Prof. Nnamdi Obiaraeri. |
INEC
registered political parties are lawful societies with clear-cut powers as
outlined under Part III (specifically sections 221, 222 and 223) of the 1999
Constitution of Nigeria as amended.
There
are over ninety registered political parties in Nigeria today.
As
unwieldy as these parties may be, as offshoots of the national Constitution
(otherwise called fons et origo or grundnorm), political parties are
additionally mandated in section 224 of selfsame Constitution to ensure that
their programmes as well as the aims and objects conform with the provisions of
Chapter II of the Constitution dealing with Fundamental Objectives and
Directive Principles of State Policy.
Membership
of a political party is voluntary and never by force or compulsion.
It
does not and should not cost an arm and or a leg to belong to a political
party.
On
the flip side, and consistent with the provisions of section 40 of the 1999
Constitution as amended guaranteeing the right to freedom of association (which
includes the right to dissociate), no one can be compelled to join a political
party or forced to remain a member of a political party.
In
the light of the foregoing therefore, it is self-evident that political
mobility is legit and constitutional subject however to certain inhibitions and
the recognised exceptions placed on serving members of the legislature from
decamping in section 68 of the 1999 Constitution of Nigeria as amended.
A
person desirous of standing election into a public office must be sponsored by
an INEC registered political party as our national constitution and electoral
laws frown at and prohibit independent candidacy.
Being
an assemblage or association of persons from diverse backgrounds for the
purpose of hunting for power via elections, a political party is bound by its
constitution.
A
political party constitution among other things regulates its organigram,
powers and duties of its different organs or officials, rights, privileges,
duties and responsibilities of members.
It
goes without saying that members of political parties are irrevocably bound by
the party constitution which they freely subscribe to on joining.
However,
it must be accentuated that the constitution of a political party cannot trump
the grundnorm or brazenly take away the fundamental rights and freedoms of
citizens as guaranteed under the national constitution and or further
enunciated under the Electoral Act as routinely amended.
Contrary
to the old thinking or archaic practices, enlightened legal reasoning (duly
supported by contemporary judicial decisions) manifest that political parties
are not private estates, personal properties or fiefdoms of select individuals
or privileged few or cabals.
A
political party is and should remain a public organisation with binding
constitution, discernible rules and regulations that must conform with the laws
of the land as these may be subjected to legal scrutiny or judicial
inquisition.
While
retaining its uniqueness and peculiarities, the activities of a political party
must be manifestly democratic in terms incontrovertibly prescribed by the
national constitution.
To
that extent, political parties may be different in their names, logos, objects
or manifestoes but they remain vehicles to actualize political freedoms and
human rights of members.
Conclusively,
political parties are not secret cults and cannot brazenly trample upon human
rights and fundamental freedoms of their members singularly or collectively.
Political
parties operate on the commanding precept of party supremacy and hallowed
regime of party discipline.
Party
supremacy means that the overriding interest of the party is bigger than
individual interests and that no one member is above the party.
Party
supremacy is buoyed up or sustained by the principle of party discipline which
requires complete or absolute obedience by party members and officials of all
lawful decisions of the party.
However,
unlike what is currently obtainable in the polity (and sadly across party
lines), party supremacy is now being equated with rule of the thumb,
dictatorship or autocracy.
Fallouts
from the recently held 2018 party primaries clearly buttress that the sublime
concept of party supremacy has been badly abused, misunderstood or misapplied
leading to toxic politics and manifestly unlawful and unjust decisions.
The
avalanche of verifiable complaints, grievances and pending litigations that
have ensued after the recent party primaries make it imperative that the
concept of party supremacy be put in proper legal perspective in order to
deepen our democratic politics.
Party
supremacy and party discipline are excellent and fantastic twin attributes that
help the party members among other things to bond together, build collective
momentum or consensus for taking or retaining power during inter party
elections, and resolve intraparty conflicts with minimum discord or acrimony.
Sadly,
the well-regarded concept of party supremacy is not exempt from the cankerworm
of abuse that has bedevilled or assailed all facets of our polity as it is now
an instrument of naked oppression and wanton intimidation.
Ridiculously,
party supremacy is taken to mean that highly placed party officers/officials
can disobey the national constitution or electoral laws or party constitution
and guidelines at will, unilaterally disregard the vote of the majority,
violently inflict political injustice on its members and refuse passionate
entreaties for redress.
By
no stretch of imagination does party supremacy authorise fraudulent party
officials to scam their members by collecting huge sums of money from aspirants/candidates
in circumstances that suggest advance fee fraud (popularly called 419) without
making refunds.
Party
supremacy does not connote unlawful disqualification of otherwise qualified
party members from contesting party elections or primaries or denying
victorious aspirants their victories in party primaries and arbitrarily doling
out "automatic tickets" to preferred aspirants some of whom did not
win or even stand for elections.
Party
supremacy does not extend to deliberate or carefully orchestrated shameful
infringement or infraction on human rights of members including denial of right
to fair hearing and or appeals.
Ignorantly
basking under the euphoria or facade of party supremacy, there are countless
established cases where the National Chairmen and or National Working
Committees of some of the political parties are now behaving like emperors,
feudal overlords and unrestrained oppressors of conquered and hopeless party
members.
This
prehistoric or primitive mentality is crude and undemocratic and should not be
so as the legal reality is that party is supreme subject to rule of law.
When
applied to a political party, the ancient revered doctrine of rule of law will
entail complete and cumulative obedience and strict observance of the provisions
of the Constitution of Nigeria as amended, the Electoral Act as amended, the
party Constitution and Guidelines made therefrom.
The
essence of multi-party democracy decreed in our extant constitution is to widen
the democratic space and further guarantee the robust enjoyment of the right to
freedom of association.
Therefore,
a political party must find itself irrevocably obligated or committed to obey
its constitution and guidelines in addition to the mandatory provisions of the
almighty Nigerian Constitution and Electoral Act.
The
jurisprudential underpinning of the concept of party supremacy is that party
members have solemnly agreed to behave as they have mutually agreed in the
party Constitution (usually lodged with INEC as a precondition for
registration) or guidelines made therefrom.
Party
supremacy is not an avenue for party members or party officials to behave in an
arbitrary or despotic manner or outside the constitution.
Under
the concept of party supremacy, every member and or officer of the party is
bound by the party constitution and lawful decisions of the party.
Hence,
no one is above the party or can be law unto himself, not even the officers of
the party.
Therefore,
the rampant cases of rascality, impunity, lawlessness, lack of internal party
democracy and trampling on citizen's rights can never be excused under the
aegis of party supremacy.
For
the umpteenth time and for greater emphasis, party is supreme if it
cumulatively obeys these tripartite instruments namely-
(a)
the 1999 Constitution of Nigeria as amended;
(b)
the Electoral Act, 2010 as amended;
(c)
the Party Constitution and or Guidelines made thereunder.
Anything
short of complying with the above irreducible minimum safeguards will not
survive rigourous judicial furnace as party members are vested with inalienable
constitutional rights to challenge illegal, unfair and unconstitutional
decisions of political parties in courts of competent jurisdiction.
It
is trite or settled that the Nigerian Constitution frowns at self help remedy.
Thus,
aggrieved citizens are encouraged by legal compulsion to approach the courts
for judicial redress instead of taking the laws into their hands.
No
matter the level of perceived injustice or ill treatment, it will go against
the grain of the concept of rule of law for an aggrieved aspirant in a party
primary to take the laws into his hands.
The
civilized opportunities afforded aggrieved party members for legal redress in
courts of competent jurisdiction have drastically reduced political killings,
political violence and associated vices.
Any
aggrieved party member is entitled to ventilate in judicial spheres subject to
exhausting internal dispute resolution mechanisms as applicable in the
circumstances of the case.
No
party constitution will be allowed to oust the jurisdiction of the courts as
that will amount to a naked and unlawful usurpation of the judicial powers of
the courts as donated under section 6 of the 1999 Constitution of Nigeria as
amended.
Hence,
under section 87(10) of the Electoral Act, 2010 as amended, a legal window
exists for an aggrieved aspirant to present a formal judicial complaint to
either the Federal High Court, State High Court or FCT High Court concerning
acts of impunity, disobedience of party constitution or guidelines or
infraction of the 1999 Constitution or the Electoral Act in the conduct or
outcome of the party primaries.
This
means therefore that without prejudice to the principle of party supremacy, in
the strictest sense (meaning stricto sensu in Latin), party primaries are not
whole and entire the “internal or family affair” of the party for which reason
party officials can behave as they please, denying aspirants their hard won
victories or give party tickets to whomsoever they like.
Relying
on section 87(10) of the Electoral Act, 2010 as amended, the court can, upon
being properly approached by a dissatisfied aspirant only, inquire into or
scrutinize the conduct and or outcome of party primary based on the party's
guidelines/constitution and making a pronouncement whether the primary
conformed with the provisions of the party constitution/guidelines and or
Electoral Act and or the 1999 Constitution of Nigeria as amended.
Upon
being satisfied that there is an intolerable legal infraction, the court can
proceed to make consequential orders and or grant reliefs for it is our law
that ubi jus ubi remedium meaning that for every wrong, the law provides a
remedy.
This
exercise of supervisory powers of the judiciary over party primaries is
expected to be solemn and sacred without being an open invitation to resolve
political disputes or torpedo the well-entrenched principles of party
supremacy.
In
the 2017 decision of the Supreme Court in the celebrated case of *UFOMBA v INEC
& ORS* (2017) LPELR-42079, the apex court declined the invitation to
intervene in “an intra-party affair.”- a concept that has been defined to mean
“A dispute between members of the party inter se, or between a member on the
one hand and the party on the other.”
It
further held that the courts have no power to compel a political party to
sponsor a candidate outside the thin and limited spectrum available under
section 87(10) of the Electoral Act as amended.
It
is a living law that all judicial powers and discretions must be exercised
judiciously and that courts are not interested in resolving political disputes
or answering political or academic questions.
This
means that the discretion vested in a court is not a power to be exercised
arbitrarily or capriciously.
Thus,
in settling pre-election or other contentious political cases, matters or
disputes, a court is expected not to allow itself to be used as an engine of
fraud or to be used to work hardship on aggrieved party members or perpetrate
injustice.
In
issuing preservative orders and or order of injunctions or delivering
judgements arising from party primaries, the court must avoid political
excursions or being used to upset the party momentum as the courts do not
resolve political disputes.
The
business of the court is to uphold the rule of law and dispense justice to the
oppressed.
An
unjust legal wrong done an aspirant or party member should not go without
redress if he properly presents it before a court regardless of party
supremacy.
This
is a delicate balance which the courts are enjoined to maintain in all
political cases.
A
vigilant court that is imbued with a sense of justice must not only dispense
justice to the parties before it, but must also protect the interest of all
necessary parties to the matter in issue.
A
court that is alive to its responsibilities must never allow itself to be used
as an engine of fraud or instrument of oppression by resisting fraudulent gang
up by mischievous party officials designed to suppress the democratic rights of
aspirants.
Party
supremacy does not connote that aggrieved aspirants must not approach the
courts for judicial succour in line with the right to recourse to judicial
redress available under the national Constitution and Electoral Act.
This
fine legal point must be emphasised very strongly because some of the parties
are already threatening to expel aggrieved aspirants or members who dragged the
party to court for perceived injustices.
This
line of thinking is a clear invitation to chaos and confusion.
An
aggrieved aspirant is well within his constitutional right to present his
grievance to the court for judicial redress.
What
is required is evidence that internal resolution mechanism or opportunity was
explored by the aggrieved aspirant to no avail and it is for the court to
determine from the welter of evidence before it whether it was exhausted or
not.
The
importance of free, fair and transparent party primary cannot be overemphasized
as an irreducible component of democratic politics envisaged under the national
constitution and electoral laws.
It
is through party primaries that candidates for the general election are
elected.
Needless
to overemphasise that a party should avail its members a level playing field
for attaining their political aspirations.
Once
the party primaries process is not transparent, free and fair, the larger
society is short-changed as credible persons are shut out from the ballot and
the voter will have little or nothing to choose from.
There
is no substitute for transparent primaries and internal party democracy even as
the parties are rueing that their dissatisfied members have taken party matters
to the courts.
Where
party members are availed a level playing field, it builds cohesion, promotes
easy reconciliation with or pacification or placation of aggrieved members,
engenders excellent team spirit and reinforces the fabric of party supremacy.
When
aspirants are put on the ballot via stolen mandate, it negates easy
reconciliation and they carry this same desperation into the general elections
leading to high incidences of electoral rigging and violence.
unfortunately,
because the 2018 party primaries have been conducted in the most fractious and
lawless manners (especially in the Governorship, National and State
Assemblies), these have led to a harvest of a deluge of litigations in courts
thereby putting additional but avoidable pressure on the already congested
workloads in our court systems.
Aggrieved
aspirants are within their constitutional rights to seek legal redress.
The
court remains not just the last hope of the common man, but the sentinel of
justice and bulwark or palisade of democracy.
Irrespective
of the temptations and allures from our politicians, the courts must continue
to insulate themselves from those dangerous overtures that compromise justice,
fair play and good conscience.
The
current situation where desperate politicians procure midnight injunctions,
"black market" or “arrangee injunctions” and compromised judgements
to suppress the democratic rights of others do not augur well for the image of
the judiciary.
With
the party primaries formally over and INEC substitution window in all genre of
offices to which parties are sponsoring candidates almost nearing the end, the
remainder remedy for aggrieved aspirants lie with the judiciary.
The
close of substitution window means that the political parties have no more
opportunity to nibble at candidature in the general election.
INEC
will definitely be bound by all lawful orders or final judgements of courts
regarding pre-election issues presented to the courts for adjudication.
We
implore the courts to continue to live up to its assigned solemn constitutional
responsibilities and societal expectations as the last hope of the oppressed.
We
encourage our politicians to play democratic and decent politics while party
members and officials are duty bound to recognise that party supremacy is not
cast in steel as it is subject to rule of law.
A
new normal is possible!
Prof
Obiaraeri, N.O., Ph.D (Law) is a former Commissioner for Information, Imo
State.
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