“We do not sit here to pull the language of Parliament to pieces and make nuisance of it. That is an easy thing to do and it is a thing to which lawyers are too often prone. We sit here to find out the intention of Parliament and of ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis.”
Denning, L.J.
MAGOR AND ST. MELLONS RURAL DISTRICT COUNCIL v. NEWPORT CORPORATION (1950) 2 All ER 1226 at 1236
The constitutional legality of election campaign financing has recently been the subject of intense debate among Nigerians. In particular, the issue of donations from Nigerians in Diaspora has gained attention since the Labour Party (LP) chairman announced the inauguration of an 11-man committee to coordinate fund-raising efforts from the party’s supporters abroad in advance of the 2023 general election. This followed the declaration by Diaspora support groups of the party to raise $150 million from Nigerians in the diaspora, as well as the intention to raise N100 billion from supporters domestically for Mr. Peter Obi, the party’s presidential flagbearer. The LP and its presidential candidate have received rapid backlash from opposing camps in response to this disclosure of Diaspora fund-raising support, even going so far as to seek the Independent National Electoral Commission (INEC) to disqualify Mr. Obi.
Elections are the foundation of a democratic system for choosing political leaders, more so, credible elections which confers a legitimacy that goes beyond the law and includes the support of the voting public, without which can undermine a candidate’s legal victory. Based on this premise, democratic nations work to safeguard the integrity of their electoral processes and systems from internal and external influences so that the election results can be regarded as representing the majority will of the citizens and affirming their sovereignty.
One of such safeguards is seen in the intersections of money, politics, and electoral influence. Economic power can easily be converted into political influence. Not only because elections often cost enormous amounts of money, but also because of the susceptibility of the stakeholders, particularly the electorate who, as a result of poverty and inequality, readily trade their votes for money, and the aspirants who can vend future favors to donors in exchange for campaign financing.
This political power-brokerage cycle swiftly transfers riches, influence, and more power to this economically privileged group—which could include locals and foreigners—who then control the political economy of a nation, eroding the sovereignty of the electorate and possibly undermining national sovereignty. Because of this significant role in determining the integrity of elections and, by extension, national sovereignty, campaign finance is subject to the strictest scrutiny.
Nigeria’s 1999 Constitution (as amended) in sections 225 to 229, and the Electoral Act 2022, sections 85 through 90, in a bid to stave off influences and interference in her elections, regulate campaign financing by limiting domestic contributions, prohibiting contributions from abroad by both natural persons, legal and illegal entities, requiring disclosure of campaign donations, expenses, and imposing other restrictions.
To the extent of these provisions, it begs the question: Is the intended Diasporan election financing for Mr. Obi unlawful? Can a political party’s flag bearer be attributed with and assume the status of a political party? What was the intention of Parliament in enacting the law?
Even though analysts have argued for and against various interpretations on whether such coordinated fundraising breaches our laws, the provisions of the Constitution and the Electoral Act despite their loopholes cannot be said to be ambiguous.
The relevant provisions of Section 225 of the 1999 Constitution (as amended), with highlights for emphasis, are as follows;
“(1) Every political party shall, at such times and in such manner as the Independent National Electoral Commission may require, submit to the Independent National Electoral Commission and publish a statement of its assets and liabilities.
(2) Every political party shall submit to the Independent National Electoral Commission a detailed annual statement and analysis of its sources of funds and other assets together with a similar statement of its expenditure in such form as the Commission may require.
(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 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.”
The relevant provisions of Section 85 of the Electoral Act 2022,with highlights for emphasis, are as follows;
“Any political party that—
(a) 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 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.”
The commentators who believe that Mr. Peter Obi’s receipt of diaspora election funding donations does not or will not constitute a violation have hammered home the idea that the candidate is not, in and of himself, the political party that is mentioned (as highlighted) and, as such, will not be held accountable for any violation if such candidate or his campaign organization accepts donations from the Diaspora. This assertion is made relying on the Literal and the Expressio Unius EST Exclusio Alterius rules of interpretation.
The Literal Rule of Interpretation states that, where the words of a statute are plain, clear, and unambiguous, the court shall give effect to their literal meaning. This rule of interpretation of statutes has also been laid by the court from time immemorial and upheld by courts in Nigeria in several decisions. See Alderson B. in AG v. LOCKWOOD (1842) 9 M & W 378 AT 398andATANDA FATAYI-WILLIAMS, J.S.C.in AWOLOWO v. SHAGARI & ORS (1979) LPELR-653(SC).
The Expressio Unius EST Exclusio Alterius rule of interpretation, a Latin maxim, states that the express mentioning of one thing is by implication to the exclusion of those not mentioned. Political party, as mentioned in the law, simply envisages the exclusion of candidate; therefore, the two terms cannot be used interchangeably to represent the same thing. See R v Sedgley Inhabitants (1831) and Udoh v Orthopedic Hospital Management Board (1993) 7 NWLR (pt.) 304.
Considering the aforementioned rules, the analysts contend that the express mentioning of “political party”, without more, is given its literal meaning as defined in section 152 of the Electoral Act which exempts the candidate and his campaign organization from the same restrictions on Diaspora campaign funding that apply to political parties. Though sound, this reasoning falls short.
One of the duties of the Court under the doctrine of the separation of powers is to interpret legislation using rules of interpretation that are not only effective but also not limited to those described above to carry out the duty of interpretation. This task of interpretation does not necessarily proceed in a straight line, as Lord Denning noted persuasively in Seaford Court Estates Ltd. v. Asher[1949] 2 KB 481, that “English language is not an instrument of mathematical precision… It is not within human powers to foresee the manifold sets of facts which may arise; and that; even if it were, it is not possible to provide for them in terms free from all ambiguity…. A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, ….It would certainly save the judges from the trouble if the acts of parliament were drafted with divine precision and perfect clarity. In the absence of it, when a defect appears, a judge cannot simply fold hand and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this, not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give ‘force and life’ to the intention of the legislature……A judge must not alter the material of which it [an act] is woven, but he can and should iron out the creases.”
The best draftsmen cannot create permutations that envisage all angles of human interaction in the actual implementation of a law, which is why interpreting statutes is a continuous process as newer facts and circumstances emerge. One way a judge interprets a statute is to look for the legislature’s intention and give the law some life by applying the Mischief Rule.
The Mischief Rule is a tool for statutory interpretation, it is typically more flexible than other cannons of interpretation, such as the Literal rule, in that it requires judges to give strict consideration to four tasks as established by Lord Edward Coke in the landmark decision of Heydon’s Case (1584) 76 ER 637, to fill in any legal gaps. They are;
What was the common law before the making of the Act? What was the mischief and defect for which the common law did not provide?
- What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth. And,
- The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act.
The Street Offences Act (1959) prohibited sexual solicitation in public places, in Smith v. Hughes (1960), the defendants, who were prostitutes, stayed by their windows, overlooking the streets, and solicited, which is technically not in a public place as expressly stated by the law. Using the Mischief Rule, the prostitutes were found guilty of engaging in the activity that the law sought to outlaw. Also see R v R [1991] UKHL 12.
More specifically, as an exception to the Expressio Unius EST Exclusio Alterius rule of interpretation, the Ejusdem Generis rule, a Latin maxim that means “of the same kind,” which restricts words to things similar to the class of things is used in constitutional, statutory, and contract interpretations. The English Court of Appeal in Coleshill and District Investment & Co. Ltd v Minister of Housing and Local Government & Anor held that in determining the meaning to be given to the phrase “building, engineering, mining or other operations as used in section 12(1) of the Town and Country Planning Act of 1947,words “other operations” must be construed ejusdem generis with building, engineering, and mining.
Concerning the issue of Diaspora election funding and the argument advanced by analysts, that the political party, rather than the candidate, is prohibited based on the two rules of interpretation established, the questions that arise are: what was the intention of the lawmakers? What mischief was intended to be cured by the provisions prohibiting Diaspora donations for elections in Nigeria? Without a shadow of a doubt, it is to prevent financial influence from tainting the legitimacy and integrity of our election process, such that our sovereignty is not undermined.
If this is the case, would the lawmakers intend be to ban political parties but permit candidates who campaign on those parties’ platforms? Considering that only political party was expressly mentioned in the statutes, can it be argued that lawmakers wanted candidates to undermine our elections and sovereignty but did not want political parties to do the same? No, without a doubt.
The evident intention of the parliament must be understood in view of the fact that the statutes’ omission of the word “candidate” creates a gap, an inadvertent gap resulting from human limitation. Therefore, the legislature’s intent will be undermined by the letter of the law, which is the literal interpretation of the law’s wording; but the mischief will be cured by the spirit of the law, which is the interpretation of the legislation’s intended purpose. Should this matter come before the court, the court is duty bound to fill in this gap to suppress subtle inventions and evasions for continuance of the mischief.
The term “political party” as used herein must be construed to connote a political party and all of its ancillaries. Political parties are represented by candidates, and funding a candidate running for office for a certain political party is equivalent to funding that political party. Simply put, Mr. Peter Obi, or any candidate running for political office at any level in Nigeria, is prohibited from receiving funding from the Diaspora, the penalty for breach being forfeiture of the said fund along with a fine and not disqualification as some experts have advocated. Also, the provision for transferring any fund received from the diaspora to INEC within 21 days in section 225 (4) of the 1999 Constitution is not an exception to the forfeiture and fine penalties as advised.
There are undoubtedly gaps that merit highlighting in the provisions of sections 225 (3) (a) and (b) of the 1999 Constitution (as amended) and section 85 of the Electoral Act2022, beyond the substantive issue of financing for elections from the diaspora, its resulting restriction, and legislative intent. These provisions raise problems because they are exclusionary and discriminating;
Is a person of Nigerian descent living in Nigeria more Nigerian than a person of Nigerian descent living outside Nigeria? Should citizenship by birth as provided in Chapter 3 of the Constitution, and the subsequent right to participate in political life be extinguished by geographic realities? Why does the federation encourage, welcome, and celebrate diaspora remittances from Nigerians yet prohibit donations from them for elections? Will a donation made by a Nigerian who resides outside of Nigeria through his or her Nigerian bank account be deemed to have originated “outside Nigeria” and therefore violate of the law?
My argument is straightforward: The long-running lobbying and consultations must continue and become more strategic. This is because the provisions of the law blatantly discriminate against Nigerians abroad, and this is not right.
@florenceozor
