DEREGISTRATION OF POLITICAL PARTIES: HAS THE COURT GONE BEYOND THE SUPREME COURT'S POSITION?

Nigeria appears to be a country of one day, two troubles. Before citizens recover from one national challenge, another quickly takes its place, creating a cycle of uncertainty that continually tests the resilience of the people and the institutions of government.

The recent judgment directing the Independent National Electoral Commission (INEC) to deregister the African Democratic Congress (ADC), Action Alliance (AA), All Progressives Party (APP), Accord Party, and Zenith Labour Party (ZLP) has once again brought the interpretation and application of Section 225A of the Constitution of the Federal Republic of Nigeria 1999 (as amended) into sharp focus.

This issue is not entirely novel. The Supreme Court had previously considered the scope of INEC's powers to deregister political parties in National Unity Party (NUP) & Anor v. Independent National Electoral Commission (INEC) and related appeals arising from INEC's 2020 deregistration exercise. In those decisions, the apex Court upheld the constitutionality of Section 225A and affirmed INEC's authority to deregister political parties that failed to satisfy the constitutionally prescribed performance thresholds.

However, the critical question before the Supreme Court in those cases was principally whether INEC possessed the constitutional competence to deregister political parties. The Court answered that question in the affirmative. What was not definitively pronounced upon was whether, upon the satisfaction of the constitutional conditions, INEC's power becomes strictly mandatory in a manner that can be compelled by third parties through judicial process, or whether some evaluative administrative discretion still subsists in determining compliance.

This distinction is crucial to a proper understanding of Section 225A. The provision states that INEC "shall" deregister a political party that fails to meet the prescribed constitutional thresholds relating to representation and electoral performance. Ordinarily, the word "shall" connotes a mandatory obligation.

Yet, even where mandatory language is employed, the antecedent question remains whether the factual and evaluative preconditions for its operation have been conclusively established, and if so, by whom and through what procedural mechanism. In that regard, while Section 225A appears imperative in form, its application is not entirely mechanical. It presupposes a prior institutional determination by INEC as to whether the constitutional thresholds have been met.

The constitutional design therefore places INEC not merely as a passive executor of constitutional directives, but as the primary evaluator of compliance. Consequently, there is a legitimate concern whether a court can, at the instance of private litigants, compel INEC to exercise what is constitutionally framed as an institutional responsibility, particularly where the Commission has not itself made a definitive administrative determination of non-compliance in respect of the affected parties. There are, indeed, conflicting reports suggesting that some of the parties affected by the judgment may not even be in breach of the constitutional requirements being relied upon.

Judicial review traditionally serves to police illegality, irrationality, procedural impropriety, or abuse of power. It does not ordinarily permit courts to substitute their own judgment for that of a constitutionally designated administrative body entrusted with the responsibility of making the primary determination.

An equally significant issue arising from the judgment is that of locus standi. Available reports indicate that the action was instituted by the Incorporated Trustees of the National Forum of Former Legislators. The threshold question is whether the claimants demonstrated a sufficient legal interest or suffered any injury capable of activating the jurisdiction of the court.

The law remains settled that locus standi is a jurisdictional requirement. Although Nigerian courts have adopted a more liberal approach in fundamental rights enforcement proceedings and, in certain circumstances, public interest litigation, the general principle remains as affirmed in Adesanya v. President of the Federal Republic of Nigeria, Thomas v. Olufosoye, A.G. Kaduna State v. Hassan, and reaffirmed in more recent decisions involving Dr. Ngozi Okonjo-Iweala and Chief Gani Fawehinmi.

A claimant must ordinarily demonstrate that his civil rights and obligations have been, or are in imminent danger of being, adversely affected.

The critical inquiry therefore becomes: what legally cognisable injury did former legislators suffer by INEC's alleged failure to deregister political parties that purportedly failed to satisfy constitutional thresholds? Mere civic concern, institutional interest, political dissatisfaction, or a desire to ensure constitutional compliance does not, without more, automatically translate into standing under the traditional doctrine of locus standi.

This issue assumes greater significance because the action was not instituted under the Fundamental Rights (Enforcement Procedure) Rules, nor was it anchored upon any constitutional or statutory provision expressly enlarging the scope of standing. Consequently, outside recognised constitutional exceptions, the restrictive approach to locus standi remains the prevailing position in Nigerian jurisprudence. This jurisdictional issue ought to have received rigorous judicial consideration before the substantive questions were addressed.

A further point of concern relates to the delicate relationship between judicial power and institutional autonomy. INEC is a constitutionally established independent body vested with specific electoral responsibilities. While its actions and omissions are undoubtedly subject to judicial scrutiny, courts have traditionally exercised caution in directing the manner in which constitutionally assigned discretion is exercised, except where there is clear evidence of illegality, refusal to act, bad faith, or abuse of power.

The present judgment appears to proceed on the assumption that once the constitutional conditions under Section 225A are alleged to have been met, INEC is under an immediate and judicially enforceable obligation to deregister the affected parties at the instance of third-party litigants. Such an approach arguably risks collapsing the distinction between constitutional power, administrative determination, and judicial compulsion.

Indeed, there remains an ongoing debate as to whether some of the parties ordered to be deregistered are actually in breach of the constitutional requirements. If that controversy exists, then it reinforces the argument that the primary evaluation ought first to come from INEC itself, the constitutional body entrusted with that responsibility.

My understanding of the Supreme Court's jurisprudence in NUP v. INEC and the allied appeals is that while the Court validated INEC's constitutional competence to deregister political parties, it did not necessarily convert that competence into an automatically enforceable duty at the instance of any interested person regardless of standing or prior administrative determination. Nor did it definitively resolve whether courts may issue mandatory orders directing INEC to exercise that power in a particular direction absent a clear case of refusal to perform a legally triggered duty.

In my respectful view, the appellate courts, including the Supreme Court if the matter ultimately gets there, may be required to clarify three interrelated issues:

First, whether Section 225A imposes a self-executing mandatory duty or one that is activated upon institutional evaluation and determination by INEC;

Second, whether the claimants possessed the requisite locus standi to institute the action;

Third, whether the remedy granted constitutes an impermissible judicial substitution of administrative discretion under the guise of constitutional enforcement.

In conclusion, while the constitutional framework for political party deregistration has been affirmed by the Supreme Court, the questions of standing, justiciability at the instance of third parties, and the limits of judicial compulsion over INEC's constitutional functions remain far from settled. These issues may ultimately prove decisive in determining whether the present judgment represents a faithful application of Section 225A or an impermissible expansion of both constitutional meaning and judicial authority.

I therefore invite further intellectual intervention on this very important issue. The political space is becoming increasingly restrictive through judicial interventions of this nature, and the appellate courts may once again be called upon to define the proper constitutional boundaries between electoral regulation, administrative discretion, and judicial oversight.

Dr. M. O. Ubani, SAN Legal Practitioner and Policy Analyst.