Sunday, November 30, 2014

Nigerian political parties and illegal nomination fees

In a well-researched and scholarly article on the back page of Thisday newspaper of November 4, 2014, human rights lawyer and a senior advocate of Nigeria, Femi Falana, dissected the illegality of the action of Nigerian political parties in charging political aspirants Expression of Interest and Nomination Fees. The exorbitant amount which is in millions of Naira is prohibitive, discriminatory and exclusionary. It must be stated that this is a major way by which political parties in Nigeria fund their operations. For instance, as at November 4, 2014, Peoples Democratic Party is reported to have raked in over N3 billion from this exercise. (See The PUNCH of November 5, 2014.)

 Barrister Falana’s sound legal argument against collection of nomination fees is as follows:  “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.”

The legal luminary went further to state that “Since the conditions stipulated in the Constitution do not include payment of nomination fees and production of tax clearance certificates (by political contestants) ….. 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.”

Falana further submitted that “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.”

He did not stop at that, the legal icon cited a case from the United States of America to buttress his point. According to him, “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.”

The above argument by Femi Falana is logical and faultless. In fact, Political Party Finance Handbook (2011) published by INEC on page 7 stipulated five ways through which political parties may obtain funds for their operations. These are: Membership fees; Income generated by property owned by political party; Profit from the income of the enterprises owned by political party; Public funding i.e. grant from the state; and Contributions from legal entities and natural persons.

Let’s examine each of these sources.  First, party members hardly pay their membership dues. Oftentimes, they only pay when they are contesting for elective offices on the platform of the party. At other times, aspirants vying for elective offices pay the membership fees arrears of their supporters in order to enable them vote during party primaries. Two, there is no more public funding for political parties since 2010 when the current electoral act came into force. Three, many political parties don’t own property or any other investments for that matter. Most of the party offices are in rented apartments, some of which are donated by wealthy party members. Thus, with little or no investments, no income is coming in from that angle.

Four, Nigeria’s Company and Allied Matters Act in Section 38 (2) forbids companies from contributing funds to political parties. It states: “A company shall not have or exercise power either directly or indirectly to make a donation or gift of any of its property or funds to a political party or political association, or for any political purpose…”

Therefore, with all legitimate means of funding for political parties yielding little or no income, how appropriate is the criminalization of the collection of expression of interest and nomination fees by Nigerian Constitution? Well, Falana believes “In the circumstance, political parties may only be permitted by law to charge administrative fees.”  Maybe political parties should thus rename the Expression of Interest and nomination fees as administrative charges in order not to run afoul of the law.

Jide is Executive Director of OJA Development Consult, Abuja.