be valid.
Before I part with these reasons for judgment, it is expedient to note that the Electoral Act, 2001 has been repealed during the pendency of this appeal by S. 152 of the Electoral Act 2002. The reliefs sought related to the constitutionality of some provisions of the Electoral Act, 2001 which have now been repealed and to some of the guidelines made by INEC under the repealed Act. The declarations made in regard to provisions of the Electoral Act are of use only in so far as they were the source of the impugned guidelines. In the Electoral Act, 2002 several of these impugned provisions have already been removed.
Be that as it may, it was for the reasons I have stated that I concurred in the orders made by the court on 8th November 2002.
SC.228/2002
