Is Placing Restriction On Number Of Political Parties Unconstitutional? By Abdulrasheed Ibrahim | Nairalaw

There is no better time to discuss the above question than now
.This is so because some political parties are still licking their
wounds sustained after losing out or performing woefully in the
last Presidential and National Assembly Elections held on the 23rd
February 2019.The election results are now in the public domain. I
do not see how majority of these political parties can perform
miracle in Gubernatorial and Houses of Assembly elections scheduled
for 9th March 2019. In one of my previous articles on this platform
titled ELECTORAL DEFEAT: CHOOSING BETWEEN THE LAW AND LAWLESSNESS,
I said:

“…This brings us to the formation and number of the political
parties in Nigeria. While one does not have anything against the
desire of the Nigerian citizens to form and belong to any political
parties of their choice as fought for by the late Chief Gani
Fawehinmi (SAN) in the case of INEC Vs. Musa (2003) 3 NWLR (Pt.806)
72 .The reality on the ground today is that the number of the
political parties in Nigeria has gone out of proportion…The beauty
of democracy is that it allows every one interested in a political
office to come out to test his popularity and acceptance. Whether
our politicians may have a rethink on the proliferation of
political parties may be an issue for another day…”

If at the conclusion of this year General Elections, the
performances of all the registered political parties become
apparent like the day light and the Independent National Electoral
Commission (INEC) in its wisdom decides to send many of these
political parties packing for poor performance or non performance,
the outcry will surely be overwhelming. You know Nigerian
politicians whether their cases have merit or not will like to go
to court to file cases to argue that their fundamental rights to
freedom of association as guaranteed by the Constitution have been
violated by the INEC . There is no doubt that Section 40 of the
1999 Constitution of the Federal Republic of Nigeria (as amended)
provides thus:

“Every person shall be entitled to assemble freely and associate
with other persons, and in particular he may form or belong to any
political party, trade union or any other association for the
protection of his interests.Provided that the provisions of this
section shall not derogate from the powers conferred by this
Constitution on the Independent National Electoral Commission with
respect to political parties to which that Commission does not
accord recognition.”

According to the Independent National Electoral Commission
(INEC), there are 91 registered political parties as at today while
there are still about 140 pending applications seeking to be
registered as political parties. Although the case of MUSA Vs INEC
(supra) might seem to have tied the hands of Commission as to the
restriction of the registration of the political parties, I am
still strongly of the view that looking critically at the Sections
40 and 45 of the Constitution coupled with the third schedule that
stipulates the power of the Commission, it can restrict the
registration of the political parties. With the present experiment
in which about 91 political parties have taken part in the 2019
elections with majority of them performing woefully has shown that
Nigeria as a nation is not in need of such outrageous number of
political parties. In that election only the ruling All Progressive
Congress (APC) and the major opposition People Democratic Party
(PDP) made meaningful impact. To restrict the formation of the
political parties does not in anyway amount to the breach of the
Constitution. If the political parties are very few in number the
choice will now be for every citizen to join any of the available
political parties to exercise their political rights.

The proliferation of political parties without any restriction
is nothing but waste of time and resources as recently seen in the
2019 General elections. During the Nigeria’s return to democracy in
1979, only five political parties took part in that General
election conducted under the military regime of General Olusegun
Obasanjo. General Ibrahim Babangida during his tenure after a
belonged transition to civil rule put in place two political
parties structure of Social Democratic Party (SDP) and National
Republican Convention (NRC) that contested in the 1993 presidential
election considered to be the most free and fair election in the
history of the nation. It was won by the late Chief M.KO. Abiola of
SDP but was annulled by Babangida himself. Perhaps if that
political structure had been allowed to stay then, we may not have
been where we are today. General Abacha with his zeal for self
succession brought about another set of five political parties
metaphorically described by late Chief Bola Ige as five fingers of
leprous hand. The political parties structure that eventually led
to the return of democracy in 1999 under the regime of General
Abdulsalam Abubakar was the triplet of PDP, APP (later ANPP) and AD
(late AC and ACN) and since then the history of formation of
political parties in Nigeria as never be the same again.

The case of MUSA Vs INEC opened the floodgate for the formation
of more political parties. On the last count, 91 are presently
standing struggling to be voted into power.With the performance of
the majority of them in this 2019 General elections, should they
still be allowed to take part in the future elections? The drama
that many of these parties have thrown up was that you have a
situation where some politicians who could hardly win
Councellorship positions in their localities coming out to say they
wanted to contest for the position of the President. Now that the
chip is down, they have known their level. The lesson many
politicians have refused to learn in African politics is that
winning elections is not about proliferation of political parties
but rather by parties coming together to form a strong political
party with great ideologies. This was the strategy employed by some
political parties that came together to form All Progressive
Congress (APC) prior to the 2015 General election to dethroned the
People Democratic Party (PDP) after 16 years in power.

There is this argument that in United States of America (USA)
and the United Kingdom (UK) there are hundreds of political
parties.It is true that as at 2015, electoral commission in UK was
said to have registered about 492 political parties including the
popular partie such as the Conservation and Labour Parties whose
founding were dated as far back 16th and 17th Centuries. So also in
the USA where you equally have countless number of political
parties including the Democratic Party founded in 1828 and the
Republican Party founded in 1854.In the same USA there used to be
some other parties like Federalist Party and Anti-administration
Party founded as far back as 1789 as well as Democratic-Republican
Party founded in 1792 but are no longer in existence in America
today.

I do not to subscribe to the notion that because there are
hundreds of political parties in the USA and UK, we must also go
their ways. To borrow from the words of our great Hon. Justice Niki
Tobi, JSC, in the case of Caribbean Trading & Fidelity
Corporation Vs. Nigerian National Petroleum Corporation (2002) 5 SC
(Pt. I) “we cannot continue to pay loyalty to our colonial past
with such servility or servitude. After all, we are no more in
slavery”. Even in those countries how many of those mushroom
political parties have made it to the top apart from the Republican
Party and the Democratic Party in USA or Conservative Party and
Labour Party in the UK? How many political parties in Nigeria have
stood the test of time as in those part of the world where
democracy is being practised ? Rather than politicians continue to
insist on forming political parties indiscriminately, will it not
be advisable for them to embrace merging among the existing ones to
form at least about five formidable political parties?

The Independent National Electoral Commission (INEC) will do
well to give red cards to those political parties that have
performed woefully in the 2019 General election. If they feel that
their constitutional rights as guaranteed by the Constitution have
been violated let them go to court to ventilate their grievances
where they should be asked to show their score sheet and
performance in the 2019 elections. We must do away with the
political system that allows politicians to create political
parties that do not add value to our democratic system. The irony
of political system being operated in this country is that we have
so many politicians who are political prostitutes that in the
morning they belong to a particular political party and before the
night falls they have cross carpeted to another political party.The
law must be made strict this time around that the moment a
politician elected on the platform of a particular political party
cross carpets to another political party,he automatically loses the
position regardless of the political position he or she occupies.
This will surely go a long away to check mate the growth of
opportunists rather than principled politicians in our political
system.

Some people may still continue to argue that restricting the
number of the political parties in this country will amount to
denying the people the right to associate freely and form political
parties of their choice.The recent experience has shown that it is
not the number of the political parties that we have that matter
but the meaningful impact they can make and the value they can add
to the democratic system.It is better to have very few formidable
political parties on the ground than having close to hundred
political parties where majority of them performed woefully in a
General election.There was a time in this country when the banks
were being proliferated and when that was having negative impact on
the economy,Central Bank introduced the minimum capital base that
must be met by each bank or got its license revoked. Nobody taught
them before they began to merge and became consolidated and those
that could not meet the deadline went underground and died
naturally. Why can’t the similar acid test be applied to the
present 91 political parties by the Independent National Electoral
Commission (INEC)? We must prefer quality of the political parties
to the quantity of political parties. With this last exercise and
experiment .I think we all need to have a serious rethink on the
indiscriminate proliferation of the political parties and decide
whether it is appropriate” for our political system or not.

REMARKABLE PRONOUNCEMENT ON FORMATION AND MONITORING OF
POLITICAL PARTIES

“Political parties are essential organs of democratic system.
They are organs of political discussion and of formulation of
ideas, policies and programmes. Plurality of parties widens the
channel of political discussions and discourse, engenders plurality
of the political issues, promotes the formulation of competing
ideas, policies and programmes and generally provide 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. 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. In interpreting the provision 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.”

Per AYOOLA, JSC in INEC Vs. Musa (2003) 1 SC (Pt. 1) Pgs.
117-118 Lines 30-40

THE SETTLED PRINCIPLE OF LAW

On pre-election matter instituted before the conduct of an
election

It is settled law that a pre-election matter instituted prior to
the conduct of an election subsists and the High Court in which it
was instituted continues to have jurisdiction to hear and determine
same even after the conduct of the election. This principle is
founded on the principle of lis pendens which prevents any transfer
of right or the taking of any step capable of foisting a state of
complete helplessness/hopelessness on the parties or court during
the pendency of an action in a court of law.

See Amaechi Vs. INEC (2008) ALL FWLR (Pt. 407) ; Odedo Vs. INEC
(2008) 17 NWLR (1117) 554 at 622-623;Dan-Jumbo Vs. Dan-Jumbo (1999)
11 NWLR (Pt.622) 445; GWEDE Vs. INEC & ORS (2014) Vol. 10-11
MJSC Pg.43 Paras A-C

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10th March 2019