Illegality of outrageous nomination fees

Members of the All Progressives Congress (APC) willing to participate in the presidential primary election have been directed to pay N100 million for the nomination and expression of interest forms.

Similarly, the nomination and expression of interest forms for those seeking the party’s ticket to contest the governorship election in their respective states cost N50 million.

Aspirants for the Senate, House of Representatives and Houses of Assembly are to cough out N20 million, 10 million and N2 million respectively.

The party granted a financial waiver to all female aspirants on its platform and approved a 40% discount for aspirants aged 35 and below.

By asking the young people to pay N60 million (being 40 percent discount off the said N100 million) the APC has made a mockery of the Not Too Young to Run Act enacted by the Federal Government under its control.

It is undoubtedly clear that the N100 million deposit fixed by APC for its presidential aspirants has excluded the majority of the alleged 40 million members of the party from participating in the party primary elections.

The APC ought to have realised that by restricting politics to the affairs of fat cats it has violated Article 13(1) of the African Charter on Human and People’s Rights (Ratification and Enforcement) Act which states 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.”

The apparent endorsement of the controversial nomination fees by President Muhammadu Buhari smacks of hypocrisy because, in 2014, he had told Nigerians that he had to borrow N27.5 million to buy his nomination form.

In condemning the skyrocketing nomination fees at the material time, I did say that “Under section 131 of the Constitution any Nigerian citizen who has attained the age of 40 years and is a member of a political party and sponsored by that party and has been educated up to secondary school level is qualified to contest for the presidential election in Nigeria.

Section 87 of the Electoral Act which provides for the nomination of candidates by political parties has not prescribed that aspirants shall pay any fee. In the circumstance, political parties may only be permitted by law to charge administrative fees.”

However, in a careless attempt to play on the collective intelligence of Nigerians, the Peoples Democratic Party (PDP) accused the APC of “inflicting maximum pains on its members” and that the fees cast the ruling party “in the image of rogues and hypocrites”.

However, the PDP had earlier pegged its fees for both the expression of interest and nomination forms at N40 million for the President and N21 million for Governorship aspirants. Those aspiring for Senate, are to pay N3.5 million, N2.5 million for those aspiring for the House of Representatives, while state House of Assembly aspirants will pay N600,000

The party’s NEC also approved a 50 per cent reduction in nomination fees for youths aged 25 to 30 years for various elective positions. In justifying its own high nomination fees the opposition party said that “ We are a mass movement for the Nigerian people. This is why our nomination fees are soft and democratic”.

Since the national minimum wage is N30,000 per month the deposit of N100 million or N60 million has excluded millions of workers from contesting the presidential election in Nigeria. Even retired professors, judges and permanent secretaries are not in a position to pay the deposit demanded by the APC and PDP from their meagre pension.

Ironically, Nigeria houses the second largest population of poor people in the world but the nomination fees collected from aspirants by APC and PDP are the highest in the world. Tunji Ariyomo, the National Coordinator of Nigeria Focus Group has said that “To run for a governorship position in any state in the US in 2022, your political party’s primary filing and nomination fee can range from as low as $0 (yes, zero) to $3,750 (or N1.8m). The average fee is thus circa $2,000 (or N980,000). These charges cover what is labelled in Nigeria as nomination and expression of interest forms’ fees.”

Indeed, in Bullock v Carter 405 U.S 134 (1972) the appellants who sought to become candidates for local office in the Democratic primary election challenged in the District Court the validity of the nomination fees up to $8, 999. It was held that the fees contravened the Equal Protection Clause of the 14th Amendment. It was the view of the Judge that “By requiring candidates to shoulder the costs of conducting primary election through filing fee by providing no reasonable alternative means of access to the ballot, the State of Texas has erected a system that utilizes the criterion of ability to pay as a condition to being on the ballot, thus excluding some candidates otherwise qualified and denying an undetermined number of voters the opportunity to vote candidates of their choice.”

In Canada, candidates are no longer required to pay deposits for federal elections. In the case of Szuchewycz v. Canada (Attorney General), 2017 ABQB 645, Justice Avril Inglis of the Court of Queen’s Bench of Alberta declared that the deposit requirement infringed Section 3 of the Canadian Charter of Rights and Freedoms and could not be justified under Section 1 of the Canadian Charter of Rights and Freedoms. Before the Szuchewycz v. Canada ruling, a candidate for Member of Parliament needed to place a $1,000 deposit.

Since the Constitution of the Federal Republic of Nigeria, 1999 is the basic law of the land, any Act or law or policy which is inconsistent with the same will be struck out. Thus, the payment of outrageous nomination fees which is not one of the conditions for contesting elections under the current democratic dispensation is illegal and unconstitutional on grounds of inconsistency with the Constitution.

In the case of the Independent National Electoral Commission v Alhaji Abubakar Balarabe Musa & 4 Ors (2003) 10 WRN 1, certain guidelines issued by the Independent National Electoral Commission for the registration of political parties were struck down by the Supreme Court on the ground that they were not in consonance with sections 40 and 222 of the Constitution.

Thereafter, in the case of the National Conscience Party & 23 Ors v Independent National Electoral Commission (Suit No FHC/ABJ/CS/ 42/2003), the Plaintiffs challenged the announcement of the defendant to charge as “processing fees” amounts ranging from N500,000 for presidential candidates to N25,000 naira for those seeking election as local government councillors.

The presiding Judge, the Honourable Justice Binta Murtala-Nyako agreed with the submissions of the Plaintiffs’ counsel, Chief Gani Fawehinmi SAN and said, “Going through the constitution and the electoral act 2002, I fail to see where INEC was empowered to prescribe and demand such processing fees…I, therefore, declare the processing fees charged by the defendant illegal and unconstitutional.”

In the same vein, in National Conscience Party v Ekiti State Independent Electoral Commission (2015) NHRLR (Part 1) on Page 1, the Ekiti State High Court nullified the demand for the payment of nomination fees and production of tax clearing certificate as preconditions for contesting the 2004 local government elections.

In upholding our submissions the presiding Judge, the Honourable Justice Babalola said that “The demand for the production of tax receipt or tax clearance certificate showing evidence of tax payment as at when due for the last 3 years before the date of election and the demand of N5,000.00 deposit in the case of candidates contesting as councillor to the commission are in my view attempts to add or alter sections 106 and 107 of the Constitution of the Federal Republic of Nigeria, 1999.

The two demands are inconsistent with the provision of section 7(4) and 106 of the Constitution of Nigeria, 1999 and therefore declared null and void to the extent of their inconsistency”. The appeal filed against the judgment by the Ekiti State Independent Electoral Commission was dismissed by the Court of Appeal.

In Osun State Independent Electoral Commission v National Conscience Party (Unreported Appeal No SC.40/2009) the Osun State High Court nullified the payment of nomination fees by all registered political parties as a condition to contest March 27, 2013, local government election on the state.

The Appellant had issued guidelines which required each chairmanship candidate to pay a sum of N50,000 and each councillorship candidate to pay N25,000 to the coffers of the Appellant. The High Court held that the Defendant lacked the power to prescribe conditions for the eligibility, qualifications and disqualifications of candidates to contest Local Government Elections in Osun State outside the conditions stipulated by the Constitution of the Federal Republic of Nigeria 1999.” The appeal filed by the appellant against the judgment was dismissed by the Court of Appeal and later by the Supreme Court.

In the People’s Democratic Party v Edo State Independent Electoral Commission & Another (Unreported Suit No. B/18/OS/13), the Honourable Justice N.A. Imoukhuede declared the requirement of a non-refundable deposit of N100,000.00 (One hundred thousand Naira) for Chairmanship candidates and N50,000.00 (Fifty thousand Naira) for Councillorship candidates was in breach of the provisions of section 7(4), 106 and 107(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Consequently, the learned trial judge set aside the collection of the deposits by the Edo State Independent Electoral Commission.

It is submitted that if the electoral bodies that are vested with the power to conduct elections are prohibited from collecting meagre nomination fees from candidates what is the legal basis for collecting billions of Naira from aspirants by political parties? However, while political parties cannot charge outrageous nomination fees they may be permitted to direct aspirants to pay nominal fees for administrative expenses.

In Independent National Electoral Commission v Balarabe Musa, the Supreme Court (supra) refused to strike down the N100, 000 as part of the conditions prescribed by INEC for the registration of political associations as political parties. According to Justice Niki Tobi of blessed memory:

“It is common knowledge that the process of registration involves money. The application forms and other accompanying documentation involve money. As I said above, I do not expect the first appellant to play the role of a Father Christmas. Somebody has to defray part of the expenses, and it should be the political association that wants to be recognised as a political party under Section 222. Considering the cost of production of material and labour, I do not see the amount of N100,000 as too much.”

The administrative fee of N100,000 was allowed by the Supreme Court because it was the era of paper documentation. But with the incredible advancement in technology, paper documentation is no longer necessary.

Since the applications are going to be filled and submitted while payment of nomination fees will be made online by aspirants no political party should charge more than N10,000 for administrative purposes.

After all, the registration fee charged by the Joint Matriculation Examination Board is less than N5,000 per candidate. Therefore, the APC and PDP should withdraw the outrageous fees and charge administrative fees of not more than N10,000 per aspirant.

It is submitted that if the electoral bodies that are vested with the power to conduct elections are prohibited from collecting meagre nomination fees from candidates what is the legal basis for collecting billions of Naira from aspirants by political parties? However, while political parties cannot charge outrageous nomination fees they may be permitted to direct aspirants to pay nominal fees for administrative expenses.

In the Balarabe Musa’s case the Supreme Court refused to strike down the N100, 000 as part of the conditions prescribed by INEC for the registration of political associations as political parties. According to Justice Niki Tobi of blessed memory:

“It is common knowledge that the process of registration involves money. The application forms and other accompanying documentation involve money. As I said above, I do not expect the first appellant to play the role of a Father Christmas. Somebody has to defray part of the expenses, and it should be the political association that wants to be recognised as a political party under Section 222. Considering the cost of production of material and labour, I do not see the amount of N100,000 as too much.”

The administrative fee of N100,000 was allowed by the Supreme Court because it was the era of paper documentation. But with the incredible advancement in technology, paper documentation is no longer necessary.

Since the applications are going to be filled and submitted while payment of nomination fees will be made online by aspirants no political party should charge more than N10,000 for administrative purposes.

After all, the registration fee charged by the Joint Matriculation Examination Board is less than N5,000 per candidate. Therefore, the APC and PDP should withdraw the outrageous fees and charge administrative fees of not more than N10,000 per aspirant.

Finally, Nigerian courts have repeatedly maintained that the National and Independent Electoral Commission and State Independent Electoral Commissions lack the legal capacity to add to, alter, enlarge, curtail, or repeat the conditions contained in sections 106 and 107 of the Constitution which have covered the field with respect to the qualifications and disqualifications of candidates contesting elections in Nigeria.

Therefore, as political parties are incapable to prescribe conditions for the eligibility of candidates outside the provisions of the Constitution the nomination fees of N100 million or N40 million pegged by the APC and PDP respectively are illegal and unconstitutional as they constitute a flagrant violation of sections 40, 106 and 107 of the Constitution as well as article 13(1) of the African Charter on Human and Peoples Rights Act. The illegal, insensitive and immoral nomination fees should be cancelled without any further delay.

Falana, a Senior Advocate of Nigeria, is a Lagos based human rights lawyer