PARTY NOMINATION FEE: IT IS UNCONSTITUTIONAL

September 2, 2018

It tastes bitter to swallow the idea that the All Progressives Party whose Presidential candidate, General Muhammadu Buhari, had to be helped to pay N25million Nomination fee in 2014 is now toying with the idea of prescribing very exorbitant and unfair fees for aspirants to all elective offices.

The party had during the week proposed N1m for State Assembly, N3. 3m for House of Representatives, N8.5 for Senate, N22.5m for governorship and N55.5m for presidential nomination forms.

Mr Timi Olagunju, a technology/constitutional lawyer, himself an aspiring federal legislator says the figures quite apart, party nomination fee for aspirants is even unconstitutional.

His essay titled “Party Nomination Fee for Aspirants is unconstitutional: INEC, SERAP, NBA Act Now!” takes my blogspace this morning.

“Party Nomination Fee for Aspirants is unconstitutional: INEC, SERAP, NBA Act Now!”
by

Timi Olagunju

Recently, political parties released the nomination fees for aspirants desiring to run under their platform for offices in the 2019 election, and if you noticed, the outrageous figures would make one have a fiscal throw up. Even the parties whose electoral chances requires ‘innovative struggle’, are not left out in the craze to monetize nomination forms. On seeing the figures on the various parties, I asked myself some important questions: ‘what is Independent National Electoral Commission (INEC) seeking to achieve by allowing political parties collect nomination and letter of intent fees? What are these fees by political parties for, and why vary from one party to another arbitrarily? If any administrative work is to be done, shouldn’t INEC be the one doing that – what administrative work are the parties really doing?

As an aspirant for the Federal House of Representatives in Ibadan North and a legal practitioner, I decided to employ my interest and legal research skills in conducting an inquiry into the constitutionality of the whooping nomination fees charged aspirants by Political Parties, most running into millions, and which is overlooked by Independent National Electoral Commission (INEC). The questions for which I sought and found answers included: Is it legal to collect nomination fees from ‘aspirants’? Is it legal to collect nomination fees from ‘candidates’? What laws guide the operation of political parties in collecting such fees and elections in Nigeria, if any?

In dissecting these three issues, let’s define an aspirant and a candidate; two often used terms, but meaning different things. An aspirant is ‘a person who has “ambition” to contest an election’. A candidate is ‘a person already nominated and passed the legal condition precedent to run for an elective office’. Therefore, an aspirant in a democracy is yet to qualify to run but desires to, whereas a candidate qualifies to run for an elective office in an election; which means, an aspirant graduates into becoming a candidate, and a candidate who wins become elected.

Now, is it legal to collect nomination fees from ‘aspirants’, or candidates? No, it is illegal and unconstitutional to do so in Nigeria, based on the laws that guide elections. You may wonder, then why do we have it? To that, I must admit that we have become a society where lawlessness is lawful. Let me explain the position here. For every election in Nigeria, what guides us include: the 1999 Nigerian constitution (as amended), the Electoral Act 2010 and Independent National Electoral Commission (INEC) Rules and Regulations, constituting the legal framework which regulates our electoral process. The Party constitutions are only a tool, for guiding the party, but must be subject to the provisions of the earlier laws. It is also noteworthy to state that the INEC Rules are also subject to the Nigerian Constitution and the Electoral Act – see the case of Okechukwu v. Onyegbu, where the INEC Rules is stated as a fundamental objective giving effect to the provisions of the Electoral Act. Of all these, the Nigerian constitution is the ‘grundnorm’, the final authority from which others derived their powers.

The Nigerian Constitution stipulates the provision for conducting elections, as well as qualifications and disqualifications for candidates vying for political offices. For this, see sections 106 and 107 for House of Assembly, sections 65 and 66 for National Assembly, sections 177 and 182 for election to the office of Governor of a State; and sections 131 and 137 for election to the office of President. There is no particular mention of nomination fees as a condition for aspirants or even candidates to run for office. In addition, Section 87 of the Electoral Act, with title ‘Nomination of candidates by parties’ does not mention anything about nomination fees as a condition precedent for primary elections for aspirants to become candidates. Please read for yourself and see that it does not in Section 87 or any other section of the Electoral Act. Although, the proposed amended Act mentions a stipulated limit for nomination fees, but it has not yet been assented to by the President, hence it lacks the force of law. The existing law is the Electoral Act 2010.

Since we have answered the three key questions here, one may ask, ‘where did INEC or the political parties get the idea of nomination form from’. First, it is important to state, it was not from the Constitution or the Electoral Act, it was imported by INEC and the political parties without any legal foundation, although, it has historical roots and has been justified often from a social point of view. How did monetizing politics find its way into our politics? In 1922, to contest for the Constituents Assembly in the amalgamated Nigeria, a person must have up to 10 pounds, irrespective of your community engagement or civic reputation. This colonial provision found its way into our political psyche, where public office holders must have means rather than substance and ethics. But must we continue in this colonial trend unconsciously? Can we redefine our political leadership, in the poorest country in the world, with staggering unemployment but high levels of able young women and men, without means to pay for party nominations? Does the size of your pocket determine the size of your integrity, capacity, and empathy to serve?

Let’s be clear, these fees are unconstitutional and illegal. On justifying the fees as a modality to prevent an influx of individuals, I can tell you on good authority that INEC requires the signature of 25 voters with Voters’ card within your constituency to support your application for House of Representatives. Isn’t that some hurdle to determine veracity, in addition to screening by political party who sponsor candidates?

INEC Rules, as well as APC, LP, SDP, ADP, APC, ADC, PDP constitution (observed in breach than in practice), which I have researched carefully for months, do not make mention of Party nomination fees as part of standards for primary election. Even if it does (but it does not), it cannot provide for what the Constitution and Electoral Act does not. Although, Chapter 9 (6) of the PDP’s constitution states that ‘money generated from the sale of nomination forms shall form part of the Party’s finances’, and that is the only time it mentions it. So why is INEC condoning the outrageous fees, which has no single constitutional cum legal backing whatsoever? What’s INEC’s vision? Is it to only conduct elections or to enthrone a working democracy which includes (but not limited to) conducting credible elections? How credible is an election whose condition precedent for producing candidates since 2009, is unconstitutional and faulty? The strategic leadership of INEC needs to answer these questions, if it would leave its mark on Nigeria’s democratic sand.

Therefore, INEC needs to remind political party that nomination fees cannot be a legal condition precedent for Party Primaries or selection of candidates to run for political office, except expressly provided for as such, in line with the 1999 Constitution, the Electoral Act 2010 (as amended). It is also highly recommended that the vibrant Socio-Economic Right And Accountability Project (SERAP) and the Nigerian Bar Association (NBA) rise to the duty of finding innovative legal channels through redress in court as institutions of democratic accountability, focused on redressing issues that undermine our democracy, in ensuring that democracy works for all and not only a few, in ensuring that INEC does the needful.

At this stage, if we do not stop this illegality, every political party will seek to make its own piece of the cake, rather than leverage on the fiscal hurdles to build Party structure easily for less. For a balanced view, the only condition here that faintly justifies a nomination fee or whatever fee is the common law of contract; that monies were paid by aspirants to obtain the candidacy of the party by choice. But what happens when an aspirant did not become a candidate and there is evidently no exemption clause that he will forfeit the money (as that cannot be implied)? Doesn’t it behoove on the parties to refund the monies to the aspirant? However, whatever is not stipulated as a condition precedent cannot be implied into it – the law does not accommodate a nomination fee yet – parties must desist.

PS:
 Sign and Share the petition to INEC to #ENDNominationFee here: https://chn.ge/2wBI8Th

 Should nothing is done urgently, if you’ll like to Join, in taking this matter to the Federal High Court, I can be reached on timthelaw@gmail.com, @timithelaw (Twitter)

Timi Olagunju is technology cum constitutional lawyer, policy consultant and design thinking expert. He is an aspirant for Federal House of Representatives, Ibadan North. www.voteTimi.com/bio

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