Party supremacy, party primaries and inexorable judicial interventions

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By NNAMDI Obiaraeri

INEC registered political parties are lawful societies with clear-cut powers as outlined under Part III (specifically sections 221, 222 and 223) of the 1999 Constitution of Nigeria as amended.

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There are over ninety registered political parties in Nigeria today.

As unwieldy as these parties may be, as offshoots of the national Constitution (otherwise called fons et origo or grundnorm), political parties are additionally mandated in section 224 of selfsame Constitution to ensure that their programmes as well as the aims and objects conform with the provisions of Chapter II of the Constitution dealing with Fundamental Objectives and Directive Principles of State Policy.

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Membership of a political party is voluntary and never by force or compulsion.

It does not and should not cost an arm and or a leg to belong to a political party.

On the flip side, and consistent with the provisions of section 40 of the 1999 Constitution as amended guaranteeing the right to freedom of association (which includes the right to dissociate), no one can be compelled to join a political party or forced to remain a member of a political party.

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In the light of the foregoing therefore, it is self-evident that political mobility is legit and constitutional subject however to certain inhibitions and the recognised exceptions placed on serving members of the legislature from decamping in section 68 of the 1999 Constitution of Nigeria as amended.

A person desirous of standing election into a public office must be sponsored by an INEC registered political party as our national constitution and electoral laws frown at and prohibit independent candidacy.

Being an assemblage or association of persons from diverse backgrounds for the purpose of hunting for power via elections, a political party is bound by its constitution.

A political party constitution among other things regulates its organigram, powers and duties of its different organs or officials, rights, privileges, duties and responsibilities of members.

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It goes without saying that members of political parties are irrevocably bound by the party constitution which they freely subscribe to on joining.

However, it must be accentuated that the constitution of a political party cannot trump the grundnorm or brazenly take away the fundamental rights and freedoms of citizens as guaranteed under the national constitution and or further enunciated under the Electoral Act as routinely amended.

Contrary to the old thinking or archaic practices, enlightened legal reasoning (duly supported by contemporary judicial decisions) manifest that political parties are not private estates, personal properties or fiefdoms of select individuals or privileged few or cabals.

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A political party is and should remain a public organisation with binding constitution, discernible rules and regulations that must conform with the laws of the land as these may be subjected to legal scrutiny or judicial inquisition.

While retaining its uniqueness and peculiarities, the activities of a political party must be manifestly democratic in terms incontrovertibly prescribed by the national constitution.

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To that extent, political parties may be different in their names, logos, objects or manifestoes but they remain vehicles to actualize political freedoms and human rights of members.

Conclusively, political parties are not secret cults and cannot brazenly trample upon human rights and fundamental freedoms of their members singularly or collectively.

Political parties operate on the commanding precept of party supremacy and hallowed regime of party discipline.

Party supremacy means that the overriding interest of the party is bigger than individual interests and that no one member is above the party.

Party supremacy is buoyed up or sustained by the principle of party discipline which requires complete or absolute obedience by party members and officials of all lawful decisions of the party.

However, unlike what is currently obtainable in the polity (and sadly across party lines), party supremacy is now being equated with rule of the thumb, dictatorship or autocracy.

Fallouts from the recently held 2018 party primaries clearly buttress that the sublime concept of party supremacy has been badly abused, misunderstood or misapplied leading to toxic politics and manifestly unlawful and unjust decisions.

The avalanche of verifiable complaints, grievances and pending litigations that have ensued after the recent party primaries make it imperative that the concept of party supremacy be put in proper legal perspective in order to deepen our democratic politics.

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Party supremacy and party discipline are excellent and fantastic twin attributes that help the party members among other things to bond together, build collective momentum or consensus for taking or retaining power during inter party elections, and resolve intraparty conflicts with minimum discord or acrimony.

Sadly, the well-regarded concept of party supremacy is not exempt from the cankerworm of abuse that has bedevilled or assailed all facets of our polity as it is now an instrument of naked oppression and wanton intimidation.

Ridiculously, party supremacy is taken to mean that highly placed party officers/officials can disobey the national constitution or electoral laws or party constitution and guidelines at will, unilaterally disregard the vote of the majority, violently inflict political injustice on its members and refuse passionate entreaties for redress.

By no stretch of imagination does party supremacy authorise fraudulent party officials to scam their members by collecting huge sums of money from aspirants/candidates in circumstances that suggest advance fee fraud (popularly called 419) without making refunds.

Party supremacy does not connote unlawful disqualification of otherwise qualified party members from contesting party elections or primaries or denying victorious aspirants their victories in party primaries and arbitrarily doling out “automatic tickets” to preferred aspirants some of whom did not win or even stand for elections.

Party supremacy does not extend to deliberate or carefully orchestrated shameful infringement or infraction on human rights of members including denial of right to fair hearing and or appeals.

Ignorantly basking under the euphoria or facade of party supremacy, there are countless established cases where the National Chairmen and or National Working Committees of some of the political parties are now behaving like emperors, feudal overlords and unrestrained oppressors of conquered and hopeless party members.

This prehistoric or primitive mentality is crude and undemocratic and should not be so as the legal reality is that party is supreme subject to rule of law.

When applied to a political party, the ancient revered doctrine of rule of law will entail complete and cumulative obedience and strict observance of the provisions of the Constitution of Nigeria as amended, the Electoral Act as amended, the party Constitution and Guidelines made therefrom.

The essence of multi-party democracy decreed in our extant constitution is to widen the democratic space and further guarantee the robust enjoyment of the right to freedom of association.

Therefore, a political party must find itself irrevocably obligated or committed to obey its constitution and guidelines in addition to the mandatory provisions of the almighty Nigerian Constitution and Electoral Act.

The jurisprudential underpinning of the concept of party supremacy is that party members have solemnly agreed to behave as they have mutually agreed in the party Constitution (usually lodged with INEC as a precondition for registration) or guidelines made therefrom.

Party supremacy is not an avenue for party members or party officials to behave in an arbitrary or despotic manner or outside the constitution.

Under the concept of party supremacy, every member and or officer of the party is bound by the party constitution and lawful decisions of the party.

Hence, no one is above the party or can be law unto himself, not even the officers of the party.

Therefore, the rampant cases of rascality, impunity, lawlessness, lack of internal party democracy and trampling on citizen’s rights can never be excused under the aegis of party supremacy.

For the umpteenth time and for greater emphasis, party is supreme if it cumulatively obeys these tripartite instruments namely-

(a) the 1999 Constitution of Nigeria as amended;

(b) the Electoral Act, 2010 as amended;

(c) the Party Constitution and or Guidelines made thereunder.

Anything short of complying with the above irreducible minimum safeguards will not survive rigourous judicial furnace as party members are vested with inalienable constitutional rights to challenge illegal, unfair and unconstitutional decisions of political parties in courts of competent jurisdiction.

It is trite or settled that the Nigerian Constitution frowns at self help remedy.

Thus, aggrieved citizens are encouraged by legal compulsion to approach the courts for judicial redress instead of taking the laws into their hands.

No matter the level of perceived injustice or ill treatment, it will go against the grain of the concept of rule of law for an aggrieved aspirant in a party primary to take the laws into his hands.

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The civilized opportunities afforded aggrieved party members for legal redress in courts of competent jurisdiction have drastically reduced political killings, political violence and associated vices.

Any aggrieved party member is entitled to ventilate in judicial spheres subject to exhausting internal dispute resolution mechanisms as applicable in the circumstances of the case.

No party constitution will be allowed to oust the jurisdiction of the courts as that will amount to a naked and unlawful usurpation of the judicial powers of the courts as donated under section 6 of the 1999 Constitution of Nigeria as amended.

Hence, under section 87(10) of the Electoral Act, 2010 as amended, a legal window exists for an aggrieved aspirant to present a formal judicial complaint to either the Federal High Court, State High Court or FCT High Court concerning acts of impunity, disobedience of party constitution or guidelines or infraction of the 1999 Constitution or the Electoral Act in the conduct or outcome of the party primaries.

This means therefore that without prejudice to the principle of party supremacy, in the strictest sense (meaning stricto sensu in Latin), party primaries are not whole and entire the “internal or family affair” of the party for which reason party officials can behave as they please, denying aspirants their hard won victories or give party tickets to whomsoever they like.

Relying on section 87(10) of the Electoral Act, 2010 as amended, the court can, upon being properly approached by a dissatisfied aspirant only, inquire into or scrutinize the conduct and or outcome of party primary based on the party’s guidelines/constitution and making a pronouncement whether the primary conformed with the provisions of the party constitution/guidelines and or Electoral Act and or the 1999 Constitution of Nigeria as amended.

Upon being satisfied that there is an intolerable legal infraction, the court can proceed to make consequential orders and or grant reliefs for it is our law that ubi jus ubi remedium meaning that for every wrong, the law provides a remedy.

This exercise of supervisory powers of the judiciary over party primaries is expected to be solemn and sacred without being an open invitation to resolve political disputes or torpedo the well-entrenched principles of party supremacy.

In the 2017 decision of the Supreme Court in the celebrated case of *UFOMBA v INEC & ORS* (2017) LPELR-42079, the apex court declined the invitation to intervene in “an intra-party affair.”- a concept that has been defined to mean “A dispute between members of the party inter se, or between a member on the one hand and the party on the other.”

It further held that the courts have no power to compel a political party to sponsor a candidate outside the thin and limited spectrum available under section 87(10) of the Electoral Act as amended.

It is a living law that all judicial powers and discretions must be exercised judiciously and that courts are not interested in resolving political disputes or answering political or academic questions.

This means that the discretion vested in a court is not a power to be exercised arbitrarily or capriciously.

Thus, in settling pre-election or other contentious political cases, matters or disputes, a court is expected not to allow itself to be used as an engine of fraud or to be used to work hardship on aggrieved party members or perpetrate injustice.

In issuing preservative orders and or order of injunctions or delivering judgements arising from party primaries, the court must avoid political excursions or being used to upset the party momentum as the courts do not resolve political disputes.

The business of the court is to uphold the rule of law and dispense justice to the oppressed.

An unjust legal wrong done an aspirant or party member should not go without redress if he properly presents it before a court regardless of party supremacy.

This is a delicate balance which the courts are enjoined to maintain in all political cases.

A vigilant court that is imbued with a sense of justice must not only dispense justice to the parties before it, but must also protect the interest of all necessary parties to the matter in issue.
A court that is alive to its responsibilities must never allow itself to be used as an engine of fraud or instrument of oppression by resisting fraudulent gang up by mischievous party officials designed to suppress the democratic rights of aspirants.

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Party supremacy does not connote that aggrieved aspirants must not approach the courts for judicial succour in line with the right to recourse to judicial redress available under the national Constitution and Electoral Act.

This fine legal point must be emphasised very strongly because some of the parties are already threatening to expel aggrieved aspirants or members who dragged the party to court for perceived injustices.

This line of thinking is a clear invitation to chaos and confusion.

An aggrieved aspirant is well within his constitutional right to present his grievance to the court for judicial redress.

What is required is evidence that internal resolution mechanism or opportunity was explored by the aggrieved aspirant to no avail and it is for the court to determine from the welter of evidence before it whether it was exhausted or not.

The importance of free, fair and transparent party primary cannot be overemphasized as an irreducible component of democratic politics envisaged under the national constitution and electoral laws.

It is through party primaries that candidates for the general election are elected.

Needless to overemphasise that a party should avail its members a level playing field for attaining their political aspirations.

Once the party primaries process is not transparent, free and fair, the larger society is short-changed as credible persons are shut out from the ballot and the voter will have little or nothing to choose from.

There is no substitute for transparent primaries and internal party democracy even as the parties are rueing that their dissatisfied members have taken party matters to the courts.

Where party members are availed a level playing field, it builds cohesion, promotes easy reconciliation with or pacification or placation of aggrieved members, engenders excellent team spirit and reinforces the fabric of party supremacy.

When aspirants are put on the ballot via stolen mandate, it negates easy reconciliation and they carry this same desperation into the general elections leading to high incidences of electoral rigging and violence.

unfortunately, because the 2018 party primaries have been conducted in the most fractious and lawless manners (especially in the Governorship, National and State Assemblies), these have led to a harvest of a deluge of litigations in courts thereby putting additional but avoidable pressure on the already congested workloads in our court systems.

Aggrieved aspirants are within their constitutional rights to seek legal redress.

The court remains not just the last hope of the common man, but the sentinel of justice and bulwark or palisade of democracy.

Irrespective of the temptations and allures from our politicians, the courts must continue to insulate themselves from those dangerous overtures that compromise justice, fair play and good conscience.

The current situation where desperate politicians procure midnight injunctions, “black market” or “arrangee injunctions” and compromised judgements to suppress the democratic rights of others do not augur well for the image of the judiciary.

With the party primaries formally over and INEC substitution window in all genre of offices to which parties are sponsoring candidates almost nearing the end, the remainder remedy for aggrieved aspirants lie with the judiciary.

The close of substitution window means that the political parties have no more opportunity to nibble at candidature in the general election.

INEC will definitely be bound by all lawful orders or final judgements of courts regarding pre-election issues presented to the courts for adjudication.

We implore the courts to continue to live up to its assigned solemn constitutional responsibilities and societal expectations as the last hope of the oppressed.

We encourage our politicians to play democratic and decent politics while party members and officials are duty bound to recognise that party supremacy is not cast in steel as it is subject to rule of law.

A new normal is possible!

Prof Obiaraeri, N.O., Ph.D (Law)

The ☆☆☆☆☆ 5-Star Civilian General etc.

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