Interrogating Nigeria’s Law on Foreign Funding of Political Parties and Candidates: Peter Obi in Perspective

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ABSTRACT

Recently, Nigerians in Diaspora had promised and inaugurated a committee to support the Labour party presidential candidate Mr Peter Obi (as he wishes to be called).This generated a lot of tantrums among legal and political enthusiasts. In fact, it had led to a call for legal action in disqualifying Peter Obi from contesting the 2023 presidential election. This development spurred the question as to whether the Nigerian law is in all fours with these propositions. It is in response to this question that this work is inspired to look at the legal positions surrounding foreign funding of political activities in Nigeria. This work has established that Nigerian law only regulates foreign funding of political parties, but it does not prohibit such acts. In making this work worthwhile, the writer deployed the use of doctrinal sources where statutes, case laws and articles in the course of this work. It is the hope of this writer that this work will be an added asset to the treasury of knowledge.

INTRODUCTION

In the course of this writing, this writer structured this work into four parts. The first part examines the philosophy behind the prohibition of Foreign Funding in Nigeria political space. The second part examines the position of Nigeria’s jurisprudence regarding foreign funding. The third part of the work portrays whether or not, foreign funding of political parties has political sanctions under Nigerian laws. The fourth part of this work is a conclusion on how to bolster the current position of law regarding foreign funding of political parties.

I.0. The Rationale Behind the Prohibition of Foreign Funding of Political Parties

Several factors might have inspired the prohibitions of foreign funding of political parties in particular countries. These include fear of foreign influence in national politics, protection of nations’ sovereignty, intimidation of stronger nations by weaker nations and fear of illicit financial transaction.

Firstly, there is a fear of foreign influence and interference with political process of the receiving state. This is premised on the reasoning that politics is the process of determining the legitimacy of an incoming government of a country. Therefore, in supporting a political party of another country, the donor is directly infiltrating and influencing the political space of the recipient nation.1

Again, prohibition of foreign funds in national politics is seen as another way a country can assert its sovereignty. It seeks to protect its political independence from interference by alien powers. Thus, by this approach, a nation is seeking to jealously guard its political sovereignty,2 which accords with the doctrine of self-determination under international law.

Another reason is to prevent the financial intimidation by stronger nations over weaker ones. For example, after the Russian Revolution of 1917 Vladimir Lenin formed the Communist International (Komintern) as means of supporting Communist parties in other countries. Hitler also used Nazi Monies to export and promote Nazism in central Europe.3 This race for political funding by stronger nations became more prominent during the Cold war era when both the US and U.S.S.R were infiltrating the political space of weaker nations by sponsoring coups and political assassinations.4

Again, the fear of terrorists and non-state actors in funding political parties is another justification for this prohibition. Non-state actors like terrorist organizations, insurgents and rebels have the tendencies of financing political parties with the aim of promoting their agenda against an already established and legitimate state. Thus, prohibition of foreign financing of political parties is prohibited.

Further, foreign funding of political party is adjudged to be another way of illicit financial transactions. It could be seen as another means of promoting money laundering-where illicit and corrupt financial transactions could be achieved.

The above reasons are some of the reasons behind the prohibitions of foreign funding of political parties in a foreign country. In aligning these reasons with the crux of this discourse, the further question for interrogation is what is the position of the law regarding foreign funding of political parties in Nigeria? The response to this question will take us to the next part of this discourse.

2.0. The Position of Nigeria’s Jurisprudence on Funding of Political Parties

The position of Nigeria’s jurisprudence regarding funding of political parties could be appreciated by appraising Nigerian laws. Some of these laws include the Constitution of the Federal Republic of Nigeria, the Electoral Act, 2022, ECOWAS Protocol on Democracy, Election and Good Governance, 2001 and other foreign laws will be used as additional persuasive authorities to bolster the research content of this work.

The 1999 Constitution of Federal Republic of Nigeria, 1999 (2010 As Amended) and Foreign Funding:

The particular sections that purportedly deal with the prohibitions of foreign funding of political parties are section 225 (3) (4) and (6). The said sections provides thus:

(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 or 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 twenty-one days of its receipt with such information as the commission may require.

(5)……………………

6) The power conferred on the commission under subsection (4) of this section may be exercised through of its staff or any person who is an auditor by a profession, and who is not an auditor by a profession.

From subsection 3 of section 235 the law clearly outlaws any political party from possessing foreign funds and foreign property. It equally prohibits political parties from retaining any foreign fund remitted to it or assets sent to it. However, the law under subsection sections 4 and 6 of section 225 provides exception under which foreign funding can be legitimized. The first condition is that, the political party that received such foreign money or assets must transfer such money or paid it over to the Independent Electoral Commission (INEC) within twenty-one days of its receipts.5 Secondly, in transferring or paying these monies or assets received, the political party is not mandated to transfer or pay over the monies or assets to the INEC. It may decide to use an auditor in complying with directives of transferring or paying these monies or assets within 21 days.

Therefore, the above provision of section 225 of the Constitution did not outrightly prohibit foreign funding. Rather, it prescribed the procedure upon which foreign funding of political party can be actualized.

(b) The Electoral Act 2022 and the Foreign Funding Of Political Parties

The Electoral Act, being a specific legislation on this matter enjoys the primacy of authority after the 1999 constitution. This is because its subject-matter is exclusively election centered. The provision of law regulating foreign funding is captured in 85 (a) and (b) of Electoral Act which states that:

Any political party that-

Holds or possesses any fund outside Nigeria in contravention of section 225 (3) (a) of the Constitution commits an offence and shall on conviction forfeit the funds or assets purchased with such funds to the Commission and in addition may be liable to the fine of at least ₦5,000,000; or

retains funds or other assets remitted to it from outside Nigeria in contravention of section 225 (3) (a) of the Constitution commits an offence and shall on conviction forfeit the funds or assets to the Commission and in addition may be liable to the fine of at least ₦5,000,000;

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An objective assessment of the above provisions shows that the Electoral Act merely consolidates on the constitutional provisions on foreign funding of political parties. This becomes imminent for two reasons. Firstly, the law whose contraventions will attract sanction under the Electoral Act is the provisions of section 225 (3) (a) of the 1999 Constitution. The earlier rendition on this work regarding section 225(3) (a) which prohibit foreign funding of political parties is circumscribed by sub-sections 4 and 6 of section 225. The said sub-sections 4 and 6 of section 225 provides the means and methods by which foreign funds donated to political parties will be rightly utilized.

Again, the penalties for breaching section 85 (a) and (b) of the Electoral Act are: (a) forfeiture of the said assets and monies transferred, and (b) monetary fine of ₦5,000,000. As such there is nowhere disqualification for a party candidate is stated as a penalty. Thus, a community reading of the provisions of section 85 (a) and (b) of the Electoral Act, 2022 show that disqualification of party candidate is not the penalty for receiving foreign funding.

Going by the expositions of the Constitutional and electoral laws one thing is that is certain is that Nigeria has complied with the dictates of ECOWAS Protocol on Democracy, Election and Good Governance, 2001 which states that “Each member state may adopt a system of financing a political parties in accordance with criteria set under the law.”6 It is submitted that Nigeria as a sovereign nation has exploited it laws to regulate foreign funding and financing of political parties.

Contemporary Legal Issues Concerning Foreign Funding of Political Parties.

This aspect of the work seeks to explore some fundamental questions that depict the flaws associated with foreign funding of political parties. Are Nigerians in Diaspora foreign Nationals? If the monies of Nigerians abroad are golden eggs, why is their money in political funding odious? Based on these questions the author is inspired to couch the following issues: Is there any justification for disqualifying Peter Obi’s candidature because he was sponsored by Nigerians in Diaspora? Do the monies/funds sent by Nigerians (including party members paying their dues) to their political parties at home qualify as foreign funds? Are Nigerians in Diaspora foreigners to Nigeria whose monies can be qualified as foreign funds? Does the Nigeria law permit political parties to send Nigerian monies to foreign political parties? Responding to these questions ushers the reader to another interesting part of this discourse examined under the questions below.

Is there any justification for disqualifying Peter Obi’s candidature because he was sponsored by Nigerians in Diaspora?

The answer to this question is in the negative. Peter obi cannot be disqualified for contesting presidency because of the so-called “foreign funding.” This argument is premised on three grounds. Firstly, the conditions under which a presidential candidate can be disqualified are spelt out in section 137, and none of these conditions include foreign funding as ground for disqualifying a party presidential candidate.7

Secondly, assuming but not conceding that Labour Party has foreign funding, it is not the position of the law that Peter Obi can be disqualified. This is because, firstly, the constitution does not prohibit foreign funding and secondly, the penalty for foreign funding upon conviction is forfeiture of the assets or the monies sent, and not disqualification of Peter Obi.8

Thirdly, even if there is punishment for accepting foreign funds, it is Labour Party that will be punished as an entity, and not Peter Obi as a candidate.

The above argument is deeply rooted in the principle of law that where a statute specified a particular way of doing a thing, such procedure must be complied with, and any other means resorted to in doing such act is unlawful.9

Are Nigerians in Diaspora foreigners whose monies can be qualified as foreign funds?

The answer to this question is in the negative. This is because Nigerians abroad still enjoy their constitutional rights of political participation despite their Diaspora status. Thus, staying abroad does not deprive them of their nationality. This argument appeals to the legal reasoning that this right equally extends to Nigerians with dual citizenship. As such supporting and funding political parties of their choice in accordance with the procedures outline by the constitution is not an illegal act. A further question that is mind blowing is that if the law legalizes Diaspora remittances, why is it prohibiting foreign funding of political parties?

Further, in addressing what constitutes foreign funds or donation, this writer will resort to the United Kingdom’s10 doctrine of ‘permissible sources of foreign donations.’11 According to this doctrine, there are two categories of people whose foreign donations could be termed as permissible. These are:

Those who are registered voters in UK (in this context Nigeria), and

Those who are eligible to be put on electoral register in the United Kingdom (In this context Nigeria).

Those in these categories can be equated as registered members of political parties in Nigeria residing outside. As such if registered members of Labour Party (LP), APC (All Progressive Congress) or Peoples’ Democratic Party (PDP) reside outside Nigeria and want to support their candidates financially, they can do so without any legal sanction. Equally, members of political parties who are outside Nigeria have duty to pay their dues and send support to parties at home and by doing so, such funds could not be termed as foreign funds.

The second category clearly deals with instances where Nigerians (abroad), who are of voting age, are qualified to vote are sending monies to their parties or preferred candidates. As such, their source of foreign funding is genuine and permissible. Based on this proposition it is germane to conclude that Nigerians abroad have the legal rights to political participation by financially supporting the candidates of their choice and political parties.

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Further, the only situation that foreign funding can be prohibited is when the donors are non-Nigerians. This is because the words ‘foreign donors’, which was emulated from US, originally prohibits non-Americans outside/inside America from supporting Elections in America.12 So in the same contextualization, Nigerian law may import that such law is only applicable to non-Nigeria foreign donors, because been in Diaspora does not deprived them of their right to nationality and indigenousity. This argument appears logical when one noticed that during the debate by the Constitutional Drafting Committee on the countdown to enactment of the 1999 constitution.13 One of the debates was on whether the Nigerian constitution should abolish dual citizenship. The argument in favour of the reasons is that because of the financial benefits associated with Diaspora remittances.14

Thus, if Nigeria as a nation is interested in foreign funding by Nigerians for economic reasons, why should its laws prevent the same Nigerian donors from contributing towards politics, which is an act of Nation building?

Do Nigerian Laws Only Prohibit Political Parties from Receiving Foreign Funds but allow them to Finance Foreign Politics?

A cursory look into the Nigerian laws governing foreign funding in elections reveals that, the law is more concerned with prohibiting political parties in Nigeria from receiving foreign donations. However, the laws are silent in prohibiting the government of Nigeria or its ruling party from funding a political party in another country. Put in another way, is there any law prohibiting APC from rendering financial support to Political party in Niger Republic? As far as the present legal regime is concerned, there is no law banning such act. Some years ago, Nigerian government under APC was alleged to have sponsored Hillary Clinton with millions of dollars; what is the legal implication of such act? This question, and whatever response it will elicit, should be able to inspire changes relating to the future amendment of the Electoral Act, 2022.

4.0. CONCLUSION

In conclusion, Nigerian law does not prohibit foreign funding of political parties or candidates. Rather, it regulates how foreign funds in support of political parties or candidates can be remitted. It also prescribes the procedure for legitimizing the grants of such foreign funds. Thus, it is the position of this writer that the recent public outcry about the prospective foreign funds in support of Labour Party presidential candidate, Mr Peter Obi (as he prefers to be addressed), is unnecessary.

Footnotes

  1. Jeffrey K. Powell, “Prohibitions On Campaign Contributions From Foreign Sources: Questioning Their Justification In a Global Independent Economy” (Penn Law: Legal Scholarship Repository, 2014) P.983
  2. Ibid
  3. EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (Venice Commission), “Opinion on The Prohibition Of Financial Contributions To Political Parties From Foreign Sources” Adopted by the Venice Commission at its 66th Plenary Session (Venice 16-17 March, 2006). Comments by Mr Kestus Lapinskas and Mr Hans-Heinrich Vogel,@P.4
  4. Ibid@P.5
  5. Section 225 (4) of the 1999 CFRN
  6. Article 1 Paragraph (1)
  7. These grounds in section 137 of the Constitution include citizenship of another country, elected two times, adjudged to be lunatic, under death sentence, convicted within 10 years before election, undischarged bankrupt, membership of secret society, etc….
  8. Recently, Pakistani Prime Minister Imran Khan’s Party Pakistani Teerikh-1 (PTI) was disqualified for receiving foreign Funds. Electoral Commission of Pakistan asked him to show caused why the said monies will not be confiscated.
  9. Abubakar V INEC (2020) 12 NWLR PT.1737@Pp.124-125 Para. H
  10. The Choice of UK is pertinent because of its jurisprudential affinity with Nigeria legal system, from the common law perspective.
  11. The 5th Report of the Committee of “Standards In Public Life: The Funding of Political Parties in UK”, VOL. 1 (1998) P. 71
  12. .Ibid@P.72
  13. Paul Oluyede A. and Aihe D. O., “Cases and Material on Constitutional Law in Nigeria”, ( University Press PLC, Ibadan, 2003) P.574
  14. .Ibid@P.575

Copyright © Godfree Matthew, 2022.


SOURCE: LOYAL NIGERIAN LAWYER

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