Funmilayo Odude, Legal Practitioner, Damod Law Practice

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Re-evaluating the role of courts in political disputes 27 Jun 2018

Nigeria is currently preparing for another round of general elections, scheduled to take place in February 2019. Political parties have begun their ward, local government and state congresses. Alongside these activities are reports of internal wrangling and factionalization of the parties.
These disagreements and squabbles are not surprising, considering how large in size each of the country's two top political parties – the ruling party, All Progressive Congress (APC), and the major opposition party, Peoples Democratic Party (PDP) – is. A lot of the political disputes are making their way to the courts. This is, therefore, a good time for the courts and lawmakers to reevaluate the role of the courts in political matters.

The general principle of law is that a court would not entertain suits that deal with the internal affairs of a political party. This principle of law was not enunciated strictly for political parties. It is also a principle that covers all associations. The rationale behind the principle is that the courts should not run associations for their members and members who feel dissatisfied with the decisions of associations they belong to have the choice to withdraw their membership.

The principle's entry into Nigerian jurisprudence in relation to political parties took place in 1983. This was during the very notable case of Hon. Patrick Onuoha who had approached the court to complain about his nullification as the nominated candidate of the Nigerian People's Party (NPP) for the Owerri senatorial district seat and the selection of another candidate to replace him. The Supreme Court, entrenching the principle of non-justiciability of political disputes, held that Mr. Onuoha's suit praying for an order directing his political party to sponsor him would “instantly project or propel the court into the area of jurisdiction to run and manage political parties and politicians.”

The apex court's decision was that members of a political party are bound by the decisions reached by the organs of the party in the management of such party's internal affairs. Thus, where a member of a political party is disenchanted with the party, the course open to him is resignation from the party.

Consequently, courts refused to entertain disputes relating to and dealing with nomination and sponsorship of candidates, appointment of party officers or party leadership tussles. This left aggrieved members nowhere else to seek redress except the mechanisms set up by the political parties themselves. This of course allowed political parties to act with impunity in the management of their affairs.

In 2006, by virtue of an amendment to the Electoral Act, there was a slight adjustment to the courts' position regarding their jurisdiction in such political matters. The Act was further amended in 2010. The amendment to the Electoral Act in 2006 introduced the procedure to be adopted by political parties in the substitution of candidates for elective posts.

In 2010, a provision was introduced in Section 87 (9) of the Act. This empowered an aspirant to approach either the Federal or State High Court for redress in the event he has a complaint that any of the provisions of the Act or the guidelines of the party have not been complied with in the selection or nomination of a candidate for an elective post.

Amendments to the Electoral Act, especially Section 87 (9), opened the door albeit narrowly for the courts to vest themselves with jurisdiction to entertain political disputes. Suffice to note that this jurisdiction only covers the limited scope of an aspirant's allegation that a party did not comply with the Electoral Act or the party's constitution or guidelines in the conduct of its primaries. Accordingly, the Supreme Court maintained in 2012 – in the suit between Chief Ikechi Emenike and the PDP – that “the courts have no power to compel a political party to sponsor a candidate outside the thin and limited powers conferred under Section 87 of the Electoral Act 2010 (as amended).”

The courts have since used the provisions of Section 87 (9) of the Electoral Act 2010 (as amended) to overturn some decisions of political parties steeped in impunity. They have also gone as far as filling a lacuna in our statutes, particularly in the court decision that followed the impasse created in Kogi State after the death of the original gubernatorial candidate of the APC, Alhaji Abubakar Audu, in 2015. The Supreme Court held that the proper thing for the party to have done was to resort to the result of the primary election and pick the candidate with the second highest votes since such candidate would have gone through all the pre-nomination exercises designed to ensure a candidate is qualified to contest an election.

The Supreme Court adopted the same reasoning in 2017 in the case between Isah Shuaibu Lau and PDP when the apex court nullified the decision of the political party to sponsor Alhaji Sani Abubakar Danladi for the seat of the senator representing Taraba North Senatorial District of Taraba State. Through a process of substitution, the PDP had decided to sponsor Danladi after the candidate who emerged as winner of the primary withdrew from the race. The court directed Alhaji Danladi to vacate his seat and ordered INEC to issue a certificate of return to Lau who had gotten the second highest number of votes at the party's primary.

The Honourable Justice Ejembi Eko stated: “Suffice only that I add that Section 87 of the Electoral Act, 2010, as amended, was enacted and inserted into the statute for a purpose. And that is, to provide a level playing ground for all members of a political party aspiring to be candidates to be sponsored for elections to offices in either the legislative or Executive arms of Government. Hitherto, there was no internal democracy in all the political parties. All the political parties were hijacked by the high and mighty. Impunity was the norm. Within the parties there was nothing like the rule of law. The situation looked like the bleak situation in Israel as reported by Prophet Habakkuk: that in those days, there were no laws in Israel and everybody did what was right in his own eyes, and justice went forth perverted. That was the mischief Section 87 of the Electoral Act was enacted to address, contain and reverse.”

The process of nomination of candidates for an election does not, however, involve the primaries of the parties alone. It begins from the congresses. The Electoral Act provides that the procedure for the nomination of candidates by political parties for the various elective positions should be by either direct or indirect primaries. So far, the top political parties in the country use the system of indirect primaries.

The Electoral Act further provides that where it is by indirect primaries, the political parties must set out in their constitutions and rules the procedure for the democratic election of delegates to vote at the conventions, congresses or meetings. Most political parties, by their constitution, have either the officers that emerge from these various congresses as the delegates or specific persons are given the power to elect the delegates.

But where the results of the congresses become a reflection of the will of powerful individuals in a party, as is usually the case, it affects the credibility of the primaries conducted. We must, therefore, begin to stop the impunity from the stage of congresses.

While some political suits on leadership tussles within political parties are being entertained by the courts, some courts still refuse to entertain such suits on the principle of non-justiciability of political disputes beyond those permitted by the Electoral Act. The Supreme Court's decision, which settled the PDP imbroglio caused by the leadership crisis between the substantive National Executive Committee and the National Caretaker Committee, has only added to the uncertainty as to what the law says with regard to settling the internal disputes of political parties.

However, the Supreme Court's intervention in the PDP crisis demonstrates why we must do away with the principle of non-justiciability of disputes arising from the internal affairs of political parties.

Political parties are quite distinct from other associations. By the provisions of Section 221 of the Constitution, the right of a citizen to participate in the government of his country by seeking elective posts can only be exercised through his association with a political party. Both the Constitution and the Electoral Act strongly regulate the activities of political parties through the organ of the Independent National Electoral Commission (INEC). Political parties are thus clearly meant to be regulated.

As the Chief Justice of Nigeria, Walter Samuel Nkanu Onnoghen, stated in his concurring judgment in the Isah Lau's case, “where a political party refuses or neglects to abide by the provision of its constitution in its relationship with its member we have the beginning of the culture of impunity and with it, chaos, uncertainty and indiscipline which should not be encouraged.” The end point of such impunity is the election of undesirable persons to run the affairs of the nation.

It is time to do away with all forms of restrictions in access to courts by members of political parties who have legitimate complaints or allegations pertaining to impunity by their political parties.

A Financial Nigeria columnist, Funmilayo Odude is a Lagos-based legal practitioner, and a public affairs analyst.