What the law says on funding political parties, candidates through foreign donations
The Attorney General of the Federation (AGF), Mallam Abubakar Malami (SAN), recently commented on issues surrounding the propriety of diaspora funding for candidates and political parties for the 2023 general elections.
Media reports had quoted the AGF as singling out the presidential candidate of the Labour Party (LP), Mr Peter Obi in his comment. He had said: “Any Nigerian who lives abroad, funding the campaign of Peter Obi shall be arrested. It is against our electoral law.
“We’ve received a signal that some individuals, mostly Nigerians living abroad, have taken it upon themselves to fund the campaign of Mr Peter Obi who’s the Presidential candidate of the Labour Party in the forthcoming Presidential election.
“What these individuals fail to understand is that Nigeria is a democratic nation governed by democratic rules and regulations. It is against the electoral act for those living abroad to sponsor any candidate in an election. Those involved should desist from such acts or have us to contend with. We will resist it by all means. Such funds cannot enter Nigeria. Although we have put measures on the ground to apprehend those who will get themselves involved insuch an act.”
Lawyers have weighed in on certain positions of the AGF on the matter. Akintayo Balogun, an Abuja-based lawyer, said neither the 1999 Constitution of Nigeria (as altered) nor the Electoral Act, 2022 provide a blanket ban on foreign donations to either political parties or their candidates.
According to him, the only duty placed on political parties is when funds and assets have been amassed from outside the country. He pointed out that there is also a limit to the amount an individual can contribute in support of a candidate. Balogun explained that it is the duty of a political party and its candidate to be vigilant and monitor the activities of support groups to forestall unlawful activities and the laundering of funds under its name.
“Contrary to the statement by the Attorney General of the Federation, by these provisions, political parties are not banned from owning assets outside the country. The only duty that lies on the political party is to ensure that the assets belonging to the political parties are paid over or transferred to INEC within 21 days of its receipt in Nigeria. Once the assets are declared and/or transferred to INEC in line with the provisions of the Constitution and the Electoral Act, the political parties are free from any wrongdoing.
“The Attorney General of the federation and any other interested party cannot read into the Constitution or Electoral Act what does not exist or is not contained there. The provisions here are clear and unambiguous and should be given their ordinary meaning,” he said.
Citing the case of AG, ONDO STATE v. AG, EKITI STATE (2001) 17 NWLR (Pt.743) 706 at 756, PARAS, the lawyer explained that D . E, Kutigi, J.S.C. (later C.J.N), in his lead judgment in the above matter stated the rules governing the interpretation of statutes.
Kutigi had held: “It is certainly a cardinal principle of interpretation that where in their ordinary meaning the provisions are clear and unambiguous, effect must be given to them without resorting to any aid internal or external. It is the duty of the court to interpret the words of the lawmaker as used. Those words may be ambiguous, but even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limited.”
He went further to say that the only relevant section of the Constitution in respect of funding or owning assets by political parties in the diaspora is provided for under Section 225(3), which states that (3) No political party shall (a) hold or possess any funds or other assets outside Nigeria, or (b) be entitled to retain any funds or assets remitted or sent to it from outside Nigeria. (4) Any funds or other assets remitted or sent to a political party from outside Nigeria shall be paid over or transferred to the Commission within 21 days of its receipt with such information as the Commission may require.
“To complement the provisions of the Constitution, Section 86 of the Electoral Act provides that: 86(1) Every political party shall submit to the Commission a detailed yearly statement of assets and liabilities and analysis of its sources of funds and other assets, together with a statement of its expenditure, including a hard and soft copy of its list of members or in such a form as the Commission may require,” he cited.
Another lawyer, Christian Oti, said the contribution of funds from individuals or corporate entities from outside the country to any candidate is not illegal, in so far as the funds are paid directly to the account or purse of the candidate.
Section 225(3)(a)(b) of the 1999 Constitution, is provided as follows: “No political party shall (a) hold or possess any funds or other assets outside Nigeria, or b) be entitled to retain any funds or assets remitted or sent to it from outside Nigeria.”
The reason for the provision, according to the lawyer, is the planned crowd-funding, which is unlawful, adding that a clear reading of the same section indicates that the prohibition is to political parties and not to individual candidates. He argued that a candidate can receive such funds from outside Nigeria, but must retain the same and not transmit it to their political party.
The lawyer, however, said the Electoral Act, 2022, provides a limitation to the amount of money a political party or candidate can receive from anybody outside of Nigeria. Section 88(8) of the Act, reads: “No individual or other entity shall donate to a candidate more than N50, 000, 000.” This, according to him, essentially limits the sum a person may donate to the candidate.
Also, Francis Ochi, shared similar views, harping that section 225 (3) of the 1999 Constitution provides that no political party shall hold or possess any funds or other assets outside Nigeria; or be entitled to retain any funds or assets remitted or sent to from outside Nigeria.
According to the lawyer, any funds or other assets remitted or sent to a political party from outside Nigeria shall be paid over or transferred to the commission within 21 days of its receipt with such information as the commission may require.
He explained also that section 85 (b) of the Electoral Act 2022 provides that; any political party that retains any fund or assets remitted to it from outside Nigeria shall on conviction forfeit the funds or assets to the INEC and in addition, may be liable to a fine of at least N5 million.
“By the gamut of the provisions of the law, funding of political parties by foreign donation offends the enabling law in Nigeria. In fact, it is not only illegal, but an offence as stipulated in the Electoral Act 2022,” he declared.
Arguing further, he said that in Nigerian laws, they cannot be a candidate for an election without a political party and votes are not just for a candidate but for a party also.