My attention has been drawn to the judgment of the Federal High Court delivered by Hon. Justice Lifu where the Court ordered the Independent National Electoral Commission to deregister five political parties based on the Provision of section 225A of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

Without necessarily reviewing or critiquing the judgment and other extant position of the Supreme Court on the subject, it is my considered view that the provision of section 225A is undemocratic and should be expunged from the Constitution. The said section 225A in highlight is to the effect that if a registered political party in an election cycle of a particular year fails to meet a certain threshold in terms of votes secured by the political party, the Independent National Electoral Commission (INEC) shall have power to deregister such party.

Constitutional framework

The most popular definition of democracy is that it is a government of the people, by the people, and for the people. In the face of this definition, citizens exercise their choice by voting for persons who would then form the government of the day. Accordingly, in line with the tenets of the Constitution, a person can only be elected into governmental office in Nigeria if he or she is a member of, and sponsored by, a political party. See section 131(c) and 177(c) for instance. The idea of being a member of a political party bears its foundation on the provision of section 40 of the same Constitution, as every citizen is accorded the fundamental right to freedom of association, including the formation and belonging to a political party.

Interestingly, the said section 40 bears a provision which recognizes the power of INEC to determine whether or not to recognize a political party. The extent of the effect of this provision must however be limited to circumstances preceding the registration of such a political party, including the determination of whether or not the name and logo of the political party is not offensive, inciteful, or passes off on that of an existing party.

It is also instructive to note that since Nigeria returned to civil dispensation in 1999, Nigeria has practiced a multiparty system and, as at the time of the order for deregistration by the Federal High Court, there were 22 registered political parties in Nigeria.

Grounds for expunging Section 225A

Bearing the foregoing in mind, and juxtaposing sections 40, 131(c), 177(c) and other similar provisions on the one hand, with section 225A on the other hand, the call for expunging or deleting section 225A from the Constitution is anchored on the following:

1.       The failure of a political party to secure a certain performance threshold in one election cycle does not mean that the party cannot do better in another election cycle. This would depend on the popularity of the candidates the party sponsors in each election cycle, and it is objectively in the hands of voters, but not the party, to determine the outcome. Take for instance Accord Party that has the incumbent Governor Ademola Adeleke as its Governorship candidate, and who appears to be loved by the people of Osun and for whom a large number of citizens would be willing to cast their votes. Invoking section 225A at the 11th hour by either INEC, an onlooker, or a political opponent would not serve any constitutional benefit; it would instead be a means of robbing citizens of their democratic choice, as it would already be too late for the Governor to canvass for votes under another political party.
2.     Deregistration of a political party should be based on an infraction that relates to a basis for which INEC should be able to exercise its power of refusing recognition in the first place, as anticipated in the proviso of section 40 of the Constitution. In other words, a party should only be deregistered if it does anything that would have ordinarily empowered INEC to refuse registration at the onset. From the onset, it never could be said what volume of votes a party would secure in an election cycle. Therefore, each election cycle should be a fresh start for every political party that has met the requirement for registration.
3.     Section 225A runs contrary to section 40 of the Constitution which already recognizes a right to the formation of a political party, because the deregistration of a political party on failure to meet threshold of votes bears nothing on a basis for a valid and legitimate association. I am not oblivious of the positions of the appellate Courts in several cases, particularly the Supreme Court, which has held that deregistration by INEC is not unconstitutional and not contrary to section 40. However, there is always a need to take a second and even a further look at a provision, and I believe that a further cursory look would reveal that, based on the limit of the provision to section 40, it can be said that section 225A should give way.
4.     The provision of section 225A, as deployed in the recent decision of the Federal High Court, appears to have been invoked by an entity which has no locus standi. In my view, not even the Attorney General of the Federation should have locus standi to compel INEC to deregister a party, as the provision of section 225A accords INEC a discretion which it may choose to exercise based on its findings in line with the threshold. I am not oblivious of the fact that the provision uses the word “shall”. In this regard, it is settled that the word “shall” would mean “may” where the entity to whom the provision applies is accorded power to act or not to act.
5.     Section 225A ought to function as a shield rather than as a sword. This means that only INEC should be in Court to defend the deregistration of a political party, rather than the section being used by an external entity to compel INEC to carry out deregistration.
6.     More importantly, although this was perhaps not raised at the trial court and may not have been considered by the appellate courts, the timing for raising the issue of failing to meet the threshold from the last election cycle should be dealt with under the Public Officers Protection Act. This means that the political parties being sought to be deregistered can raise the issue of statute bar against a suit seeking to compel INEC to deregister them, if INEC had not done so within three months after the last election cycle. This would be in addition to raising the issue of locus standi, but it may not be used as a defence if INEC itself chooses to exercise its power to deregister at a time beyond three months, as section 225A does not provide a time limit for INEC to exercise the power to deregister.

Conclusion and recommendation

For the foregoing reasons and exposition, it is my considered view that section 225A does not have any utilitarian value and can become a tool for anti-democratic practices to be perpetrated by a party that apprehends that a party with a popular candidate would do better than theirs at the poll. This appears to be the background for the suit leading to the judgment of the Federal High Court.

I share strongly in the view of my learned partner, Henry Kelechuckwu Eni-Otu Esq., that a way to reverse the decision of the Federal High Court is to raise the issue of statute bar at the appellate courts to strip the Federal High Court of jurisdiction. I strongly add that the issue of locus standi can also be raised and relied upon. This represents a short-term attempt at a remedy for the political parties that have been ordered to be deregistered.

A more lasting solution is simply to delete section 225A of the Constitution, or at least amend the same to read to the effect that INEC shall deregister a political party that fails to secure the stated threshold from an election cycle within three months after the conclusion of the election. If INEC fails to do so, such party shall continue to function as a political party, while INEC shall be precluded from deregistering such party.

 Ajibola Bello is the Deputy Managing Partner at Law Corridor, Abuja.

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