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PARTY REGISTRATION AND THE POLITICS OF BAD FAITH By The court is not a Father Christmas. It can only grant what it was asked. The associations did not ask for any order compelling INEC to register them. They could have got it but since they did not ask, the court did not grant it. It was a mistake on their part not to have included it in their prayers. There is no part of the judgment where you will find such an order. We never made it. If the associations had presented the request at the High Court, the court would have said either yes or no. If they had gone on to the Court of Appeal, it could have been yes or no. If they had brought it before us, we would have granted it, but that was not so. --------Mohammed Uwais, Chief Justice of the Federation, in a reported telephone interview after the recent ruling of the Supreme Court on the unconstitutionality of INEC guidelines for the registration of political parties.
Under normal circumstances and indeed, in societies where the rule of law counts for something, the recent ruling of the highest court in the land in the afore-mentioned case should have been decisive enough for all concerned; but the Obasanjo administration, fast mastering the dangerous practice of employing extra-judicial means to fiddle and fudge already settled judicial matters can always be trusted to turn reason on its head. The pronouncements emanating from Mr Agabi, the Attorney-General and the unprincipled recant of the Chairman of the inappropriately named Independent Electoral Commission, Mr Guobadia are just symptomatic of such lawless displays. However, to hear the President himself insist, like his Attorney-General, that the INEC is not compelled to register the new parties, as reported in his recent radio chat surely takes the biscuit.
Why would the AG and the President show such unabashed partisanship in an issue as critical as this? Why not simply leave the so-called independent electoral body to do its job? What do they have to lose if INEC does the logical thing, which is registering those political associations as parties? On what legal basis is the AG or President intervening in an issue already decided by the Supreme Court, especially where the AG himself is a party in the case? Is Mr Agabi, the President or Mr Guobadia the final authority, jointly or singularly, on a matter already decided by the Supreme Court? What really is the legal position as things stand now?
The desperate trio (and on the last count, they've been joined by the Chairman of the House of Representative Committee on Electoral Matters, Salisu Abdulkareem) seem to have seized the above statement of the Chief Justice after the decision as some kind of lifeline, but is it? Agabi, Guobadia and the President are saying INEC isn't compelled, but should that be the issue, especially, if, as the Chief Justice's statement indicates, the right would have been granted if requested? Are these men prepared to gamble the credibility of the process or whatever remains of it on an unprincipled insistence on a position they know will not be a great advertisement for justice anywhere and at any level? Yes, the parties did not ask the Court to order INEC to register them, but why should they? Why should they ask any court, even the Supreme Court for what is unarguably their right?
After all, the Supreme Court is not the constitutional authority to register parties; such powers remain with INEC, and having met the conditions constitutionally required for INEC to recognize them, should anyone or court be compelling INEC to do that duty? The issues before the court were the conditions and guidelines put forth by INEC and as far as those guidelines and conditions have been vitiated, isn't it logical that there can be nothing holding back the electoral body from recognising the constitutional rights of these associations to function as political parties, as far as all parties are agreed on the supremacy of constitutional provisions? Section 40 of the Constitution of the Federal Republic of Nigeria, under the Fundamental Rights provisions makes clear the right of every citizen to "assemble freely and associate with other persons, and in particular form or belong to any political party, trade union or any other association for the protection of his interests" subject to the powers conferred by the Constitution on INEC "with respect to political parties to which the Commission does not accord recognition".
So, what are these powers? Chapter VIII, Part 1(F) 15(a-j) of the Third Schedule of Constitution makes these clear, but the particular one that concerns us here is the provision under (b), which states that the Commission shall have power to "register political parties in accordance with the provisions of this Constitution and an Act of the National Assembly". But, since the relevant "Act from the National Assembly"(Electoral Act 2001) itself has been declared unconstitutional and the legality of the new one (Electoral Act 2002) is being contested by INEC itself, as at this stage, we are left with no other option but to depend on the provisions of the constitution.
The constitutional provisions dealing with the responsibilities of political associations seeking registration are contained in Sections 221 and 222: 221.- 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. 222.- 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 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.
INEC and its fraudulent defenders have insisted that the Supreme Court did not rule out the power of INEC to make guidelines, but have nonetheless admitted that such guidelines must be constitutional; but the question is, why would INEC make other guidelines beyond what we have here, and if it does, how would they be deemed constitutional if they are not specifically demanded under the above provisions or indeed anywhere within the Constitution as it concerns associations seeking registration as political parties?
The truth is that INEC wants to arrogate to itself powers the Constitution never granted it as a means of controlling who and who does or does not participate in the political process despite the inalienable rights granted everyone under the Constitution. It was therefore no surprise that the Supreme Court duly declared all the guidelines put forward by INEC to achieve that dubious aim unconstitutional. The only guideline left standing by the court is the one dealing with the submission of 20 copies of the associations' constitutions, a requirement which itself had been met by the associations.
Of course, the logical deduction from this is that the associations are therefore entitled to recognition and can function as political parties having met the provisions of Section 222. This leaves us no choice but to see the latest attempt to put forward new guidelines by INEC as a continuation of its desperate mission to circumvent the apex court's ruling and the provisions of the Constitution.
Now, let's look at these new guidelines: *Application for registration as political party shall be made on the commission's Form PA1 in 20 copies and shall be accompanied by the following documents: names, signatures, residential addresses of the chairman and secretary of the association filling the application. *Names of the proposed party; *A copy of the constitution; *Submission and acronym of the association must not be the same as the name or acronym of an existing party or any known registered political organisation, not have any ethnic, religious, or professional or other sectional connotation, nor give the appearance that its activities are confined to only a certain part of the country. *The constitution must contain the association's name, symbol or logo, motto, aims and objectives *Provision for periodic elections on democratic basis for the principal officers *Provision for the reflection of federal character for the principal officers *Proviso for the disciplinary procedure or for expelling of members *Provision for the amendment of or alteration of the constitution *A provision that the national office of the party shall be located within the Federal Capital Territory *Symbol must not portray any of the following: Coat of arm of the federation, coat of arm of any other country, any device or emblem which is associated with any official acts of government or armed forces or police or any other uniform services or any ethnic tribe or ethnic or religious cult or a portrait of any living or dead or any symbol that is registered by any other group and that *Members must be 18 years and above. First, Mr Guobadia says these new guidelines were drawn from the 2002 Electoral Act and Mr Agabi himself indeed pointed out that the Commission was to be guided by Section 74 of this same Act, but how can they justify this when the Commission itself claims this Electoral Act is a forgery and is indeed in court challenging the constitutionality of the same document?
Secondly, a perusal of these guidelines would reveal that it is a mishmash of constitutional and unconstitutional provisions, including provisions that tend to confuse the rules of EXISTING POLITICAL PARTIES under Section 223 of the Constitution with the constitutional requirements of POLITICAL ASSOCIATIONS wishing to be recognized as political parties under Sections 221 and 222. Below are the provisions of the said Section 223 dealing with already existing political parties: Section 223.- (1) The constitution and rules of a political party shall- (a) provide for the periodical election on a democratic basis of the principal officers and members of the executive committee or other governing body of the political party; and (b) ensure that the members of the executive committee or other governing body of the political party reflect the federal character of Nigeria. (2) For the purposes of this section - (a) the election of the officers or members of the executive committee of a political party shall be deemed to be periodical only if it is made at regular intervals not exceeding four years; and (b) the members of the executive committee or other governing body of the political party shall be deemed to reflect the federal character of Nigeria only if the members thereof belong to different States not being less in number than two-thirds of all the States of the Federation and the Federal Capital Territory, Abuja. It is clear from the above that by the deliberate use of the term "associations" (Section 221 & 222) and "political parties" (Section 223), the Constitution wishes to distinguish between both; but what we see from INEC's new guidelines is an attempt to jumble both, invariably rendering some of those new guidelines, again, unconstitutional.
For instance, the provisions for the reflection of federal character for principal officers, periodic elections on democratic basis for principal officers are requirements for political parties NOT political associations still seeking to be recognized as political parties. Such requirements are only expected of them post-recognition, that is, when they start functioning as political parties and NOT BEFORE they have been recognized as such.
Moreover, such other guidelines as proviso for disciplinary procedures or for expelling members in the associations' constitutions and the provisions for aims and objectives are clearly unconstitutional and so also is the one requiring members to be at least 18 years of age, because while the Constitution is clear about voting age, it does not inhibit anyone from belonging to a political party of their choice on account of age. What all this shows is that INEC, the Presidency and possibly the National Assembly are now involved in a game of brinkmanship aimed at frustrating the registration of new associations. They are obviously scheming to render the decision of the Supreme Court a nullity. And, in all this, without saying so, they are banking on that statement by the Chief Justice AFTER the Court's ruling - the statement I've quoted above.
However, this cannot avail them in anyway, because what that statement indicates is that these associations have a right to be called political parties, the only 'technical' hitch being that they did not ask for an order to that effect. The Chief Justice was clear when he declared that the Supreme Court would have granted such an order. Therefore, this odious attempt by the Presidency and the Minister of Justice to push INEC into circumventing the legitimate expectations of Nigerians in this regard must only be in bad faith. I mean, if the highest court of the land has specifically stated it would have granted it, a justice-loving government would simply do all to grant this; not deny it as Obasanjo and co are doing now.
Lastly, let me end this part of the write-up by saying something briefly about the unprecedented "clerical error" business announced by the Supreme Court. As at the time I'm writing this, the counsels to the parties are due to meet the Justices on this matter. But, this shouldn't be an issue; as unprecedented as this error is, it should be no ground for undue suspicion, especially after the apex court has reportedly explained the exact nature of the error, which was obvious to every discerning reader of the judgment at first glance. It simply concerned the payment of N100, 000 registration fee, which was reported as vitiated by the Court, when indeed further reading shows this isn't so.
The fact that the Court clearly refused to order a refund must mean this isn't vitiated as mistakenly reported. In any case, this really is no issue since the associations in question actually did pay the fee. Furthermore, the fact that the Court described this as a "clerical error" infers that it cannot be fundamental to the decision already reached. So, while we wait to get a report of the meeting with counsels, Nigerians from everywhere must guard against this attempt by INEC and our inept Federal Government to disenfranchise us through the backdoor. The combined effect of the Supreme Court's ruling and a reading of the relevant provisions of the Constitution is that these political associations are deemed to be political parties having met the constitutional requirements. All they need now is a formalisation through registration by INEC. Nigerians must force INEC to do its constitutional duty rather than circumvent it.
By the time of the publication of the first part of this article, we were still expecting to hear what exactly was the outcome of the Thursday, November 21 meeting between counsels and the Justices of the Supreme Court over the "clerical error" affair. Of course, as I said, it was not a great issue since the so-called clerical error was obvious from reading the judgment itself and indeed, the Court itself had explained before now what the issue was. I personally found it curious though that the apex court chose to invite counsels over such a minor matter, when it could simply have used the same medium of the press to pass the information on this correction immediately this "clerical error" was discovered.
The power of the Court under Order 8, Rule 16 (Civil Appeals) of the Supreme Court Rules is clear and straightforward: The Court shall review any judgment once given and delivered by it save to correct any clerical mistake or some error arising from any accidental slip or omission, or to vary the judgment or order so as to give effect to its meaning or intention. A judgment or order shall be varied when it correctly represents what the Court decided nor shall the operative and substantive part of it be varied and a different form substituted.
There's nothing here that compels the Justices to invite counsels when all they wanted to do was replace "granted" with "refused" as it relates to the prayers of the political associations over the payment of the N100, 000 registration fee, which the associations had paid anyway. After all, it was obvious from the facts of the judgment itself that this is the intendment of the Court, since it clearly refused the prayers of the associations for refunds. Nonetheless, the meeting, apart from providing some mild drama, did show something significant in the exchange between the fearless and irrepressible Mr Fawehinmi and the Justices over the statement credited to the Chief Justice after the judgment (which
I adopted as the head-quote in the first part of this write-up) and what the Justices referred to as Mr Fawehinmi's "leakage" of his letter of invitation to the media. Fawehinmi, after accepting the minor correction, had expressed the discomfort of his clients and himself over the interview granted ThisDay newspaper by the Chief Justice, especially as the Court is yet to give reasons for its judgment, which it has reserved till January. But, rather than respond on this point, I was surprised at what followed: Chief Justice Uwais: But what do you say about releasing the letter we wrote inviting you for this meeting? Did you listen to the British Broadcasting Corporation (BBC) report this morning? The leakage of the invitation letter has sent bad signals to the world that there are errors in our judgment when it is only a typographical error. Justice Iguh: Chief Gani Fawehinmi, the leakage of the letter of invitation to the media was done in bad taste and it has now sensationalised the minor correction we want to effect which was purely typographical.
Firstly, I cannot see the crime of Fawehinmi for releasing the official letter of invitation to correct the "clerical error" to the press. It was not meant to be a secret and Fawehinmi was not told to treat this in confidence and even if he were told, it wouldn't be right to keep the press out of such an important development. The invitation is singularly connected with the case in question, and, in a case this important, it would be unjust, unethical and uninformative to keep such letter or the news of such an invitation away from the press - this is a matter of public interest.
I think the public's right to know and follow the development fully far outweighs whatever other consideration the Justices must have had in mind. I think it would have been far worse for Fawehinmi and his clients to go to such a meeting over the same case, without letting the public know of such an important development and would have created an equally bad press thereafter for the Supreme Court as it would create more room for worse speculation than the one the Justices claim to have arisen now. In any case, Fawehinmi was well within his rights to release the letter and I dare say that the speculation that his action may have "sent bad signals to the world" or "sensationalised the minor correction" may not necessarily be true.
I doubt how the Justices would have avoided this having made the mistake in the first place, being that at one time or the other they would have had to make it public. Indeed, about a week before, the Chief Justice himself talked about this at length in the said press report, so how can we be sure that it wasn't even his own statement that is the source of the speculations he speaks about? It was far better to let the press know immediately than after, otherwise the insinuation that something was brewing would have gained more ground if the press was left to discover this themselves or if the Court has chosen to address them after.
Secondly, I find it troubling that instead of addressing the core of Fawehinmi's complaint, the two Justices ignored it and rather raised a red herring of an accusation. What I expected was for the Justices to allay our fears and state unequivocally that the Chief Justice's statement was not meant to prejudice the process of party registration. After all, where has such a precedent been set, that the Chief Justice of the highest court will make such a crucial statement before delivering the raison d'etre for the court's judgment and indeed, before correcting the "clerical error", knowing that INEC could pick this as an excuse to stall on the process, even without saying so? I think Fawehinmi got it right to describe the interview as unethical.
The Chief Justice ought to have accepted it was wrong and give the rest of us some assurance, rather than counter-accusing Fawehinmi over something he had and still has a right to do and which seemed reasonable to do in the circumstances. Frankly, Fawehinmi was in a very difficult situation. How could he, leader of one of the parties in question keep such information to himself, away from his clients? What would have happened to the trust the other parties have in his representation if they were to learn later that he attended a meeting to correct anything, no matter how minor? And, if the Justices expected him to have told his clients, then they could as well have known that in their hands, there would have been a greater risk of it getting to the press.
To allow it to get to the press through such a convoluted process could only have made hay for rumour mongers and would have developed into a far worse scenario than they were complaining about. In any case, it was obvious that there was no hanky-panky in the change effected; keeping it away from the press was simply inviting trouble. Gani acted appropriately. The Justices themselves compounded this whole matter by inviting counsels when they knew they had enough powers to correct this immediately and kill the speculations before they arose.
So, having said the above, it is important to note that during this meeting, the counsel to INEC, Alfred Eghobamien was still telling the political associations to comply with INEC's new order of fresh applications, even as this is clearly unconstitutional and in view of the Supreme Court judgment unnecessary. This is effectively an invitation to join INEC in illegality and as is to be expected, Gani and the associations have appropriately declined this. Obviously, INEC is preparing another vile package of excuses to avoid doing the only thing left for it to do now.
It is also instructive to note that in its letters dated 22 June 2002, pursuant to Section 74(7) Electoral Act 2001, stating reasons for refusing the association's registration, INEC gave two clear grounds why their applications were turned down: (a) failure to establish offices in at least twenty-four (24) states of the federation; and (b) failure to show evidence of lawful/illegal occupation of office accommodation in twenty-four (24) states. These two reasons were under guideline No 3(h), which was the basis of Relief Nos (9) and (10) granted by the Supreme Court to the associations, declaring those requirements as "unconstitutional and therefore null and void".
The implication of this is clear - the Court has removed INEC's fully stated official excuses for refusing to register the associations. At this stage, let me relate something that is happening now and show how fundamental the issue Gani and the others are pursuing now represent part of the solution to a delicate national problem. Since this past week, we've all donned our sackcloth. We mourn the unlawful killings that took place in Kaduna and Abuja in the name of protest against some opinion in some newspaper and the now-botched hosting of the Miss World in Nigeria.
The criminal puts on the religious mask and mows down reason, the government joins the criminals in the name of upholding the law, arrests the editor and the organisers of Miss World promptly spoke with their legs and pronto, they're off to London. The grimaces around the world get grimmer and their upturned noses may just be saying no less than that we're less human! Anyway, the point of this story is this: a proper political pluralism, championed by political parties would have put an end to the whole debacle. How? Because ultimately we all know that this so-called religious riot has little to do with religion, it is more political. Political pluralism would have ensured that no one party or group would have been able to impose its will this much without having to fight the ideological battle right in its own backyard.
If for instance, the Balarabe Musa's PRP and Yusuf's Movement for Justice and the rest of the associations championed by Northerners or led by them had been registered, it may have been more difficult for the present establishment voices in the North to raise miscreants this easily. It would have simply ensured that the battle in the North would not be as straightforward as the conservative arm of the Nigerian establishment in the North flattening out the radical Muslims' leadership, stealing their agenda and their fried-brain followers and wrecking the nation with these at will.
I hope to talk more on this in another article, but for now, I'd wish that we consider true political parties' proliferation as one means of breaking the back of the religious fascists and bloodsuckers who hold our inept government hostage, and, invariably, our nation too. So, Nigerians must at this stage start asking if INEC can be trusted to do the right thing, bearing in mind its antecedents and what should be our own genuine and reasonable expectations at this stage of our history and national development, knowing how recurrently we've let such opportunities as this one slip. Abel Guobadia, Anenih's bosom friend and the latter's recommendation to Obasanjo for INEC chairmanship must be watched closely. His chummy-chummy relationship with Obasanjo and the executive ought to give cause for concern.
How can we trust an INEC Chairman who goes in the Presidential entourage, even to places and functions that have nothing to do with his office? We have watched him and his crew stew in financial scandals; we've seen him botch the voters' registration exercise; we've seen him appoint partisan card-carrying PDP people into electoral commissions to oversee INEC in the states; he was part of the background crew cooking the forged Electoral Act 2001 and today he's suing to nullify the Electoral Act 2002 passed in place of the former, especially the aspect dealing with staggered elections, simply because it does not favour his master, General Olusegun Obasanjo.
And now, after promising to register the parties after the Supreme Court judgment, he's turned full circle parroting the lines of Agabi and Obasanjo. If this is how to show independence and non-partisanship, it's sure a curious and questionable way. As we survey the wreckage Mr Guobadia's kind and their masters have either inflicted or allowed to be inflicted on the rest of us, perhaps, it's time Nigerians start actively asking themselves if they can really trust this man and indeed, everyone of those crooked fingers working to stop the necessary process of registering new parties to give us genuine alternatives and ultimately enrich our political experience.
This is not about partisanship; but about standing up for the one and only underlying principle of a true democracy, which is the defence of everyone's freedom to organise under a banner or idea in order to achieve that democracy. And if there's any lesson to learn from others, we may look no further than to Britain, where people woke up on Sunday, November 24 2002 to the news that a new breakaway party from the Tories is to be formed. No one will ask them unnecessary questions; when they are ready all they need is their manifesto and they'd be up and running.
It is not quangos that determine whether a party lives or dies; it is the reality of legitimate and civilized political competition. And that is the democracy we speak about. Therefore, we must be careful - if we allow the rights of others to be trampled today, perhaps because of our partisan loyalties or just plain apathy, beware, 'cause your own rights and/or those of whom you love and care for may just be in line to feel the studded boots. It's our call.
Nov 2002
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