⦿ CASE SUMMARY OF:
INEC v. Balarabe Musa (2003)
by PaulPipar
⦿ PARTIES
APPELLANTS
1. Independent National Electoral Commission
2. Attorney-General Of The Federation
v.
RESPONDENTS
1. Alhaji Abdulkadir Balarabe Musa
2. Alhaji Kalli Algazali
3. Alhaji M. I. Attah
4. Alhaji Musa Bukar Sani
5. Chief Gani Fawehinmi
⦿ CITATION
(2003) LPELR-1515(SC);
(2003) 1 S.C (Pt.I) 106;
(2003) 3 NWLR (Pt.806)72;
⦿ COURT
Supreme Court
⦿LEAD JUDGEMENT DELIVERED BY:
Emmanuel Olayinka Ayoola, JSC
⦿ LAWYERS WHO ADVOCATED
FOR THE APPELLANT
– Mr. Eghobamien, SAN – learned counsel for the 1st Appellant
– Mr. Rotimi Jacobs – learned counsel for the 2nd Appellant
FOR THE RESPONDENT
– Chief Gani Fawehinmi, SAN
⦿ FACT
The plaintiffs each applied to the Independent National Electoral Commission (“INEC” or “the Commission”) for registration as a political party. On 17th day of May, 2002, INEC released guidelines for the registration of political parties.
INEC put up the necessary advertisements in the National Papers. Political associations responded. They applied for registration under the Guidelines. INEC did not see its way clear in registering all the political associations. They were quite a number, though not a legion. Applying the Guidelines, INEC found only three of the Political Associations registrable as political parties. INEC did exactly that. The Commission registered only three of the Associations as political parties.
The respondents who were the plaintiffs in the Federal High Court, Abuja Division did not like the action of INEC. Being of the view that guidelines 2(c) and (d), 3(a), (c), (d)(iv), (e), (f), (g), (h); and 5(b) (“the impugned guidelines”) were “inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 relating to the registration of political parties” and that they should not be made to comply with the guidelines, the plaintiffs commenced the proceedings from which this appeal arose by originating summons whereby they sought, among other things, declarations of invalidity of those impugned guidelines and also of sections 74(2)(g) and (h), 74(6), 77(b), 78(2)(b) and 79(2)(c) of the Electoral Act, 2001.
⦿ ISSUE
1. Whether the 1st defendant, Independent National Electoral Commission (INEC) established under section 153 of the Constitution of the Federal Republic of Nigeria, 1999 is bound to observe the conditions stipulated under sections 222-229 of the 1999 Constitution relating to registration of political parties.
2. Whether the 1st defendant, Independent National Electoral Commission (INEC) can by its guidelines enlarge, curtail or amend the provisions stipulated in the Constitution of the Federal Republic of Nigeria, 1999 for the registration of political parties.
⦿ HOLDING
The Supreme Court granted, in part, the reliefs and declarations sought by both parties. And, the Court held:
“In this case, section 222 of the Constitution having set out the conditions upon which an association can function as a political party, the National Assembly could not validly by legislation alter those conditions by addition or subtraction and could not by legislation authorise INEC to do so, unless the Constitution itself has so permitted.”
“Where, however, in the exercise of legislative power to make laws to provide for the registration, monitoring and regulation of political parties the National Assembly purports to decree conditions of eligibility of an association to function as a political party the National Assembly would have acted outside its legislative authority as stated in the Constitution. Similarly, INEC acting under such law to prescribe conditions of eligibility would have acted inconsistently with the Constitution.”
“Applying this test, I felt no hesitation in holding that guideline 3(a); 3(c); 3(d)(iv); 3(e); 3(f); 3(g); 3(h) and 5(b) are neither related to administration nor to any procedure for seeking registration nor are they evidence of any conditions stated in section 222 as conditions of eligibility. They have no administrative significance in the process of registration. The conclusion was inescapable that as they stand, on their own and unrelated to any of the conditions of eligibility prescribed in section 222, but are conditions of registration which are not procedural or evidential or required for any administrative purpose related to the process of registration, they are, albeit in a disguised form, fresh conditions for eligibility to function as a political party beyond what the Constitution had prescribed.”
“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.”
⦿ REFERENCED
Section 152(1)(f);
Section 153(2) CFRN 1999;
15(b) pt. 1 Third Schedule CFRN 1999;
15(d) pt. 1 Third Schedule CFRN 1999;
15(c) pt. 1 Third Schedule CFRN 1999;
Section 74(1) Electoral Act 2001;
Section 78(2)(b) Electoral Act 2001;
S.79(c) Electoral Act 2001;
section 14(1) CFRN 1999;
Section 40 CFRN 1999;
S. 228 CFRN 1999;
Section 162 Electoral Act 2001;
Section 1(3) CFRN 1999;
S. 40 CFRN 1999;
Item 56 of the Exclusive Legislative List;
⦿ NOTABLE DICTA
In the final analysis this case is about the supremacy of the Constitution. Section 1(3) of the Constitution provided that: “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void.” – Emmanuel Olayinka Ayoola, JSC, INEC v. Balarabe Musa (2003)
It is expedient to pause to emphasise that by section 14(1) of the Constitution, the Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice. Political parties are essential organs of the democratic system. They are organs of political discussion and of formulation of ideas, policies 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 the party in government or of a party in opposition, thereby ensuring the reality of government by discussion which democracy is all about in the final analysis. – Emmanuel Olayinka Ayoola, JSC, INEC v. Balarabe Musa (2003)
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, over-regulation and complete absence of regulation, is the need for balanced regulation. – Emmanuel Olayinka Ayoola, JSC, INEC v. Balarabe Musa (2003)
Regulation of political parties by the State therefore comes in two forms, namely: regulation directly by the Constitution as in section 222 and regulation authorised by the legislature or other agency of the State as may be permitted by the Constitution. It follows that any attempt to regulate political parties not by the Constitution itself or by its authority is invalid. – Emmanuel Olayinka Ayoola, JSC, INEC v. Balarabe Musa (2003)
What is clear is that the National Assembly cannot legislate inconsistently with the provisions of section 222 or 223 of the Constitution, but it can legislate for matters outside the provisions of either section 222 or section 223 provided there is legislative authority derived from other provisions of the Constitution. – Emmanuel Olayinka Ayoola, JSC, INEC v. Balarabe Musa (2003)
I take as my starting point some interrelated propositions which flow from the acknowledged supremacy of the Constitution and by which the validity of the impugned provisions will be tested. First, all powers, legislative, executive and judicial must ultimately be traced to the Constitution. Secondly, the legislative powers of the legislature cannot be exercised inconsistently with the Constitution. Where it is so exercised it is invalid to the extent of such inconsistency. Thirdly, where the Constitution has enacted exhaustively in respect of any situation, conduct or subject, a body that claims to legislate in addition to what the Constitution had enacted must show that it has derived the legislative authority to do so from the Constitution. Fourthly, where the Constitution sets the condition for doing a thing, no legislation of the National Assembly or of a State House of Assembly can alter those [provisions in the] Constitution in any way, directly or indirectly, unless, of course the Constitution itself as an attribute of its supremacy expressly so authorised. – Emmanuel Olayinka Ayoola, JSC, INEC v. Balarabe Musa (2003)
The legislative power of the National Assembly consists of the power to make laws for the peace and order and good government of the Federation or any part thereof with respect to any matter included in the Exclusive Legislative List set out in Part I of the Second Schedule to the Constitution, to the exclusion of the House of Assembly of States and to make laws with respect to any matter in the Concurrent Legislative List set out in the First Column of Part II of the Second Schedule to the Constitution to the extent prescribed in the Second Column; and with respect to any other matters with respect to which it is empowered to make laws in accordance with the provisions of the Constitution. – Emmanuel Olayinka Ayoola, JSC, INEC v. Balarabe Musa (2003)
Where the Constitution has covered the field as to the law governing any conduct, the provision of the Constitution is the authoritative statement of the law on the subject. The Constitution would not have ‘covered the field’ where it had expressly reserved to the National Assembly or any other legislative body the power to expand on or add to its provisions in regard to the particular subject. Where the Constitution has provided exhaustively for any situation and on any subject, a legislative authority that claims to legislate in addition to what the Constitution had enacted must show that, and how, it has derived its legislative authority to do so from the Constitution itself. In this case, section 222 of the Constitution having set out the conditions upon which an association can function as a political party, the National Assembly could not validly by legislation alter those conditions by addition or subtraction and could not by legislation authorise INEC to do so, unless the Constitution itself has so permitted. – Emmanuel Olayinka Ayoola, JSC, INEC v. Balarabe Musa (2003)
It is clear that the power to register is not the same as and does not include the power to declare the conditions of eligibility. Similarly, the power to regulate or monitor political parties relates to associations which have a recognised existence as political parties. Such power does not also imply any power to legislate the conditions of eligibility. – Emmanuel Olayinka Ayoola, JSC, INEC v. Balarabe Musa (2003)
A further distinction should be drawn between guidelines which are administrative or procedural or evidential in nature. Guidelines which are administrative in nature merely relate to the administrative mechanism of the process of registration. Guidelines which are of a procedural nature relate to the procedure to be followed in seeking registration. Evidential guidelines relate to proof of compliance with the conditions of eligibility. Where the requirements for registration stated in any guideline or in the Act are not purely administrative or procedural or evidential, but are substantive conditions for eligibility beyond the conditions prescribed by section 222, such guidelines or provisions would have enlarged the conditions of eligibility in section 222 and be consequently void, notwithstanding that they may have been described as requirements for registration. – Emmanuel Olayinka Ayoola, JSC, INEC v. Balarabe Musa (2003)
There is nothing reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health in prohibiting a member of the public Service or Civil Service of the Federation, a State or Local Government or Area Council from eligibility to be registered as a member of a political party – However, this conclusion is limited to the question of the validity of section 79(2)(c) of the Electoral Act 2001 and is not related to any question, not now before this court in these proceedings. – Emmanuel Olayinka Ayoola, JSC, INEC v. Balarabe Musa (2003)
Fair hearing, in essence, means giving equal opportunity to the parties to be heard in the litigation before the court. Where parties are given opportunity to be heard, they cannot complain of breach of the fair hearing principles. – Niki Tobi JSC, INEC v. Balarabe Musa (2003)
In my humble view, once a political association fulfils or satisfies the six conditions in section 222, the 1st appellant [INEC] is constitutionally bound to recognise it as a political party. But where a political association does not fulfill or satisfy the six conditions in section 222, the 1st appellant will not recognise the political association as a political party. – Niki Tobi JSC, INEC v. Balarabe Musa (2003)
The supremacy of the National Assembly is subject to the overall supremacy of the Constitution. Accordingly, the National Assembly which the Constitution vests powers cannot go outside or beyond the Constitution. Where such a situation arises, the courts will, in an action by an aggrieved party, pronounce the Act unconstitutional. – Niki Tobi JSC, INEC v. Balarabe Musa (2003)
An Act which is inconsistent with the provisions of the 1999 Constitution will be null and void ab initio. – Niki Tobi JSC, INEC v. Balarabe Musa (2003)
Provisions in a Constitution are of equal strength and constitutionality. No provision is inferior to the other and a fortiori no provision is superior to the other. – Niki Tobi JSC, INEC v. Balarabe Musa (2003)
The days when Government played the role of Father Christmas are gone. Political associations wishing to be registered as political parties must bear part of the financial burden, if not all of it. – Niki Tobi JSC, INEC v. Balarabe Musa (2003)
Since section 40 vests in every person the right to freely associate with other persons and belong to any political party, an Act of the National Assembly or a guideline of the 1st appellant ambitiously trying to take away the rights guaranteed in the section cannot stand. This is because the Constitution is supreme. – Niki Tobi JSC, INEC v. Balarabe Musa (2003)
This is because a liberal interpretation of the Constitution beyond and above the intention of the law-maker will amount to the Judge making law. – Niki Tobi JSC, INEC v. Balarabe Musa (2003)
While there is a vibrant debate as to whether the Judge should make law, it will be against the principle of separation of powers for the Judge to make law where the intention of the lawmaker is clear. Perhaps the Judge could be involved in making the law if the intention of the law-maker is not clear and he is in a difficult position in the circumstances of the case before him. In such a circumstance, since he cannot adjourn the matter for the legislature to make a law to place the situation on his hands, he could make the law. – Niki Tobi JSC, INEC v. Balarabe Musa (2003)
