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Peter Obi, section 221 of the Constitution and campaign funds from the diaspora

Recently, Nigerians in the diaspora offered to raise and donate USD 150 million towards the campaign of the presidential flag bearer of the Labour Party, Peter Obi. This caused quite a stir throughout the country and raised a debate among legal experts on whether Obi, by law, could accept the donation, bearing in mind Section 225 (3) (a) and (b) of the Constitution, which provides that no political party may hold, possess or retain any funds or other assets from outside Nigeria.

One argument is that the law expressly prohibits “political parties” and not candidates, thus, there is no reason for Obi to refuse the support. On the other side of the divide, is an argument based on the court’s interpretation of Section 221 of the Constitution in Amaechi v INEC, where the court held that it is political parties that win elections not candidates, and candidates, therefore, are representatives of their parties. By this reasoning, the prohibition on political parties in Sec 225(3)(a) and (b) would still apply, because Obi is a representative of the Labour party and cannot accept donations that would be illegal for the party to receive.

As a result of the allegations that Obi had sought for and planned to receive financial support from Nigerians in the diaspora, the Independent National Electoral Commission (INEC) was asked by a certain group – ‘Tinubu-Shettima Connect’, supporters of the APC presidential flag bearer, Bola Ahmed Tinubu, to disqualify Peter Obi and the Labour Party from the presidential race. The group also threatened legal action against Peter Obi and the Labour Party.
Obi, on his part, has denied all allegations connected to the said funds referring to them as, “baseless speculations”.
A crucial question, however, has been raised in view of the recent conversations – do we vote political parties into office or do we vote candidates? And by extension, in this election are those in support of Peter Obi voting for him or for the labour party?

 If it is the political party that wins at elections, at what point in the process does the candidate become a representative of the people’s will and no longer an extension of the party?

Section 221 of the constitution and Amaechi v. INEC

Section 221 of the Constitution provides that “no association other than a political party shall canvass for votes for any candidate at any election or contribute to the funds of any party or to the election expenses of any candidate at an election.”
The Supreme Court in Amaechi v INEC interpreted this section thus: “the above provision effectually removes the possibility of independent candidacy in our elections, and places emphasis and responsibility in elections on political parties…if as provided in Section 221, it is only a political party that canvasses for votes, it follows that it is a party that wins an election. A good or bad candidate may diminish the prospect of his party winning but at the end of the day, it is the party that wins or loses an election”.

In the case of Amaechi v INEC, Rotimi Amaechi contested to be the Rivers state governorship flag bearer for the Peoples’ Democratic Party in 2007, against seven other members of the party. He emerged as the winner after the primary elections polling 6527 out of 6575 votes. Amaechi’s name was submitted to the INEC but was later substituted with that of Celestine Omehia, without a court order to that effect. Amechi sued the PDP, INEC, and Celestine Omehia claiming wrongful substitution and asked the court to declare such substitution null and void.

Read also: Peter Obi and the 2023 presidential election

Thus, the court had to determine whether political parties had the unfettered right and power to substitute a candidate. Furthermore, the court had to determine whether Amaechi ought to be declared the winner of the already held governorship election, even though he was not part of the governorship elections.

The defence argued that since Celestine Omehia, who substituted Amaechi, had won the gubernatorial elections, the Court could not declare Amaechi the governor, because the court will be taking Celestine Omehia’s vote and giving it to Amaechi.
Based on the interpretation of section 221 above, the court held that it is a political party, not a candidate that wins elections. From this then, it established that Amaechi was the right candidate and winner of the gubernatorial elections based on the fact that by their – political parties- constitutions, the candidate for any election must arise from their party primaries.

The Court stated that “if the political parties in their own wisdom had written it into their constitutions that their candidates should emerge from their party primaries, it becomes unacceptable that the court should run away from the duty to enforce compliance with the provisions of the parties’ constitutions.” It was therefore the reasoning of the Court that it is the duty of the court to ensure compliance by political parties to their constitution.
It was on the basis of this that the court held that Amaechi’s substitution was invalid and it had the power to remedy such invalidity, and acted accordingly.

Implications of the understanding that political parties win elections, not candidates

The first worrisome implication of this understanding that political parties win elections is that it is the winning political party that occupies the seat of governance, not a person. This raises a conflict of interest issue. If it is the political party that wins an election, at what point in the process does the candidate become a representative of the people’s will and no longer an extension of the party?

If according to the court, candidates are only representatives of their parties, candidates may prioritise representing the interests of their parties over that of Nigerians in an office with capacities and powers that are reserved for service to the people. Furthermore, where bad decisions are made by the elected government, should citizens should call out the various political parties and not the individuals in office as those responsible for the issues?

Secondly, this position of the law implies that when a voter casts a vote it is for a political party and not a candidate, which may not be the case. A recent poll conducted by BusinessDay titled, “who do you vote for in an election” revealed that over 90% of participants vote for candidates and not the political parties.

Thirdly, wouldn’t the interpretation that a political party wins elections be contradictory to the way organs of government are constitutionally prescribed to function? By the provisions of the constitution, it is not the political party, but the candidate now known as president, who is the Commander-in-Chief of the Armed Forces or Minister of Petroleum.

Given the above, could it be the intention of the lawmakers to infer that a political party takes on the role of the executive arm of government and not the candidate voted by the electorate?

It must be noted that the court in Amaechi v INEC applied the provision within the context of the substitution of candidates by political parties. Given the above, perhaps a better utilisation of the court’s interpretation of section 221 in Amaechi v. INEC, outside that context should be that a political party is a vehicle of like-minded persons through which a candidate representing the majority will and ideals of the people is elected into office.

Conclusion

While the issue of diaspora funding may remain estopped by a combined interpretation of sections 221 and 225 (3) (a) and (b) of the Constitution, it is crucial that the decision of the court in Amaechi v. INEC is not taken out of context.

In ideal circumstances, the candidate and the political party share the same ideology, vision for the nation and desire for diligent public service, which is validated and selected by the people through their vote. Where this is so, the distinction of whether a political party or candidate wins an election may be mute as the effect would arguably be the same. However, where the candidate in office still sees themself as an extension of the political party and is supported by the interpretation in Amaechi v. INEC, it becomes dangerous.

Thus, there must be the understanding that there is a detachment of a successful candidate from their political party. While it will be naive to ignore the politics of power among rivalling political parties, the citizens must have the confidence that whoever is voted into office has the ability to effectively balance these issues with fulfiling their duties to the people.

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