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Legal framework for the right to political participation

What is the legal framework for the right to political participation?

The right to political participation is not expressly mentioned as one of the fundamental rights guaranteed in the 1999 Constitution of Federal Republic of Nigeria as Amended (subsequently referred to as “The 1999 Constitution”). However, this right is fundamental as it gives citizens the right to participate in political activities. It gives citizens the chance to contribute to the affairs of the state and also influence the decision-making of the state positively. Therefore, if there is a breach of this right, the victim can take appropriate legal actions to prevent its continued violations and damages can also be claimed (where available). Although, there are limitations to the right to political participation, but such limitations are not on the basis of sex, language, religion, colour, origin, or status of birth.

This part will highlight the general legal framework of the right to political participation.

It should be noted that by legal framework; we mean the basic legal structures which include; Statutes or Acts of the National Assembly or any other laws made by other appropriate authority. They shall be discussed under the following subheadings:

  • International instruments,
  • Regional instruments and
  • National legislations.

 

1

International and regional instruments

International Instruments

This right is protected in various International Instruments.  In Article 21 of the Universal Declaration of Human Rights and Article 25 of the International Covenant on Civil and Political Rights  guarantee and recognize the participation of people in the government of their countries, directly or through freely chosen representatives.

Regional Instruments

Right to political participation is also recognized in Regional Instruments. For instance, Article 13 of the African Charter of Human and People’s Rights specifies that every individual has right to be part in the affairs of government without any interference.

2

National legislation

The constitution

Though the right to political participation is not listed as one of the ‘fundamental rights’ mentioned in the 1999 Constitution, it is linked to those enlisted in the Constitution as fundamental rights and captured in various portions of the constitution.

 1. SECTION 7 SUB-SECTION 4 OF THE 1999 CONSTITUTION provides that:

The Government of a State shall ensure that every person who is entitled to vote or be voted for at an election to House of Assembly shall have the right to vote or be voted for at an election to a local government council.

This constitutional provision ensures the participation of every citizen in political activities which includes right to vote and right to contest for public office at the Chairmanship and Councillorship elections at every Local Government in Nigeria.

2. SECTION 14 SUB-SECTION 2 and PARAGRAPH (C) OF THE 1999 CONSTITUTION further provides:

The participation by the people in their government shall be ensured in accordance with the provisions of this Constitution.

The use of the word “shall” in this section implies an obligation which must be fulfilled by the government. A country like Nigeria being a democratic state must recognize her citizen’s right to participate freely in choosing people that will represent her in power.

3. SECTION 40 OF THE 1999 CONSTITUTION specifies that:

Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests.

This constitutional provision emphasizes the existence of the citizen right to belong to a political party in order to participate in political affairs of the country, Nigeria.

4. SECTION 77 SUB-SECTION 2 OF THE 1999 CONSTITUTION states that:

Every citizen of Nigeria, who has attained the age of eighteen years residing in Nigeria at the time of the registration of voters for purposes of election to a legislative house, shall be entitled to be registered as a voter for that election.

This constitutional provision ensures the participation of citizens of Nigeria in the election of members of Senate and the House of Representatives.

5. Section 117 SUB-SECTION 2 OF THE 1999 CONSTITUTION states that:

Every citizen of Nigeria, who has attained the age of eighteen years residing in Nigeria at the time of the registration of voters for purposes of election to any legislative house, shall be entitled to be registered as a voter for that election.

This constitutional provision ensures the participation of citizens of Nigeria in the election of any House of Assembly of each state in Nigeria.

6. SECTION 132 SUB-SECTION 5 OF THE 1999 CONSTITUTION provides thus:

Every person who is registered to vote at an election of a member of a legislative house shall be entitled to vote at an election to the office of President.   

This constitutional provision makes it clear that any citizen of Nigeria who is qualified to exercise his right to vote during the election of any legislative house; National Assembly and any House of assembly of state would be allowed to participate as a way of exercising his right to vote in the election to the office of the president.

7. SECTION 178 SUB-SECTION 5 OF THE 1999 CONSTITUTION provides that:

Every person who is registered to vote at an election of a member of a legislative house shall be entitled to vote at an election to the office of Governor of a State.

Also, this constitutional provision allows every citizen of Nigeria who have been registered by Independent National Electoral Commission as voters to participate in elections into any legislative house in the country should be given chance to exercise his right to vote in the Governorship election of any state in Nigeria.

To further ensure that there is an independent body that regulates how election is being conducted in the country, THIRD SCHEDULES PART 1 PARAGRAPH F UNDER ITEM 15 (E) OF THE 1999 CONSTITUTION provides that:

The Commission shall have power to:

arrange and conduct the registration of persons qualified to vote and prepare, maintain, and revise the register of voters for the purpose of any election under this Constitution.

This constitutional provision has to do with role of the Independent National Electoral Commission in ensuring qualified citizens of Nigeria who can vote or stand as candidates at an election exercise their political rights without any limitation.

 

The Electoral Act 2010

SECTION 12 OF ELECTORAL ACT 2010 states as follows:

 (1) A person shall be qualified to be registered as a voter if such a person-

(a) is a citizen of Nigeria;

(b) has attained the age of 18 years;

(c) is ordinarily resident, works in, originates from the Local Government Area Councillor Ward covered by the registration centre;

(d) presents himself to the registration officers of the Commission for registration as a voter; and (e) is not subject to any legal incapacity to vote under any law, rule, or regulation in force in Nigeria.

(2) A person shall not register in more than one registration centre or register more than once in the same registration centre.

The section reproduced above stipulates the requirements a citizen of Nigeria must fulfil before he can exercise the right to vote at an election.

 

The African Charter on Human and People’s Rights (Ratification and Enforcement) Act

In its Article 13 states as follows:

  1. 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 provisions of the law.
  2. Every citizen shall have the right of equal access to the public service of his country.
  3. Every individual shall have the right of access to public property and services in strict equality of all persons before the law.

Luckily, this Act has become part of Nigerian laws. Thus, this particular article amongst others guarantees a citizen’s right to take part in the affairs of the government in Nigeria without any limitations.

 

 Discrimination Against Persons With Disabilities (Prohibition) Act 2019

This Act states as follows under SECTION 4:

(1) Persons with disabilities shall be encouraged to fully participate in politics and public if:

(2) Government shall actively promote an environment in which persons with disabilities can effectively and fully participate in:

  • the conduct of public affairs without discrimination;
  • non-governmental organizations and association concerned with public and political life of the country; and
  • activities and administration of political parties.

This Act further buttresses the democratic stance of Nigeria as it recognizes, without discrimination, the inclusion of persons with disabilities in the participation of its government. Their political rights include the right to vote and right to contest for public office without any form of discrimination whatsoever.

3

Are there limitations to this right?

Political rights are not absolute rights in nature. In other words, these rights do have some limitations, which include:

  1. Limiting these rights in the interest of security, public safety, public order, public morality, or public health.
  2. Where it appears to protect the rights of others from being breached in order not to result to an abuse of rights.
  3. The Independent National Electoral Commission (INEC) has the lawful power to deregister any political party where it is established that the party has not satisfied the requirements totally laid down by law.

For examples:

  1.  If the political party was found to have breached any of the requirements for registration and
  2. If after the conclusion of elections, the political party failed to win at least 25% of votes cast in various elections such as: one State of the Federation in a presidential election; one Local Government of the State in a Governorship election; one ward in the Chairmanship; one seat in the Nation in the National or State House of Assembly election; or one seat in the Councillorship election.

Other Special limitations are as follows:

In relation to a voter participating in elections:

  • A non-citizen of Nigeria is not allowed to participate as a voter in Nigeria.
  • A citizen of Nigeria under the age of 18 years as required by law would not be allowed to participate in an election.
  • A citizen of Nigeria who is not registered as a voter would not be allowed to exercise his right to vote during an election.

In relation to a candidate contesting for public office in an election:

  • A citizen of Nigeria who is not a member of any political party registered in Nigeria by Independent National Electoral Commission (INEC) would not be allowed to stand as a candidate in an election.
  • A citizen of Nigeria who is a member of any political party registered in Nigeria but does not participate in the primary’s elections organized by the party he belongs to would be disqualified.

For example, in All Progressive Congress (APC) & ORS. V Senator Kabiru Garba Marafa & ORS Case Suit No. 377/2019, the court held that in a situation where a registered political party fails to conduct primaries elections as required by law, then the political party cannot participate in the general elections.

  • A citizen of Nigeria who does not meet the age requirements as recognized by law would be disqualified.
  • If there is evidence that the person belongs to any secret society and such is established accordingly. Such person would be disqualified based on the basis.
  • A citizen of Nigeria who has been sentenced to jail or prison (Now Correctional centres) for any offence by any competent court in Nigeria within 10 years before the conduct of the elections.

A citizen of Nigeria who is said tonot have mental capacity and such is confirmed with a medical report would not be allowed to stand as a candidate in an election.

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