The ECOWAS Court of Justice on Wednesday, 27th October 2021 in Abidjan dismissed the claims in a suit filed by five Nigerians alleging that the ‘outrageous cost of nomination and declaration of interest forms imposed on political aspirants by political parties’ violate the right to participate in the country’s governance as it takes political office aspirations beyond the reach of the middle class and the poor.
The Applicants- Kenneth Roberts, Goodluck Edafe, Matthew Oguche, Macauley William-Jumbo and Josephine Okeke – residents of different cities of the country and represented by their lawyers – F. Ogwuche, K. Nwafor, M. William-Jumbo and J. Okeke alleged in suit no ECW/CCJ/APP/49/18 filed on 18 October 2018 that the imposition amounts to a gradual and systematic entrenchment of plutocracy as the forms have become a vehicle to completely marginalise and to exclude some people.
The Applicants relied mainly on Article 13 of the African Charter on Human and Peoples’ Rights, Article 21 of the Universal Declaration of Human Rights, as well as Article 25 of the International Covenant on Civil and Political Rights all relating to equal access to public office, in submitting that expression of interest and nomination form fees fixed arbitrarily and exorbitantly has led to a marginalisation of political office aspirants.
They added that political aspirants are required to contest elections on the platforms of political parties after purchasing their expensive forms to contest their primaries and that such an act “is a gradual and systematic entrenchment of plutocracy, a Government of the rich, by the rich and for the rich to the exclusion of the poor and middle classes”.
But delivering judgment in the suit, the judge Rapporteur and presiding judge, Honorable Justice Edward Amoako Asante said the clause in Article 13 of the African Charter relied on by the Applicants which provided that “ Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law,” has ‘put the national authorities in the best position to enact local laws in accordance with the Charter to address peculiar circumstances.’
While the Court acknowledged that the facts/circumstances that gave rise to the suit as presented by the Applicants point to a restrictive practice by political parties in imposing exorbitant fees to secure party nomination to contest for some important national electoral positions, it noted that the impugned practice is not directly attributable to the Respondent to entail its responsibility and accountability.
Moreover, the Court noted that while the country’s electoral commission was granted ‘minimal responsibility to “monitor the activities of the political parties,” the current mandate ‘clearly excludes control over the levying of fees by the political parties against those who expressed interest and picked their nomination forms to be sponsored by them.’
It therefore agreed with the Respondent when it asserted that “there is no legal basis as of now that vests the Respondent with the authority to control the charging or capping of nomination fees by political parties.”
Citing two of its decided cases, the Court acknowledged that while it is the duty of the State to properly regulate the conduct of elections to give meaning to the right guaranteed under Article 13, it noted that such a right is not absolute.
In the case filed by His Excellency Vice President Alhaji Samuel Sam-Sumana against the Republic of Sierra Leone, the Court held that “the right of a person to participate in government of his or her State is a recognized and enforceable human rights (but) that this right is not absolute but can be encroached upon in accordance with the law.”
In the second case of Obinna Umeh and six others against the Federal Republic of Nigeria, the Court held that ‘the right to participate in the government of one’s country as provided under Article 13 of the African Charter is not absolute due to the drawback clause that gives the State party the leverage to enact laws to streamline the realization of individual aspirations of participants in the government of the State.”
It therefore held that since “political parties, as per the extant laws of the Respondent, are juristic persons whose internal arrangements are exclusively reserved for its members save areas legislated out to be controlled and supervised by the electoral commission, the cumulative effect of the extant laws of the Respondent have made the charging or capping of expression of interest and nomination fees, a prerogative of the political parties, obviously in pursuant to their constitutions and internal rules and regulations which are promulgated and agreed upon by their members.”
In conclusion, the Court acknowledged that the Respondent’s electoral legal regime does restrict the right of the Applicants and for that matter the ordinary citizens in the low income from participating directly or indirectly in the elections of the country and urged them to take solace in their representation through their party representatives.
“Indeed, if the Applicants are members of any registered political party capable of submitting and sponsoring candidates to INEC for political office in the Respondent, then they have indirectly participated in the government of the Respondent anytime their parties field candidates for national elections,’ the Court said.
The Court has earlier dismissed the preliminary objection of the Federal Republic of Nigeria about its competence to hear the matter and ruled that it has jurisdiction and that the case was therefore admissible.
The lawyer representing the government, Mrs Maimuna Lami Shiru, had challenged the competence of the Court to hear the matter which she described as concerning internal affairs and outside the mandate of the ECOWAS Court and that the case lacked substance.
She further contended that the fees were not excessive as alleged by the Applicants as the political parties presented at least five aspirants cutting across various socio-economic levels of citizens during their party primaries.
Other judges on the panel were Justices Gberi-Be Ouattara and Januaria Moreira T. Silva Costa.