Judicial Intervention on the Activities of Political Parties in Nigeria: The Contending Perspectives – O.D Edieya

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INTRODUCTION

The issue of intervention of the judiciary on the activities of political parties in Nigeria has sparked much controversy in recent years. The topic of this paper ‘Judicial intervention on the activities Of Political Parties in Nigeria: The contending perspectives’ is quite apt, considering the fact that Nigeria is set to hold another round of general elections in 2019. The controversy always leading to the invitation of court in these regard is usually attributed to the fallout from elections/tenure of party executives, nomination/sponsorship of candidates and suspension/expulsion of the membership status of some actors of the political parties.

Political parties are generally considered to be voluntary associations. Being voluntary associations, they are deemed supreme over their affairs. The conduct of such affairs is not usually subject to the jurisdiction of the court. But it does seem that there are instances where the conduct of political parties becomes amenable to judicial supervision. The courts have not succeeded in clearly delineating such circumstances if at all they exist.

This paper therefore sets out to examine the organizational autonomy of political parties with a view to ascertain whether the courts in practical terms exercise any jurisdiction over political parties. This is best determined by the amenability of political parties to judicial decisions affecting them.

 POLITICAL PARTY AND COURTS

Generally the courts are reluctant to interfere in the affairs of political parties. Numerous views have been expressed on what constitutes the internal or domestic affair of a political party, and whether such domestic or intra party affairs are justiciable or can be subject to intervention by the Courts. Fortunately judicial authorities are available to provide a road-map in guiding the mission to ascertain the dichotomy between the domestic or internal affairs of a political party necessary to preclude the transactions that will entitle an aggrieved member to seek redress in the Court[1].

The view that political parties are supreme over their affairs and should therefore not be tempered with was adopted in the case of Onuoha v. Okafor[2].In that case, the plaintiff together with other members of the parties contested the primary election of the Owerri Senatorial District, Imo State of Nigeria under Nigerian Peoples’ Party (NPP) after paying the required non-refundable fee and was declared the winner since he had the highest number of votes. The third defendant who also participated in the Primaries alleged irregularities in the election process. The party therefore appointed a panel to investigate the allegation where the contestants were given opportunity to be heard. The party resolved the issue in favour of the third defendant and the plaintiff brought an action asking the Court to nullify the Panel’s decision and declare that his nomination was valid and subsisting and an injunction restraining the party from submitting the name of the third defendant or any other name to FEDECO. The Court granted the claims of the plaintiff. The Court of Appeal set aside the decision of the High Court and dismissed the claims on all the ground because in the court’s opinion, the matter was not subject to judicial review as selection of the candidate for sponsorship was the prerogative of the political parties and the decision of the party was binding on the members. The Supreme Court unanimously affirmed the decision of the Court of Appeal on the ground that the matter falls under political question not subject to judicial review. Per Irikefe, J.S.C[3] summed it up as follows:

The matter in controversy in the appeal is whether a court has jurisdiction to entertain a claim whereby it can compel a political party to sponsor one candidate in preference for another candidate of the self-same political party. If a court could do this, it would in effect be managing the political party for the members thereof. The issue of who should be a candidate of a given political party at any election is clearly a political one, to be determined by the rules and constitution of the said party. It is thus a domestic issue and not such as would be justiciable in a court of law[4]

The ‘no go area’ approach of court on internal dispute of the political parties dates back to the Nigeria Second Republic in the case of Alhaji Balarabe Musa (Governor of Kaduna State) v. Peoples Redemption Party;[5] where the applicant, a state governor, and a member of the above party, together with eight other governors, had been attending joint meetings in various parts of the country to discuss common problems. His party objected to these meetings and passed a resolution forbidding the applicant from attending. The applicant applied under Section 42 of the 1979 Constitution of Nigeria[6] for an order to quash the resolution as constituting an infringement on his fundamental rights as contained in the Constitution. The court dismissed the application saying in effect that it had no jurisdiction to entertain the application at all. Adefarasin, C.J. summed it up as follows:

It is my view that it is still open for the applicant to attend any meeting he may wish and no one may stop him. But, so far as the party is concerned, it is to have the right to discipline its members. As a voluntary association it has the right to lay down its decisions even when they are unreasonable. They should be obeyed or the member in disobedience is entitled to quit. The party is in its own right supreme over its own affairs

It is pertinent to observe that the court did not adopt the supremacy of a party over conduct of its affairs as completely precluding judicial intervention in the above case. Adefarasin, C.J. went further to qualify his opinion by saying ‘unless it has violated its own constitutional provisions the court will not interfere’.

The Supreme Court of Nigeria reiterated this critical issue of non-intervention approach more in the case of Dalhatu v Turaki[7]  In that case, the All Nigeria Poeples’ Party (ANPP) scheduled all its primary elections to hold on 3rd of January. 2003. The primary of Jigawa was to hold in Dutse, Jigawa State. A committee with chief Nnoruka as the Chairman, Hajiya Nihibi as a member and Arc Joseph as secretary conducted the screening and primary election in Kano in which the first defendant did not take part. Only the appellant did and was declared the winner by the committee. Meanwhile, another primary election was conducted in Dutse in which the 1st defendant participated and the appellant did not. The 1st defendant was also declared as the winner. ANPP recognized the last primary election and the appellant brought an action challenging the recognition in Court. The High Court after holding in favour of the plaintiff advised the Supreme Court to re-amend its position on the internal affairs of the political parties. The Court of appeal allowed the appeal against the judgement of the lower Court. An appeal to the Supreme Court was dismissed. Per Katsina-Alu, J.S.C[8] put it thus:

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By the authority of Onuoha v. Okafor[9], the trial High Court had no jurisdiction to entertain the matter. The issue of who should be a candidate of a given political party at any election is clearly a political one to be determined by the rules and constitution of the said party. In other words, it is a domestic issue and not such as would be justiciable in a court of law. This is so because the power and the right to nominate and sponsor a candidate to an election are vested in a political party and the exercise of this right is the domestic affair of the party

Per Kalgo, J.S.C[10] further remarked as follows:

The right to sponsor a candidate by a party is not a legal right but a domestic right of the party which cannot be questioned in a court of law. The political party qua political organisation has discretion in the matter, a discretion which is unfettered; in the sense that a court of law has no jurisdiction to question its exercise one way or the other. The moment a court goes into such a domestic affair of the party, it has involved itself in nominating a particular candidate, a jurisdiction which a court cannot exercise. While a court of law has the jurisdiction to declare a particular candidate as the winner of an election, a court of law cannot be involved in the domestic affair of nomination of a candidate or candidates in primaries.

The Court in trying to justify the rationale for the principle of law that court cannot be involved in the domestic affairs of the political party was of the firm view that since persons have freely given consent to be bound by the rules and regulation of the political party, they should be left alone to be governed by such rules and regulations. In other words, persons have freely mortgaged their consciences to a situation; a court of law should not intervene.

While berating the trial judge in Turaki’s case over his call on the Supreme Court to amend its position on issues of domestic affairs of political parties, the Supreme Court stated thus:

Now, the case of Onuoha v. Okafor (supra) was brought to the attention of the trial Judge. Regrettably, for reasons best known to him, he chose to ignore it and proceeded to decide as follows:  ‘There is no doubt that the court has no duty to nominate or elect a candidate for a political party, as it cannot campaign for the candidate. It is the constitutional responsibility of the concern party to campaign for their chosen, candidates but where as in this case the party had encouraged and permitted an individual to strive toward the realization of his constitutional right as a citizen to vote and be voted for through the acceptance of prescription fee, processed nomination forms, and to further screen him for that purpose to stand for the election and win, yet the political party is allowed to turn its back against all the obvious solid grounds that entitles him to be the candidate of the party now for the post he is seeking, my view is dishonest and fraudulent, and contravenes item 15(5) of the 1999 Constitution… The purported recognition of the 1st defendant by ANPP is illegal going by the evidence before the court. On the other hand evidence revealed and this court is satisfied that the declaration of PW1 Nnoruka, the appointed chairman of the Primaries Election Committee for Jigawa State in which he genuinely returned the plaintiff as the winner at the 6th defendant (INEC) has the opening to accept the plaintiff as the rightful candidate for the gubernatorial candidate for Jigawa State under the platform of the ANPP’. He concluded his judgment thus:  ‘I also with the great respect call on the Supreme Court to re-amend its position on the internal affairs of political parties’. The conduct of the learned trial Judge I. U. Bello is to say the least most unfortunate. This court is the highest and final court of appeal in Nigeria. Its decisions bind every court, authority or person in Nigeria. By the doctrine of stare decisis, the courts below are bound to follow the decisions of the Supreme Court. The doctrine is a sina qua non for certainty to the practice and application of law. A refusal, therefore, by a Judge of the court below to be bound by this court’s decision, is gross insubordination (and I dare say such a judicial officer is a misfit in the judiciary)[11].

It is humbly submitted that the rationale for this principle of the law is very difficult to justify in the context of political parties’ activities in Nigeria. Although the decision of the Court is based on the position of the law at the point the judgment was delivered, the position was self inflicted by the judiciary as there was no law which precluded the court from entertaining such a matter having to do with internal affairs of the political parties. This is a good example of judicial self-limitation[12].

However, in Ugwu v. Ararume (2007)[13] there was a radical turning point of judicial approach to matters relating to the internal affairs of the political parties. In Ararume’s case the Court of

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Appeal set aside the decision of the trial Court and allowed the appeal on the ground that the trial Court failed to consider all aspects of section 34(1) and (2)[14] and that the trial Court decision does not meet the justice of the case. On further appeal to the Supreme Court, the Court rejected the argument that the Court cannot review the decision of the political party changing its candidate amounts to internal affairs of the party and held that the argument no longer has any support in whatsoever under any law in the Country’s present dispensation and the action is well justiciable. The Court relied on section 34(2)[15] which provides that any party wishing to change its candidate must give cogent and verifiable reason for doing so in going to the conclusion that where a party fails to give any reason or reasons which are cogent and verifiable, the aggrieved person has a legal right to seek redress in a competent court of law by virtue of section 6 of the Constitution.

In 2012 , with the decision of the Supreme Court above and the decision in Rt. Hon. Rotimi Chubuike Amaeachi v Independent National Electoral Commission[16] , the Court of Appeal in Saidu v Abubakar[17] was of the view that whether the appellant was validly nominated and sponsored by 3rd respondent/appellant in the circumstances of this matter is a very serious constitutional issue actionable in connection with the election either at pre-election stage or after the election depending on when the constitutional disability came to the knowledge of the party seeking to challenge the qualification of the contestant relevant to the office of the declared winner of the election. The Court noted that this must be so because it is not unusual in this country for a person who seeks to challenge some decisions of political parties to be expelled from the party.

There seems to be merit in this latter position. Because it would be completely absurd to allow a party to make and enforce unreasonable decisions on the basis that it is supreme over its own affairs. But the issue of unreasonableness puts the court in the difficult position of determining what is unreasonable in the rules of a party. It also puts into perspective the voluntary nature of a political party- suggesting that the unreasonableness of a party’s rule is not for the court to discuss since the members of the party voluntary acceded to rules of the party.

With the advent of the Electoral Act 2010, the Supreme Court and other courts in Nigeria had the opportunity to pronounce on this contentious issue arising from the internal disputes of political parties by establishing the limited circumstance court can intervene in internal or domestic affairs of political parties in Nigeria. One provision in the Electoral Act that usually give the court the window to exercise jurisdiction in political party affairs is  section 87(9) of the Electoral Act, 2010 (as Amended)  which provides as follows:

 (9)   Notwithstanding the provisions of the Act or rules of a political party, an aspirant who complains that any of the provisions of this Act and the guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a state or FCT for redress

The purport of the above is that an aspirant is a person who participated in the party primaries; a person who has been screened and cleared by his political party to participate in the primaries. Therefore until a prospective plaintiff is screened, cleared or nominated by his party to contest his party’s primaries, he cannot bring himself within the purview of section 87(9) of the Electoral Act 2010 and thereby lack the locus standi to invoke the court to intervene[18].

The foregoing came to test in the recent case of Wushishi v. Imam[19]. In that case the appellant was a card carrying member of the 2nd respondent (The APC) who desired to contest nomination of the party as the gubernatorial candidate for Niger State Governorship Election of 2015. He made the necessary payments for the expression of interest and nomination form. However, the appellant was not issued with the forms to enable him participate in the party’s primaries for the nomination of its governorship candidate. Consequently, the appellant instituted an action in Federal High Court, Minna for his wrongful exclusion from the primaries. In its judgment, the trial court held that in view of section 87(9) of the Electoral Act, 2010(as amended), the appellant lacked the locus standi to challenge the outcome of his party’s primaries. It then struck out the appellant’s case. The Court of Appeal and the Supreme Court affirmed the trial court decision respectively and thereby dismissed the appeal.

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The Supreme Court[20] remarked thus:

The nomination or sponsorship of a candidate for election is a political matter within the sole discretion or power of the political party, an internal affair which is not a matter for the public domain being a pre-election matter, and therefore domestic. It is after the conduct of the party’s primary that any aggrieved contestant at the process can complain about the conduct and it is then that the courts have jurisdiction to hear such a party. A person who has not so contested has no legroom to invoke the jurisdiction of the court.

[21]The Supreme Court at P.211, Paras C-E further summed up the position as follows:

A person cannot approach the court to complain that a political party prevented him from participating in the primaries of the party since sponsorship of candidates by political parties for an election is the prerogative of the political parties concerned and the court lacks jurisdiction to interfere in such a matter which is an internal affair of the political party. In the instant case, the appellant fell in the category of those who were excluded from contesting the primaries and the court could not entertain the action. The trial court and the Court of Appeal were right to decline jurisdiction.

  • CONCLUSION

I have succeeded in establishing that political parties are amenable to judicial supervision only to a fair extent. By virtue of judicial precedent, the current position therefore is that, the nomination and sponsorship of a candidate at an election is a matter within the internal affairs of a political party and therefore not justiciable, except in the limited circumstance as provided in section 87(9) of the Electoral Act 2010(as amended), where a co-aspirant alleges that the relevant guidelines of the political party or the provisions of the Electoral Act were not complied with in the conduct of party primaries.

But what is yet to be established is what may be the likely outcome of disputes arising from the unjust abridgement/suspension of party executives and suspension/expulsion of membership status of some actors of a political party. Experience from Nigeria reveals that declarations of the court in matters affecting political parties are honored more in the breach than observance. This has left party members squarely at the mercy of their party.

Given the above consideration it is understandable why the courts shy away from actions involving political parties. More often than not, judgments of the court are simply pyrrhic victories- in that the person who got judgment against the party is not in a position to enforce it. To think that most judicial decisions affecting political parties end this way, leads to the inevitable conclusion that judicial intervention on the activities of political parties is somehow mythical. It is therefore submitted that the courts have the power to intervene in the activities of political parties beyond the scope of nomination and sponsorship[22]. It would be completely absurd to allow a party to make and enforce unreasonable decisions on the basis that it is supreme over its own affairs. It is arguable that there has been no law which expressly barred the courts from reviewing matters that bordered on internal affairs of political parties. This is a self-restraint measure by the court because the courts are of the view the matters are political in nature and therefore not fit for judicial intervention.

O.D EDIEYA, ESQ, LL.B, Hons (Ekpoma), B.L (Legal Practitioner at Samuel O. Zibiri, SAN & Co) edieyadavidson@gmail.com, 08055241970

[1] See PDP & ORS v. OGUNDIPE & ORS (2018) LPELR-43887(CA) Per OSEJI, J.C.A. (Pp. 36-45, Paras. B C)
[2] (1983) LPELR-SC.59/1983, parallel citation at (1983) 14 NSCC 494
[3] At Pp. 35-36, Paras. E-A
[4] Underlining is mine for emphasis
[5] (1981) 2 NCLR. 734
[6] Now Section 40 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) which provides for Right to peaceful assembly and association.
[7] (2003) LPELR-SC.31/2003; parallel citation at [2003] 15 NWLR (Pt.843)310
[8] (2003) LPELR-SC.31/2003 (P. 17, paras. A-C)
[9] Supra
[10] (2003) LPELR-SC.31/2003 (P. 36, paras. A-E)
[11] Bello, J.S.C. in Dalhatu v. Turaki (Supra)
[12] This submission has also been posited by Shamrahayu, A.A. and A.O. Sambo in ‘Internal Affairs of Political Parties and Judicial Review: An Expository Study of the Experience in Nigeria and Malaysia’, 2011, Vol. 7(13) Journal of Applied Sciences Research, Pp. 2257-2265
[13] (2007) LPELR-SC.63/2007; parallel citation at (2007) 12 NWLR (Pt.1048) 365
[14] Electoral Act, 2006
[15] Electoral Act, 2006
[16] (2007) LPELR-SC.252/2007; parallel citation at Amaechi v. I.N.E.C. (No.3) (2007) 18 NWLR (Pt.1065)
[17] (2012) LPELR-SC.14/2012 (CON)
[18] This is the view of the court in Daniel v. INEC(2015) 9 NWLR(Pt. 1463)113; Lado v. CPC(2011) 18 NWLR(Pt.1279) 689; Emenike v. PDP(2012)12 NWLR(Pt.1315) 556; PDP v. Sylva(2012) 13NWLR(Pt.1316) 85
[19] (2017)18 NWLR (Pt.1597) P. 175
[20] Supra at (Pp 208-209, Paras. H-B)
[21] (Underlining is mine for emphasis)
[22] As captured under section 87(9) of the Electoral Act

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