THE INEC V MUSA EFFECT
INTRODUCTION
In approaching the discourse in this article, it was difficult to come up with a title that will aptly suit its essence. It really deals with the recent democratic experience in Nigeria and more particularly with the recent democratic experience as it relates to the representative and participatory processes of the political class in its political
landscape. I choose to single out the case of INEC and Musa because it is in my view one of the most important, if not the most important decision of the Supreme Court of Nigeria dealing with participation and representation in the political process. The Doctrine of an open field came to mind but in view of the fluidity of the regulatory framework and constitutional provisions, I settled on the Doctrine of a wider field. The regulatory framework and constitutional provisions relating to the powers of the Independent National Electoral Commission (INEC) possess an inbuilt elasticity that does not allow for limitation. It does appear that in so far as an association, body or party satisfy the Constitutional requirements, they will be allowed to participate in the political process. This is a good thing in a Democracy.
Prior to 1999, Nigeria’s experience of the Democratic process had been epileptic and minimal. It can, I believe safely be said that no serious political culture had developed amongst its people. It is also fair to state that the associations that developed into political parties were based on tribal and sectional interests rather than ideology. There is no doubt that tribal and sectional interests are relevant in the articulation of ideas and formation of political associations but they are only factors amongst the several factors that should be taken into consideration. If they are the main factors as it seemed they were in Nigeria, it will inevitably lead to tension. This tension is simplified if it is physical because physical tension such as civil strife can be quelled artificially by force but the more disturbing type of tension is the one that relates to the absence of the thought process. The people fail to think. A spectacular deficiency of political ideas reigns in and amongst the political classes.
The political groupings of the First Republic had some very sound intellectuals with great ideas but the history and perhaps judgment of that era showed an excessive appetite for the advancement of tribalism and sectionalism. The Second Republic did not fare better. The politicians of that era played around with political ideas such as socialism and progressives but I think history records that the Unity Party of Nigeria UPN perhaps was the closest in the advancement of social democratic principles and perhaps the only party that may have been formed based on political ideology. The other parties like the National Party of Nigeria (NPN) and the Great Nigeria Peoples Party (GNPP) had pockets of individual with sound political ideas ranging from progressive to socialist but it is difficult to discern if the parties were themselves formed based on ideology.
The experience of the Third Republic was similar. The then military regime led by General Ibrahim Babangida introduced the artificial two party system and wrote out manifestos for them. From the political science point of view this was shocking. One may be able to work towards the answer in the exact sciences but to attempt to do so in political science and human relationships is disingenuous. It is my respectful view that this was a disingenuous model. It stifled debate and chocked the air of expressing political ideas which is a sine qua non in the development of ideology. The Nigerian People however accepted this model. My guess is that they wanted anything that will get rid of the military which was an aberration. In view of how the Third Republic was conceived, it cannot be shocking that the structure collapsed.
The process leading to the commencement of the Fourth Republic was replete with some of the processes that led to the failings of the previous republics. There was incredible tension and serious agitation for revalidation of the June 12th 1993 presidential election result which had been cancelled by the military regime of General Ibrahim Babangida. Indeed the Nigeria political scene was being watched both locally and internationally. There was a pressing need to appease the Nigerian People and Political Class for the wrongful cancellation of an election which was said to be generally free and fair and importantly, an election that played down the tribal and religious divide in the country. The gestation period for the Fourth Republic was nine months. This was a tall order for the military regime of General Abdusallam Abubakar. That regime to its credit however achieved it.
It is important to stress that the political class was still plagued with a failure to imbibe and develop the imperatives of democracy. They had in all these period faced only the task of getting the military out of government. The formation of political associations and parties was based largely on the old affiliations of the First, Second and Third Republics and the new comers appear to have tossed a coin as to which party to join. Importantly these associations were not based on ideology. The largest parties, the People Democratic Party (PDP), All Nigeria Peoples Party (ANPP) loosely ascribed to themselves the word progressives.
It could be argued that the long period of military rule made it impossible for politicians to develop any form of ideology and indeed there will be some merit in that argument. It is my view however that the long period of military rule made it difficult not impossible for politicians to develop any form of ideology. Is it not interesting that the long military rule did not reduce the advancement of tribal and sectional interest but the politicians and their apologists claim that it made it impossible for them to develop any form of political ideology. The Independent National Electoral Commission (INEC) at the commencement of the political process of the Fourth Republic registered 3 parties to contest the General Elections. In early 2002, 3 more parties were registered, while by December 3, 2002, 28 parties were registered for the 2003 Elections.
The general awareness of the people about the political process led to greater agitation to participate in the political processes. The decision of the Independent National Electoral Commission (INEC) to restrict the number of political parties that would contest the 2003 General Elections resulted in 27 Political Associations filing an action in court questioning the constitutionality of this action. The fulcrum of the action was hinged on the interpretation of various sections of the 1999 Constitution and the parameters of the powers given to the Commission by the Constitution, the Electoral Act and the General Law.
The decision of the Supreme Court in this action is in my view one of the most important and profound decisions of the court in recent years. It opens the political landscape and by way of judicial review defines the limits of the Independent National Electoral Commission (INEC). In referring to the impact of this decision, Dr. Tunde Ogowewo, a distinguished scholar at Kings College, University of London and Formerly Global Hauser Professor of Law at the New York University in his paper titled Self Inflicted Constraints on Judicial Government in Nigeria opined that:
“By its judgment in that case, the Supreme Court maximized contestability in the political environment. That case established the principle (the foundation of which is section 40 of the 1999 constitution) that a government, being a party of citizen (with a set of promises termed a manifesto) elected by the citizenry, has no right to prescribe eligibility conditions outside the authority of the Constitution to determine whether other “parties of citizens” should be allowed to present their manifestos for consideration by the electorate. Setting the stage for opening up political space”
The Lead judgment of the Supreme Court in this case was delivered by Ayoola JSC. His Lordship stated:
“Political parties are essential organs of the democratic system. They are organs of political discussion and of formulation of ideas, politics and programmes. Plurality of parties widens the channel of political discussion and discourse, engenders plurality of political issues, promotes the formulation of competing ideas, policies and programmes and generally provides the citizen with a choice of forum for participation in governance, whether as a member of a party in government or a party in opposition. Thereby ensuring the reality of government by discussion which democracy is all about in the final analysis. Unduly to restrict the formation of political parties or stifle their growth, ultimately, weakens the democratic culture. However, to leave political parties completely unregulated and unmonitored may eventually make the democratic system so unmanageable as to become a hindrance to progress, national unity, good government and the growth of a healthy democratic culture. Between the two apparent extremes of over-regulation and complete absence of regulation is the need for balanced regulation. In interpreting the provisions of the Constitution and enactment relating to the formation, regulation and monitoring of political parties the recognition of the need for balanced regulation is essential.”
INEC V MUSA
It is important to state the facts of this case and trace its history from the court of first instance to the intermediate Court of Appeal and finally to the Supreme Court. In tracing this history, it is also important to find out if there is consistency in the reasoning and judicial philosophy behind the decisions of the three courts in which altogether eleven Judges of the Superior courts of records were involved. The starting point is the facts.
The twenty-seven political parties and political association as plaintiffs filed an action by way of Originating Summons at the Federal High Court, Abuja Division Suit No: FHC/ABJ/CS/170/2007. The action being one questioning the constitutionality of the Act of the Federal Agency was properly filed in the Federal High Court. The Plaintiff sought interpretation of Sections 153, 222-229 of the 1999 Constitution, Sections 74(2)(G) and (4), 74(6), 77(b), 78(2)(b) and 78(2)(c) of the Electoral Act 2001. The Plaintiff broadly and specifically questioned the guidelines produced by the Independent National Electoral Commission (INEC). These guidelines were produced pursuant to the powers given to the Commission by the 1999 Constitution and the Electoral Act 2009.
The Plaintiff also questioned the competence of the National Assembly to enact provisions relating to the registration of political parties. They claimed that the 1999 Constitution had made provisions covering the field with regard to registration of political parties and therefore National Assembly could not legislate on these issues without amending the Constitution. It was as a result of this claim that the Attorney General of the Federation was made the 2nd Defendant to the action.
The crux of the contention of the plaintiffs as presented by their counsel was that the guidelines for the conduct of the 2003 elections prepared by the Independent National Electoral Commission (INEC) was at variance with the provision of sections 222 and 223 of the 1999 Constitution. They also contended that the National Assembly had no power to enact Section 74(2)(a), 74(2)(h), 74(6), 77(b), 78(2)(b) and 97(2)(c) of the Electoral Act and in consequence therefore, the court was urged to strike these sections down for running counter to the provisions of the Constitution. It was the further contention of the plaintiff that section 228 of the 1999 Constitution did not in any form whatsoever authorize the National Assembly to make laws that introduced more conditions for registering political parties. In effect the National Assembly could not make laws on matters already specified by the Constitution.
The Independent National Electoral Commission (INEC) through their counsel contended that the National Assembly had powers to authorize them vide the provision of section 162 of the Electoral Act to issue guidelines for the registration of political parties and that the guidelines issued were in line with the provision of the 1999 Constitution and the Electoral Act 2009. Independent National Electoral Commission (INEC) further contended that section 15(b)-(c) of part 1 of the 3rd schedule of the 1999 Constitution gave them broad powers to register and issue guidelines to political parties that intended to take part in the general election.
Justice Jonah Adah at the court of first instance started his analysis of the law with regard to the issues at stake by first looking at the provisions of Section 228 of the Constitution. Section 228 of the 1999 Constitution provides thus:
“The National Assembly may by law provide:-
(a) For the punishment of any person involved in the management or control of any political party found after due inquiry to have contravened any of the provisions of Sections 221,225(3) and 227 of this constitution;
(b) For the disqualification of any person from holding public office on the ground that he knowingly aids or abet a political party in contravening Section 225 of this Constitution;
(c) For an annual grant to the Independent National Electoral Commission for disbursement to political parties on a fair and equitable basis to assist them in the discharge of their functions and;
(d) For the conferment on the Commission of other powers as may appear to the National Assembly to be necessary or desirable for the purpose of enabling the Commission more effectively to ensure that political parties observe the provisions of this Part of this Chapter.”
His Lordship commenced his approach to the interpretation of this particular section by applying one of the principles stated by the Nigerian Supreme Court in the case of Attorney General of Bendel State v. Attorney General of the Federation where the court amongst the twelve principles stated therein said that “effect should be given to every word” in the interpretation of the constitution. Infact this was the first principle. Justice Jonah Adah said the provision of Section 228 of the 1999 Constitution is very clear. He stated:
“I cannot fathom any reason why effect should not be given to every word of this provision for on the authority of Bendel State v. the Federation (supra) at p. 78, words are the common signs that mankind make use of to declare their intention one to another and when the words of a man express his meaning plainly and distinctly and perfectly, there is no occasion to have recourse to any other means of interpretation. I must in that spirit point out that if in the face of such plain, distinct and perfect expression of the meaning of those words, one finds an occasion to have recourse to other means of interpretation the conclusion would be obvious that that person is seeking for an occasion to express what he wants to express other than the clear intention of the maker. I shall therefore give effect to every word of this Section 228 of the Constitution. The first thing that is certain in this matter is the fact that the Constitution never made it obligatory or compulsory for the National Assembly to make Laws on all issues under Section 228. The operational phrase is: “The National Assembly may by Law provide”.
The provision of Section 228(d) of the Constitution was very central to the powers the Independent National Electoral Commission (INEC) sought to exercise. Justice Jonah Adah at page 19 of his judgment said:
“Under this subsection, the National Assembly can make Laws to confer on INEC “Other Powers” as may “appear to the National Assembly to be necessary or desirable” for the purpose of enabling INEC more effectively to ensure that Political Parties observe the provisions of this part of this chapter of the Constitution.
This with all sincerity means that the National Assembly can confer on INEC other Powers outside those already conferred by the Constitution but such other Powers to be conferred must be Powers which in the estimation of the National Assembly, are necessary or desirable for no other purpose but the purpose of enabling INEC to more effectively ensure that Political Parties observe the provisions of Part ‘D’ of chapter (vi) of the Constitution. This part ‘D’ of chapter (vi) encompasses the provisions of sections 221, 222, 223, 224, 225, 226 and 227 of the Constitution. The focus of any Law under Section 228 of the Constitution, therefore is to power INEC to effectively police the observance of sections 221-227 of the Constitution by the Political Parties. Part of what INEC must see to under such a Law is the observance of the Conditions for registration of Political parties under Section 222. This is where the controversy is in this suit. The National Assembly has passed a Law already relating to Political Parties and that is in part III of the Electoral Act 2001”.
THE DECISION OF THE COURT OF FIRST INSTANCE
The Learned trial Judge, Honourable Justice Jonah Adah on the 11th of June, 2002 delivered judgment. In dealing with the issue of the guidelines and the field of political party participation, the learned trial Judge at pages 22 stated thus:
“All these requirements must be weighed along the line of the power conferred on the National Assembly to make Laws for Political parties by Section 228 of the Constitution. A closer look at the provisions of the Constitution relating to Political parties especially Sections 222(b); 222(e), 223(2)(b) and 224 reveal a Central theme intended by the Constitution. The theme is that the Political Associations must be opened to every Citizen of Nigeria irrespective of his place of origin, circumstance of birth, sex, religion or ethnic grouping. That theme is expressed in the Association not giving the appearance that it is an Association confined to a part only of the geographical area of Nigeria. It is part of the responsibility of INEC under the Constitution therefore to ensure that membership of the Political Association to be registered is open to all citizens of Nigeria. To verify and assure this, there must be a frame work devised or designed by the INEC to act as a monitoring guide. An Association seeking registration cannot be a body existing in name. It must be composed and comprised of citizens of this great Country, Nigeria for no association is so called without the people. This fact must be established in all probabilities to be actual and real. To prove that membership of the Association to be registered is opened to all without discrimination, membership record of such an Association must be opened for scrutiny as a pre-qualification exercise for registration. To effectively do this, INEC must be conferred with the power and that power is such as has been earmarked by Section 228(d) of the Constitution to be conferred by the National Assembly. In the case of Adisa v. Oyinwola (supra), at ratio 45, the Supreme Court held as follows:-
“The provisions of the Constitution ought to be interpreted liberally. Thus, it is not the duty of the court to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends. (Mohammed v. Olawunmi (1990)2 NWLR (pt.133) 458; Rabiu v. State (1980) 2 NCLR 293; Acqua Ltd. v. Ondo State Sports Council (1990) 4 NWLR (pt.91) 622; Ishola v. Ajiboye (1994)1. NWLR (pt.352) 506 referred to, (p.191, paras. C-F)”
This also was the decision in P.D.P. v. INEC (1999) 11 NWLR (pt. 626)200 where the court said that in interpreting the provisions or Sections of a Statute or indeed the Constitution, such provisions should not be read in isolation of the other parts of the statute or the Constitution. It must be read as a whole in order to determine the intendment of the makers of the Statute or the Constitution (see ratio 6 of the report). From my understanding of the provisions of Section 228(d) I am satisfied that the provisions of Sections 74(6), 77(b) and 78(2)(b) of the Electoral Act 2001 is well within the Legislative powers conferred on the National Assembly by Section 228(d) of the Constitution. I hold therefore that, those Sections are valid and consistent with the provisions of the Constitution of the Federal Republic of Nigeria 1999”.
The sum total of the judgment of the court of first instance was that the Independent National Electoral Commission (INEC) has powers to make guidelines for the conduct of Elections and that some of the guidelines made pursuant to registration of parties, particularly as regards restriction of numbers did not particularly offend the constitutional provisions. The court held that in some respect, the commission did not go outside its powers. The court held that Section 74(2)b, 74(6), 77(b) and 79(2)c of the Electoral Act 2001 were validly enacted. His Lordship held thus:
“I hold that they are incidental Powers necessary for the purpose of enabling the Commission more effectively to ensure that the political Parties observe the provision of the Constitution. I hold them to be valid and in order”.
The sections referred to by his Lordship in Section 74(6) which provides that:
“74(6) Any Political Association that meets the conditions stipulated in subsections 1 and 2 of this section shall be registered by the Commission as a political party within 30 days upon payment of the sum of N100,000.00 administrative and processing fees and if after the 30 days the Association is not registered by the Commission it shall be deemed to be so registered”.
Section 77(b) a copy of the party’s Constitution drawn up in compliance with Chapter II of the Constitution of the Federal republic of Nigeria and with the requirements of the relevant guidelines issued by the Commission.
Section (2)(b) at all times be in compliance with the provisions of the Constitution, the electoral laws and guidelines made by the Commission.”
The underlining tone of the judgment of the court of first instance seem to suggest that the Independent National Electoral Commission had a broad discretion that was not necessarily confined to the administrative processes of registering political parties.
THE DECISION OF THE COURT OF APPEAL
The Political Associations were not satisfied with the decision of the court of first instance. They appealed to the Court of Appeal. The substratum of their appeal was that the powers exercised by the Independent National Electoral Commission (INEC) in regulating the formation of political parties was ultra vires and unconstitutional. In effect there was nothing in the Constitution that empowered the Commission to restrict the party formation process especially to the extent that it would drastically reduce the number of parties contesting the political landscape.
The Court of Appeal on the 26th of July, 2002 delivered judgment in the appeal. The case is reported as Musa vs INEC . The court presided over by Musdapher JCA who gave the lead judgment made some significant findings of law. His Lordship held thus:
“It is significant to note that S.39 providing for freedom to disseminate information is subject to a law to be enacted by the National Assembly giving restrictions “reasonably justifiable in the democratic society”.
Similarly S.41 guaranteeing the right to Freedom of Movement is also limited to the provisions of a law reasonably justifiable in a democratic society. The restriction placed under S.40 in the Proviso is the recognition by INEC of an association on the POWERS conferred upon INEC by the Constitution. Now, Section 222 of the Constitution provides:-
“No association by whatever name called shall function as a Political party, unless –
(a) the names and addresses of its national officers are registered with the Independent National Electoral Commission:
(b) the membership of the association is open to every citizen of Nigeria irrespective of his place of origin, circumstances of birth, sex, religion or ethnic grouping.
(c) a copy of its Constitution is registered in the principal office of the Independent National Electoral Commission in such or form as may be prescribed by the Independent National Electoral Commission;
(d) any alteration in its registered Constitution is also restricted in the principal office of the Independent National Electoral Commission within 30 days of making such alteration:
(e) the name of the association, its symbol or logo does not contain any ethnic or religious connotation or give the appearance that the activities of the association are confined to a part only of the geographical area of Nigeria; and
(f) the headquarters of the association is situated in the Federal Capital Territory, Abuja.”
Section 223 has made provision for the Constitution and rules of Political Parties, which in my view should not be different from those of an association seeking to be recognized as a Political party.
“1. In my view, there are no other conditions for an association seeking to be registered as a Political Party to comply with other than those spell out in S. 222 and S. 223 with reference to the contents of the Constitution and the rules. S. 228 of the Constitution merely provides for the powers of the National Assembly with respect to the registered Political Parties for:
“(a) for punishment of any person involved in the management or control of any Political Party found after due inquiry to have contravened any of the provisions of S. 221, 225 (3) and 227 of this Constitution.”
(b) for disqualification of any person etc.
(c) for annual grant etc.
(d) for the conferment on the Commission of other powers as may appear to the National Assembly to be necessary or desirable for the purpose of enabling the Commission more effectively to ensure that Political Parties observe the provisions of this chapter.”
(2) In my view, the powers conferred by S.228 of the Constitution on INEC is to do with registered Political Parties. In all the subsections of this section, the words used are Political Parties and not Political Associations. It is settled law that in the interpretation of the Constitution, the Supreme Court in the case of A.G. Bendel State Vs. A.G. of the Federation (1982) 3 NCLR, the Supreme Court laid down some guidelines thus:-
(a) effect should be given to every word,
(b) the language of the Constitution where clear and unambiguous must be given its plain evident meaning,
(c) a constitutional provision should not be construed so as to defeat its evident purpose”.
(3) It, accordingly does not appear to me, that the National Assembly has the power under S. 228 to make any law in relation to an association wishing to be registered as a Political Party outside the provisions contained under S. 222 and perhaps S. 223 of the Constitution.
Now, there is no doubt that item No. 15 (b) of the Part I of the Third Schedule to Constitution provides:-
“The Commission shall have power to –
(b) register Political Parties in accordance with the provisions of this Constitution and an Act of the National Assembly.”
(4) In my view and in accordance with the principles cited above, the National Assembly cannot make any laws pursuant to Item 15(b) either by repeating what the Constitution has already provided or by altering, enlarging or curtailing the provisions already contained in the Constitution”.
His Lordship concluded that:
“At the end of the day, I dismiss the cross-appeal as it is devoid of any merit. I allow the appellants appeal and I set aside the part of the judgment refusing to the declarations sought by the appellants. I accordingly declare guidelines 3(a), 3(c), 3d(iv), 3(e), 3(f), 3(g), 3(h), 2(d) and 5(g), 3(h) 2(d) and 5(b) unconstitutional, therefore null and void.
Similarly, I declare Sections 74(2)(g) and (h), 74(6), 77(b), 78 (2)(b) and S. 79(2) (c) of the Electoral Act 2001 as unconstitutional therefore null and void. I also restrain INEC, its agents, officers, privies from basing the registration of Political Associations as Political Parties on the aforesaid offending provisions of the guidelines and the Electoral Act, 2001”.
In effect the court held that the only provisions dealing with political party registration was as set out in the Constitution and that no Act of the legislation should be enacted in any form whatsoever to narrow or broaden it. This was a significant victory for the Political Associations and it pushed the boundaries of participation in the election and electoral processes. It came at a time when the polity was heated up and many people and associations felt that they could not properly be represented by the existing political parties. The effect of the decision was also to reduce the powers of the Independent National Electoral Commission (INEC) to a purely administrative one. Political participation was a matter of law and was according to the court enshrined in the Constitution.
THE SUPREME COURT DECISION
The Supreme Court decided in favour of the Political Associations. Their judgment reflected broadly the consensus in the polity and further reduced the political tension that at that particular point reached an incandescent point. Their decision affirmed the decision of the intermediate appellate court but was broad in its approach. The point made by the lead judgment of Ayoola JSC appeared to lay a definitive rule of law on participation in the democratic process but also left room for the discretion given to the Independent National Electoral Commission (INEC) to regulate the process of political party formation. His Lordship Ayoola JSC said that;
“Unduly to restrict the formation of political parties or stifle their growth, ultimately weakens the democratic culture. However, to leave political parties completely unregulated and unmonitored may eventually make the democratic system so unmanageable as to become a hindrance to progress, national, unity, good government and the growth of a healthy democratic culture”.
This clearly states that there is a continuing need for some form of regulation. Indeed his Lordship said that there was a need to strike a balance.
“Between the two apparent extremes of over-regulation and complete absence of regulation is the need for balanced regulation”. (See page 150 para G of (2003)3 NWLR pt. 806 at 72 of the judgment).
In the years following the decision of the court, it does appear that the regulatory powers of the Commission has been confined to the administrative processes of setting up a political association or political party. The right to take part in the democratic process as a group in my view was enhanced by the decision of the Supreme Court in this case. His Lordship report concluded:
“The Constitution does not by itself expressly stipulate conditions for the registration of political parties. It only empowered INEC to register political parties and the National Assembly to legislate for the regulation of political parties. There were several guidelines made by INEC which though not within the conditions prescribed by the Constitution for eligibility of an association to function as a political party were quite valid because they were incidental and relevant to the registration process and were within the regulatory powers of INEC, the details of which cannot be expected to be set out in a Constitution. It is only those guidelines which were of the nature of conditions of eligibility to function as a political party that were invalid as being made without authority of the Constitution. In the result whether INEC could prescribe guidelines for the registration of political parties outside the conditions stipulated in the Constitution or not must depend on the nature of the guidelines. Procedural, evidential and purely administrative guidelines are “outside the conditions stipulated by the Constitution”, yet they are valid”.
THE POLITICAL GAINS OF THE INEC AND MUSA DECISION
There is no doubt that there has in the ensuing years been gains from this Landmark decision of the courts. The question however will be how do you measure the gains. This is a difficult task. There has been a proliferation of political parties and associations recognized by the Independent National Electoral Commission (INEC). At some stage, over 30 parties were registered to take part in the general elections. In the 2011 general elections, there were 63 that contested the elections to various electoral positions. Participation is an essential tonic for democracy, one may even go as far as stating that it is an unqualified good. It has been the striving of all peoples since and perhaps before the time of the Greeks to take part in the decision making process of the polity. The great philosopher Aristotle said that man is a political animal, in my view, what he meant was that we are all in one way or the other affected by politics. How apt therefore that we should be instrumental in the political process. History however tells us that the participatory process in early Democracies such as the Athenian democracy was gradual. It is said that:
“Estimates of the population of ancient Athens vary. During the 4th Century BC, there may well have been some 250,000-300,000 people in Attica. Citizen families may have amounted to 100,000 people and out of these some 30,000 will have been the adult male citizens entitled to vote in the assembly”.
(See Athenian Democracy. Wikipedia Free encyclopedia).
A perusal of the participation process in Western Democracies show a gradual pattern. This may not be deliberate and there is not much evidence to show that the evolutionary process greatly enhanced the maturity of these Democracies. However without sounding too simplistic, I think there is good sense in the Chinese saying that the journey of a thousand steps starts with one step.
I was privileged to be one of the counsel involved in the landmark decision of INEC and Musa and entrusted to prepare the brief of argument in both appellate courts on behalf of the Independent National Electoral Commission. As I stated earlier in this paper, I think that in the circumstances of the times, the decision of the appellate courts were right. It is important however to state the legal reasoning behind why as counsel, we thought it fit to take a gradualist, pragmatic approach to the preparation of the brief of argument on behalf of the Commission.
There must in my respectful view be an a posteriori approach to dealing with such a delicate issue as participation of the people in an emerging democracy. This is strengthened by the fact that it is an emerging democracy with little or no political structures or institutions and one with no emergent or structured political ideology. When faced with a determination of such an issue, the question must be, what is the justification for allowing a proliferation of political associations, bodies or parties at this point in our political history. The evidence that is glaring though not scientific suggest a cluster of people coming together largely for ethnic purposes or reasons. This in itself is a combustible mix upon which to form a political party. Ethnicity is tribalism, it is not based an ideology. In fact one has no vote in what ethnic group to belong to. Nature prescribes that you are born into a particular tribe or ethnic configuration.
There is a powerful realism about the best evidence rule of evidence law. When this is merged with the thin skull principle of the law of tort, it is difficult to go wrong in finding the answer to the question or questions posed. What can be more certain and absolute than that which you can observe yourself. What can be better than applying a relative approach to the facts. In the powerful expression of the thin skull rule, you take your victim as you find him. What were the political realities in 2002 in Nigeria. The nation had just emerged from over 30 years of military rule where political debate was either stifled or non-existent. There had been at sometime in the nation’s past and history a civil war fought predominantly along tribal and ethnic lines. To all intents and purposes, Nigeria was a political infant.
In my respectful view, there was a fundamental need for a realistic, gradualist and pragmatic approach to opening formally organized participation in the electoral process. Of course this had nothing to do with individuals expressing their political thought but it seemed that at that point in the nation’s history, associations and political parties were bereft of political ideas and ideology. Indeed, it is arguable that they are still bereft of ideas and ideology today. One is fortified in this regard by the fact that in Nigeria today, although, there is constitutionally a wider field for associations and political parties to participate in the electoral process, there exist what can best be described as a one party state with the Peoples Democratic Party controlling over three quarters of political office at Local Government, State and Federal levels.
However, I think that the decision of the Supreme Court in INEC v Musa was constitutionally accurate. In opening the field for political parties to participate in the electoral process, it reduced the tension in the polity, it created a sense of belonging and relevance which one continues to hope will help frame a sound base upon which political ideas and ideology will in the fullness of time develop.
Disclaimer: The views represented in this article are the views of the author and does not necessarily reflect the view of the law firm.