The Money Game and Democratic Choice, By Femi Falana
In line with democratic principles the political space in Nigeria has been liberalised by the Constitution. To ensure some degree of popular participation in the electoral process political associations which intend to transform into political parties are not required to meet stringent conditions. In the same vein, candidates contesting elections are not obligated to pay nomination fees to political parties. Once they meet the conditions outlined in the Constitution they cannot be disqualified for failure to pay outrageous nomination fees imposed on them by political parties. To discourage the monetisation of the political system the Electoral Act has fixed the maximum amount of election expenses to be incurred by each candidate.
Since the restoration of civil rule in 1999, many political parties have extorted billions of naira from candidates for the purchase of expression of interest or nomination forms. Although the PDP fixed a nomination of N20 million per presidential aspirants, two aspirants who alleged that they paid the fees were told that the Peoples Democratic Party (PDP) had printed only one nomination for President Goodluck Jonathan, a co -aspirant. So far the N40 million allegedly paid by the two aspirants have not been refunded to them.
In criticising the nomination fee of N27 million payable by presidential aspirants of the All Progressive Congress (APC), General Mohammadu Buhari (rtd) disclosed that he had to take a bank loan to pay the nomination form. Perhaps out of political exigency the leading APC presidential aspirant has decided not to challenge the constitutional validity of the exorbitant nomination fees.
In order to constrict the democratic space the Independent national Electoral Commission issued some guidelines for the registration of political parties pursuant to the repealed Electoral Act 2001. No political association could comply with the guidelines without spending over N2 billion Naira. The guidelines were challenged in Independent National Electoral Commission v Balarabe Musa (2003) 10 WRN 1. Upon a critical consideration of the guidelines the Supreme Court upheld the administrative fee of N100, 000 but struck down the other guidelines such as a register showing the names, residential addresses of members in at least 24 states, offices with list of staff, operational equipment and furniture in at least 24 states etc. The outrageous guidelines were annulled on the ground that they had enlarged and added to the provisions of section 222 of the Constitution which has laid down six conditions for the registration of political parties.
In his contribution to the epochal judgment of the highest court Niki Tobi J.S.C (as he then was) held that Section 40 of the Constitution “vests in every person the right to freely associate with other persons and belong to any political party, an Act of the National Assembly or a guideline of the 1st appellant (INEC) ambitiously trying to take away the rights guaranteed in the section cannot stand. This is because the Constitution is supreme.” In 2003, the move by the INEC to collect nomination fees running to several billions of Naira from candidates contesting elections throughout the country was declared illegal by the Federal High Court. In several states the high courts have set aside the guidelines issued by state electoral commissions for the production of tax clearance certificates and payment of nomination fees by candidates contesting local government elections.
Notwithstanding the clear judicial pronouncements on the matter the state electoral commissions have not ceased from collecting nomination fees from candidates who contest local government elections. In NCP v Ekiti State Independent Electoral Commission (unreported Suit Number HAD/240/2010) it was held by the high court that the demand for the production of tax clearance certificates and payment of nomination fee by candidates contesting the 2004 local government election in the state was illegal and unconstitutional. The judgment was upheld by the Court of Appeal in favour of the National Conscience Party (NCP). Similar verdicts had been handed down by the high courts in several states in the country.
In each of the cases the decision of the court was anchored on the relevant provisions of the Constitution on the eligibility of candidates to contest elections.
Since the conditions stipulated in the Constitution do not include payment of nomination fees and production of tax clearance certificates the courts have never hesitated to strike them down. Therefore, the collection of nomination fees from candidates by political parties, which is an additional qualification, is illegal and unconstitutional as political parties have no power to add to or subtract from the constitutional prerequisites which candidates must possess to qualify to contest elections in Nigeria.
It is trite law that while every citizen is entitled to freedom of association they cannot be forced to be a member of any political party. To that extent, anyone who is not satisfied with any of its guidelines or rules is at liberty to quit. But since political parties are regulated by the Constitution and the Electoral Act they cannot be allowed to infringe on the fundamental rights of their members. Under section 131 of the Constitution any Nigerian citizen who has attained the age of 40 years and is a member of a political party and sponsored by that party and has been educated up to secondary school level is qualified to contest for presidential election in Nigeria. Section 87 of the Electoral Act which provides for the nomination of candidates by political parties has not prescribed that aspirants shall pay any fee. In the circumstance, political parties may only be permitted by law to charge administrative fees.
In Bullock v Carter 405 U.S 134 (1972) the appellants who sought to become candidates for local office in the Democratic primary election challenged in the District Court the validity of the nomination fees up to $8, 999. It was held that the fees contravened the Equal Protection Clause of the 14th Amendment. It was the view that “By requiring candidates to shoulder the costs of conducting primary election through filing fee by providing no reasonable alternative means of access to the ballot, the State of Texas has erected a system that utilizes the criterion of ability to pay as a condition to being on the ballot, thus excluding some candidates otherwise qualified and denying an undetermined number of voters the opportunity to vote candidates of their choice.”
Since the right of every citizen to participate in government of their country, either directly or through freely chosen representatives is guaranteed by Article 13 of the African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap A9) Laws of the Federation of Nigeria, 2004 the guideline of a political party for payment of skyrocketing nomination fees which is capable of excluding indigent candidates from the political process is illegal. More so, that every citizen is entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the African Charter without distinction of any kind such as fortune or social status.