analysisBy Akpo Mudiaga-Odje
The issue of zoning political offices within the respective political parties has generated so many furore in the polity,
that a constitutional x-ray into it has become imperative if not abundantly necessary. This discourse attempts to examine this topical issue vis vis relevant constitutional provisions to demonstrate that the zoning policy may actually have no legal or constitutional support thus making it legally otiose.
Qualification to Contest for the Office of Presidency under the Constitution
The qualification and conditions that must be met by any Nigerian aspiring to the office of President are as set out listed in Section 131 of the 1999 Constitution. That Section for ease of reference and so far as material for our purpose provides that: 131 - "A person shall be qualified for election to the office of President if - (a) he is a citizen of Nigeria by birth; (b) he has attained the age of forty years; (c) he is a member of a political party and is sponsored by that political party; and (d) he has been educated up to at least School Certificate level or its equivalent."
The above accentuate the constitutional requirements to be met by a presidential aspirant in Nigeria. Consequently any further conditions or restrictions placed by any political party guidelines including zoning policies are afortiori, unconstitutional, null and void to the extent of that inconsistency. Section 1 (3) of the 1999 Constitution.
Parties cannot by Consent Waive, Enlarge or Abridge Constitutional Provisions
Indeed in constitutional parlance, the law is axiomatic that parties cannot by consent waive or opt out of constitutional provisions. Accordingly, in the case of Attorney-General of Bendel State vs. Attorney-General of Federation (19813) NLR 1, the court speaking through the terribly learned Idigbe JSC of blessed memory held at page 128 lines 3-9 that: "The principle has always been that courts should indulge every reasonable presumption against waiver and should not presume acquiescence on the loss of fundamental rights".
Speaking in a similar vein, Kutigi JSC (as he then was) in Attorney-General of Abia vs. Attorney-General of Federation (2002) 6 NWLR (pt 763) 264 at 369 para F-G observed that: "The same fate will befall any provision of the Act which seeks to enlarge, curtail or alter existing provision of the constitution. The provision or provisions will be treated as unconstitutional and therefore will null and void."
Consequently upon the above authorities it is incontestable that any policy of zoning by the respective political parties in respect of elected offices as created by the constitution, is null, void and of no effect whatsoever
Zoning in the circumstances seeks to abridge, curtail and waive the inalienable right of any Nigeria who meets the conditions listed in for Section 131 of the 1999 Constitution, from contesting elections into that office.
Zoning of Elected Political Offices by Political Parties is Discrimatory and Contrary to Section 42 of the 1999 Constitution
Indeed any policy of zoning of political offices by a political party will naturally contravene the provisions of Section 42 of the 1999 Constitution which protects all Nigerians from discrimination of any kind in the application of any law, policy or directive of Government. That Section 42 provides that: 42 - (1) A citizen of Nigeria of a particular community, ethnic group, place or origin, sex, religion or political opinion shall not, by reason only that he is such a person -
(a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizen of
Nigeria of other communities, ethnic groups places of origin, sex religions or political opinions are not made subject; or
(b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizen Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.
This is the gravamen of our pontification. If the law is applied unequally then it discriminates against persons who are not from the favoured zone which is contrary to Section 42 above, and thus unconstitutional.
Section 42 (1) is a double edged constitutional sword. That is so because if you zone out candidate A, the political party will infringe on Section 42 (1) (a) and if you zone in candidate B, the party will infringe on Section 42 (1) (b).Since the Government is expected through Independent National Electoral Commission, INEC, to implement the party zone policy, its action is caught up by Section 42 as above stated.
Party Constitution and Policies are subject to the 1999 Constitution.
Whereas, the political parties are given rights to draw up their respective constitutions and formulate policies, when they however exceed their powers the Constitution will be invoked to legally check mate their excesses. Thus, in Ameachi vs. INEC (2008) 5 NWLR (pt 1080) 227 at page 311 paras C-D, the sagacious Oguntade JSC observed that: "It is my view that a political party is able to control the affairs of the party only to the extent that the exercise of such control does not run against the provisions of the constitution...".
The above authority declares that constitution of a political party is subject to the Constitution, whether impliedly or expressly. Instructively, the preamble of the Peoples Democratic Party (PDP) Constitution of 2006 as amended expressly incorporates the 1999 Constitution by providing that: "Subject to the provisions of the Constitution of the Federal Republic of Nigeria, this constitution shall be supreme and its provisions shall have binding force on all members and organs of the party".
Indeed, this provision enabled the supreme court, to critically examine and subsequently deliver a comprehensive judgment in the celebrated case of Ameachi vs. INEC (supra).
Interestingly, the preamble of constitutional difference if not subservience of the PDP had previously formed the basis of judicial interpretation in the locus classicus of Ugwu vs. Ararume (2007) 6 SCNJ 316. In that case, the sagacious Niki Tobi JSC noted as follows that: "Let me read Article 2 of the constitution of the People Democratic Party,... to make a point that has occurred to me: "Subject to the provision of the constitution of the Federal Republic of Nigeria, this constitution shall be supreme and its provisions shall have binding force on all members and organs of the party. By Article 2, the supremacy of the 3rd respondent (ie PDP) is subject to the supremacy of the constitution. This is in line with the provisions of Section 1 of the Constitution of the Federal Republic of Nigeria 1999."
Consequently, no political party has the quo warranto to apply any political strategy of zoning to choose its candidates ahead of the election as against clear constitutional provisions especially Section 131, relating to the office of President of the Federal Republic of Nigeria.
In Ameachi vs. INEC (supra) the quintessential Oguntade JSC at page 321 paras F-G adumbrated pungently that: "The political parties in Nigeria are the creation of the constitution. They therefore have an important stake in flying high and loftily the banner of the rule of law".
In this connection, Section 17 (2) (a) of the 1999 Constitution also guarantees equality of rights and opportunities to all citizens of Nigeria by providing that: "Every citizen shall have equality of rights, obligations and opportunities before the law..."
The principle or policy of zoning therefore obfuscates and obliterates a prospective candidates right to equal opportunities and right to contest for elections. Political Parties must abide by the Constitution in order to enthrone Internal Democracy and Representive Government in Nigeria. It is our collective desire and aspiration to see the enthronement of internal democracy by these political parties. And that will lead to proper representative government that we claim to be practicing in Nigeria.
Consequently, from the line of authorities cited above, one can safely conclude that they emanated from internal crisis and vicious disagreements within the parties. That is to say fratricidal intra-party disputes relating to emergence of candidates for the elections.
And this point was highlighted and crystallized with unsurpassed clarity by Oguntade JSC in Ugwu v Ararume (supra) at page 362 lines 5 - 10 to the effect that: "Any observer of the Nigerian political scene today easily discovers that the failure of the parties to ensure intra-party democracy and live by the provision of their constitutions as to the emergence of candidates for election is one of the major causes of the serious problems hindering the enthronement of a representative government in the country".
By these presents, we are hereby issuing a pre-emptive legal and constitutional challenge to those political parties which intend to subvert the supreme electoral will of the people by applying bizarre and/or voodoo political compromises like zoning and rotation, which clearly have no constitutional flavour or support, to forthwith rescind such illegal contortions as we vigorously continue to fight for the enthronement of a truly representative government in our fatherland.
Dr. Akpo Mudiaga Odje Writes from Warri, Delta State