The Position of the Law on Election Funding Viz-A-Viz Crowd Funding
Introduction:
Nigerians in the diaspora under the name Diaspora Support Group just recently pledged to crowdfund $150m for a particular Candidate of a Political Party’s campaign. Since the news, a lot of issues have been raised about the somewhat good intentions of these Nigerians in Diaspora as concerns have been raised in some quarters over the legality and or constitutionality of such donations. Particularly, a group in support of a Presidential Candidate has called on the Independent National Electoral Commission (INEC) to, without delay, disqualify[1] the presidential candidate of the particular political party, and his running mate, from the 2023 presidential election. The group has also threatened to commence legal action, for engaging in activities that contravene the Electoral Act 2022. This article is, therefore, intended to serve as a guide to all Political Parties and Candidates in the 2023 general election with respect to the funding of their campaign and political party, in order not to run afoul of the law.
What does the law say?
It is our humble submission that donations to a Candidate or his campaign team by their supporters whether in Nigeria or in the diaspora are legal, however, the donation by the diaspora to the political party is illegal and unconstitutional.
The law is very clear with respect to election funding, no matter the interpretation given to it by different political divides and for clarity, the applicable laws are set out as follows:
Section 225(3)(a)(b) of the 1999 Constitution of the Federal Republic of Nigeria (fourth alteration) provides inter alia that “No political party shall 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”.
Section 85 of the Electoral Act, 2022 provides that: “Any political party that— (a) holds or possesses any fund outside Nigeria in contravention of section 225 (3) (a) of the Constitution, commits an offense and shall on conviction forfeit the funds or assets purchased with such funds to the Commission and in addition may be liable to a fine of at least N5,000,000; or
(b) retains any fund or other asset 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 a fine of at least N5,000,000.”
Section 152 of the Electoral Act, 2022 defines a Candidate as a person who has secured the nomination of a political party to contest an election for any elective office.
Section 152 of the Electoral Act, 2022 also defines a Political party to include any association of person whose activities include canvassing for votes in support of a candidate for election under this Act and registered by the Commission.
From the above provisions of the law, it is very clear and unambiguous that it is only the political party that is estopped from holding or possessing any fund outside the country and this does not in any guise apply to the candidate of the political party. The intention of the framers of the constitution is glaring in this respect; if they had intended that the candidate should be prohibited from holding or possessing funds outside the country the constitutional provision in this respect would not have omitted the candidate and Section 85 of Electoral Act 2022 further compliments the constitutional provision by prescribing punishment for its breach without more.
It is important to note at this juncture the position of our law where the words used in a statute are clear, straightforward, and unambiguous, they should be accorded their grammatical, plain, ordinary, and natural meaning. The cardinal principle of interpretation of a statute is that where the words used in a statute are clear and unambiguous the Courts should give them their ordinary natural and literal meaning in order to establish the intention of the lawmaker. It is only where the ordinary or literal meaning of the clear and unambiguous words fails to bring out the intention of the lawmaker or leads to an absurdity that resort is had to constructive interpretation. See ADISA V. OYINWOLA (2000) 10 NWLR (pt. 674) 116 at 174,…” Per OKORO,J.S.C in Registered Trustees of the Airline Operators of Nigeria v. Nama (2014) LPELR-22372(SC) (Pp. 36 paras. B) where the Apex Court gave an ordinary and natural interpretation to Order 3 Rule 15 of the Court of Appeal Rules by upholding the striking out of the Appellant’s /Respondent Preliminary Objection on the ground that it was not in compliance with the 3 clear days notice a Respondent had to give the Appellant before the hearing of the appeal.
Flowing from the above, it is compelling to rely simply on the plain, clear, and grammatical meaning of the above provisions of law to hold the firm position, having carefully considered the sections of law reproduced above, that the Constitution and the Electoral Act clearly and specifically prohibits a political party from holding or possessing any funds or other assets outside Nigeria and from retaining any funds or assets remitted or sent to it from outside Nigeria. It is incontrovertible that the candidate is not a political party which sections 225(3)(a) and (b) of the 1999 Constitution of the Federal Republic of Nigeria and Section 85 of Electoral Act 2022 refer but a candidate to which the laws do not contemplate in this regard. It is therefore assertive to state that donations made to a candidate or his Campaign Organization in support of his or her Campaign cannot be said to be made to a Political Party as contemplated by law.
Furthermore, it is directive to guard against mistaking or confusing a Candidate to a political party registered under Nigerian law. Donating to Candidates or their Campaign Teams are not prohibited by law and are therefore not illegal and unconstitutional irrespective of whether the donation was made in Nigeria or in the diaspora. This is because the express mention of one thing is the exclusion of the others, what is not included in a statute is not to be read into it. In A.G. Ondo State V. A.G. Ekiti State (2001) LPELR-622 (SC), the Supreme Court dealt with the issue of exclusion of things not expressly stated in enactment and had expatiated inter alia thus:
“… This is in accord with the accepted principle of interpretation expressed in the Latin maxim expressio unius est exclusio alterius or expressum facit cessare taciturn. The two related principles mean firstly that “to state, a thing expressly ends the possibility that something inconsistent with it is implied.” Secondly, “to express one thing is impliedly to exclude another” which is an aspect of the latter. This principle of construction is applied where a statutory proposition might have covered a number of matters but in fact mentions only some of them. Unless those mentioned are mentioned only as examples, or ex abundanti cautela, or for some other sufficient reason, the rest are taken to be excluded from the proposition.” Per GEORGEWILL ,J.C.A in AMCON v. Canvass Farms (Nig) ltd & ors (Pp. 25-26 paras. D) (2021) LPELR-54651(CA
It is instructive to emphasis that, while Section 88 (2) of the Electoral Act, 2022 provides that the maximum election expenses to be incurred by a candidate at a presidential election shall not exceed N5,000,000,000.00; there is no such limitation placed on the amount of donation a Presidential Candidate or his Campaign Group can receive or how much election expenses a Presidential Campaign or Support Groups can incur. However Section 88(8) of Electoral Act 2022 placed limitation that no individual or other entity shall donate to a candidate more than N50,000,000.00.
Conclusion:
In Conclusion, to safeguard the integrity of the electoral process, candidate funding and funding of political parties laws are enacted to guide and guard against money laundering, drug money and terrorism sponsorship, etc all in the guise of election funding. While the private funding of political candidates and political parties by individuals looks harmless enough, it is most times an innocuous channel of funneling the proceeds from illicit drugs and slush funds into the system. Many a times as well, it provides opportunities for individuals and corporations to hold governments by their jugular having sponsored them to power. Taking a clue from the US, where there is a demarcation between what is called ‘hard’ and ‘soft’ money in campaign financing, while contributions that are made directly to a particular candidate are called hard money, the ones that are contributed to political parties are known as soft money with each of them having clearly separate laws that govern them in electoral campaigns process. The combination of a political culture that has taken the acceptance of gifts as normal and a porous banking system that is easily the funnel of unclean funds are dark spots in our electoral process.
[1] https://leadership.ng/2023-disqualify-peter-obi-over-diaspora-funding-pro-tinubu-group-tells-inec/ accessed on 5th September 2022.
[maxbutton id=”1″ url=”https://oal.law/data/uploads/2022/09/The-Position-of-the-Law-on-Election-Funding-Viz-A-Viz-Crowd-Funding.pdf” text=”Download Article” ]
Contributor
