INEC has no power to de-register political parties —Adegboruwa
A Senior Advocate of Nigeria and human rights lawyer, Ebun-Olu Adegboruwa, speaks with DARE ADEKANMBI on the de-registration of 74 political parties by the Independent National Electoral Commission (INEC), how sanity can be restored to the electoral process, the 2023 presidential contest, among other issues.
THE Independent National Electoral Commission (INEC) has stirred up a controversy with the deregistration of 74 political parties. Some have questioned the power INEC relies upon to take that decision. As a senior lawyer, what do you make of the decision?
I believe that the constitution grants an express right to freedom of association and assembly. That freedom is the one that gives INEC the power to register political parties. To de-register political parties for the reasons that they did not win any election is a misconception of the freedom of association. The freedom of association is for the protection of the interest of members of the political parties. That interest can be against gender discrimination, it can be against environmental pollution or any other interest. A political party does not need to contest election. Indeed in the United States, there are several other political parties apart from the Democratic Party and the Republican Party that do not win elections and are not so known at all and then there are also independent candidates as well. I think it is a misconception of law for INEC to insist that political parties that have not won elections should be de-registered. There is no such power conferred on INEC. This has been tested up to the Supreme Court when the electoral commission claims to de-register the political party of Alhaji Balarabe Musa. Chief Gani Fawehinmi took the case to the Federal High Court and pursued it up to the Supreme Court which declared clearly that INEC does not possess the power to de-register parties.
I am aware that the National Assembly has amended the Electoral Act purporting to confer power on INEC to audit parties that did not win election and to cease to give them recognition. From my own little knowledge of law, the Electoral Act is inferior to the constitution. If the provisions of the Electoral Act are inconsistent with the constitution, the latter has supremacy over the former and any other law that is inconsistent will be null and void to the extent of that inconsistency. So to that extent, INEC can’t rely on the Electoral Act to supplant the constitution to de-register parties. I urge all the political parties that have been de-registered to go to court and challenge that decision and relying on the case of Musa versus INEC, I am sure they will get victory.
The argument from INEC has always been that the number of parties is unwieldy and poses logistic challenges to the commission while conducting an election. For instance, some ballot papers are so long because INEC has to put the logos of all the parties participating in an election in an area. You will recall that INEC has had to postpone national elections twice between 2011 and 2019. Don’t you see some merit in this argument?
That argument is indeed an indictment on INEC because the power to register political parties is at the discretion of INEC. It is INEC that was colluding with politicians to be registering portfolio political parties. There are still so many political parties that are in the cooler which politicians in the major parties, when they have fallen out with their godfathers, will just go and bring out certificates of registration that INEC has issued to them for those parties. So, it was INEC that caused this problem in collusion with the politicians. So, the blame should go back to INEC for registering mushroom and portfolio parties, parties that have no viable means of organisation. Once you have registered them, you can’t de-register. INEC should wield the stick when auditing the application for registration as a party. The logistic problem is actually created by INEC and it is done deliberately in collusion with politicians who always go back to the portfolio parties to be able to spring a surprise against a major party. So, it is INEC’s problem and it can’t blame anybody but itself.
But why would INEC fail to register a party if the promoters of such party meet all the criteria for registration?
The constitution clearly states that registration is discretionary and INEC is having a misunderstanding of its power under the law. The area INEC has discretion is in registration of parties and once it has registered parties, it has no discretion to de-register them. So, the misconception is as to the power of INEC. Even if a group of people applying to be registered as a party have offices in all the states of the federation, it is still within the discretion of INEC whether to register them or not. The creation of 98 political parties or thereabout is purely a matter of wrongful exercise of discretion on the part of INEC. It is a misconception for INEC to think that once a people meet the criteria for registration a s a party, registration is automatic. The law does not grant automatic registration. It gives discretion to register and once that registration has taken place, then there is no discretion to de-register.
What advice would you give INEC on how to tidy up the electoral process to overcome logistic challenge and how you think necessary legal framework will assist the commission to enhance the delivery of credible elections to Nigerians?
If INEC wants to sanitise the electoral space, it should begin to exercise its discretion to register parties judicially and judiciously. All this arbitrary registration to satisfy political interest should cease. Secondly, if INEC thinks that the existing parties are too unwieldy, it can lobby the National Assembly to amend the constitution to confer power on it to de-register parties. In the alternative, it can approach the court to seek an order to strike out the names of political parties from its register and give reasons for so doing. These are the options available to INEC. But until the constitution is changed or there is a court order de-registering a political party, it can’t be done administratively from the office of INEC. It is too much power in the hands of the chairman of an electoral body to annul an association or to cancel the right of freedom of association which is granted constitutionally.
One of the legal instruments that can greatly assist INEC to do a good job is the Electoral Act. In the build up to the last elections, signing the amended version of that law became a political issue between President Muhammadu Buhari and the leadership of the eight National Assembly, with the former refusing to assent the document on three occasions. Would you advise that the current National Assembly begin the process of re-engineering the act now?
With due respect, I believe President Buhari is playing politics with the sanitisation of the political space. He has repeatedly been telling us he wants to leave a legacy of a sane electoral system. It has been a matter of speaking, but not acting. This is because it was immediately after he made this comment of ensuring sanity in the electoral system that the opportunity confronted him in Bayelsa and Kogi states. Wehave never seen in the electoral history of the country where INEC is laying claim to having fake policemen in areas where people were shot in the states where ballot boxes were snatched and electoral materials were destroyed. I don’t think it was a problem of the National Assembly. It was deliberate that the president did not sign the new Electoral Act in order to give his supporters the opportunity to continue to perpetrate thuggery and violence and in order to remove electronic voting and the compulsory use of card readers and other electronic gadgets from the electoral process. As long as we continue this manual registration, people will continue to manipulate the system. It is almost a year after the 2019 elections now, the president has not done anything about it. If he does not like the bill passed by the National Assembly, there is a provision for executive bill which can be introduced by the president of the executive arm itself to show commitment to the sanitisation of the electoral system. The president himself has benefitted from the thuggery, violence and manipulation that characterise the process and he is unwilling to change that system. It is not the fault of the eight National Assembly.
What advice would you give the current National Assembly?
This National Assembly is a lame duck. It has no will of its own. The National Assembly is like a relationship of teacher and principal. If the National Assembly summons members of the executive and they don’t report and the Speaker said he would go and report to the president and can’t exercise his power under the law to issue bench warrant, what do you make of such? The current National Assembly is a rubber stamp and an extension of the office of the president. They can’t initiate an amendment to the Electoral Act because they have seen the body language of the president that he is not genuinely committed to any electoral reform. So, I don’t expect them to initiate any process for the amendment of the Electoral Act because they know that the president does not want that to happen.
But they might be interested in doing so, realising that the president’s name won’t be on the ballot after serving out his constitutionally limited two terms of office.
It is too early to say that President Buhari’s name will not be on the ballot in 2023
Why did you say that?
This is because we have just started. There are insinuations of a third term agenda and we can’t rule it out at all given all that we are witnessing in the country now. Attempt to silence the opposition, the hate speech bill, the social media regulation bill, everything is pointing towards a civilian dictatorship, a regime that wants to impose its will on the people. If you have no hidden agenda, then you should not be afraid to allow people to speak or X-ray government policies and be able to subject them to critical examination. So, when a person is asking people not to talk, he is doing something that he is not proud of. I believe there is a hidden agenda. It may be a third term. It may be a dictatorship or to impose a surrogate as successor.