2023 Election: Peter Obi can’t be disqualified over crowd-funding –Ex-chairman, NBA-SPIDEL

The immediate past chairman, Nigerian Bar Association, Section on Public Interest and Development Law (SPIDEL), Paul Ananaba, in an interview with AriseTV Morning Show of Monday, September 5th and monitored by our correspondent, spoke on why a call by a support group of the All Progressives Congress (APC) presidential candidate, Asiwaju Bola Tinubu, for the disqualification of the Labour Party candidate, Peter Obi and his running mate, Yusuf Datti Ahmed-Baba cannot stand because it’s not backed by law.

The Labour Party national chairman, Julius Abure, reportedly inaugurated an 11-man diaspora committee in Abuja to raise funds for Obi.

Is it legal to do crowd-funding and get funds from the diaspora by a presidential candidate?

Simply, the laws are very clear on this, the political party, Labour Party in this instance, or even any political party for that matter, cannot raise funds from outside Nigeria. If they do, they cannot retain such funds. And the constitutional issue is there as much as crime within the electoral Act, Section 85. Now, let me take the constitutional part of it, Section 225, 23 A and B, is very clear that the political party cannot raise funds outside Nigeria or retain funds or accept. If they do, they must within 21 days turn those funds over to INEC and any contribution of such provision is a criminal offence. And I’m happy that we are now talking about Election Offenses commission and all that. These laws over time have been lying waste and they have not been activated. That’s why impunity in the electoral system has continued for some time. I think that, irrespective of the good intention or whatever, people have to support political parties in Nigeria, particularly, Nigerians abroad; they cannot do that from abroad, they can only come into Nigeria, and contribute. And when they do, the Electoral Act, Section 85, 86, 87, 88, 89, and 90 deals with election financing. And the effect is that it is an offense under the Electoral Act to contribute more than N50 million. So if you’re going to do that, INEC has to be notified.

Now, maybe because Peter Obi is the Labour Party, that is why a lot of attention is paid to it. Our laws do not say anything about the candidate. If you look at Section 152 of the Electoral Act, it does not define a political party to include its candidates in election. Now, if you also look at the definition of a candidate, a candidate does not include a political party. And that’s why in election petitions, whether pre-election or the election petition, the political party and the candidate sued are separately. So, the candidate is not caught up by this analysis I have made; these provisions of the Constitution may be going forward, so a candidate is not precluded from raising funds but the political parties are precluded. And if a political party raises funds, it must within 21 days, report back to INEC, turn the funds over to INEC; it cannot retain the funds for more than 21 days. So, I don’t think that Labour Party has looked at that. If they have looked at that, they should practically warn themselves, and then move away from raising funds outside the country.

If when the funds are within Nigeria, they have limitations. They have to comply with the law. Everyone should be more law abiding and no one should become too sentimental to avoid the clear provisions of the Constitution in this instance and then the Electoral Act. Now, INEC has a duty to also regulate election expenses and political parties have duties to make returns to INEC as to how much funds they raised, the expenses they make. And the Electoral Act is so clear that those funds must be accounted for. But you know, those are in our law books. In practice, I’ve not seen that happen.

Which is why Section 86, which mandates political parties to submit annually, their full statements of accounts to INEC, gives the provision for six months imprisonment for political party official rather than individual candidates just to buttress what you said. But I’ll start off with Labour Party’s position that this clamour arose from the diaspora, that they are individuals in the diaspora who want to support the candidature of their presidential candidate Peter Obi. So, is there any legal way that that can be done bearing in mind what we’ve just discussed? Secondly, there’s been a call for disqualification of Peter Obi from the presidential elections from the Tinubu-Shettima Support Group. Are there grounds for disqualification at this time?

Well, I don’t speak for INEC or the courts; I don’t also speak for the political group calling for disqualification. We are in a democracy, the call is the problem. And they can make calls for disqualification of any candidate. But speaking clearly, in the analysis, I stated clearly that Section 225 A, came in for the fourth operation and 225 itself of the Constitution does not talk about the candidates. So, there’s no basis to disqualify any candidates. It talks about the political parties raising funds from outside the country. Like I said, the candidate is not barred in any way from raising funds from outside Nigeria but the political party is. Okay, that’s what the Constitution says and that is what the Electoral Act says. No mention is made of the candidate. You can read Section 85,86,87,88,89 and 90. Now, where the regulations that are seen in respect of the candidate comes into how much you can spend for elections, the President cannot spend more than N5 billion, the governorship candidate cannot spend more than N2 billion. That’s what the law says; we shouldn’t go beyond the law. And talking about bringing in a disqualification on that ground for a candidate when the law does not say so, I don’t think it is correct. If we’re not satisfied with the law, we should take steps to ensure that there’s an amendment of the law. The Electoral Act is just fresh, Section 162, like I stated, does not define a candidate to include the political party, and does not define a political party to include its candidate. So, that is the position of the law as we speak. So a call can be made, but it won’t go beyond a call, because it is not backed up by law. In my opinion, the law is very clear. The party cannot but the candidate is not precluded.

Let’s talk about enforcement. Because in all of this, enforcement has been a big problem, and the fact that yes, there are guidelines on how much people can spend but obviously, they will outspend it. So for good measure, a certain political party, not part of the big ones, was having a meltdown. And one of their members did confirm that for the party primaries alone, the person that finally emerged the presidential candidate, the chairman of the party did ask him to give him N2 billion before they finally negotiated a certain amount, but he didn’t say if that money was given or not. But if for party primaries people have spent over N2 billion for a party that is not a major party, let alone the major parties, we saw how much is spent during their party primaries. So how realistic is this with what we have on ground? And how can we truly enforce all of this?

By academic life, writing about enforcement of judgments and laws, so I understand the point you’re making. An unenforced law is as good as no law. And that’s why in the course of my speeches, I was saying that, it is good news that we are having Election Offense Commission, because think about it, INEC cannot have the capacity to enforce all these laws. What you see from section 85 to Section 90, aside from other laws, and INEC cannot have that capacity. At a particular point, a former INEC Chairman, Professor Jega, had stated he had over 790 election offenses suspects, how much does the Commission have that it will begin to prosecute all those people. And that’s why after the threats that people should be brought to book, if you offend the Electoral Act, nobody is brought to any book. Now the Election Offense Commission, I support should be hastened and be put in place, and we will have special prosecutors on that point, then people will begin to know that that’s a bindingness of that law. So the enforcement is so important that the difference between some of our other countries in this part of the world and other parts of the world. No Nigerian will do certain things we do in Nigeria, in the UK or the US or even in South Africa, also other countries because of enforcement. They don’t have better laws. But it is just enforcement. The impunity that comes from the fact that oh, I can escape it.

People would have seen that in recent times, even a former Deputy Senate President, it’s been difficult to even secure bail in the UK, despite our relationship with the UK. I have seen commentators say that if this had happened in Nigeria, that that matter would have been over. So, we should begin to show that our laws are serious by ensuring enforcement, that is a major agenda for anyone who wants to rule this country. I would expect as a judgment enforcement minded lawyer to tell Nigerians that what such person will do at the state level, local government and national level, to ensure that our laws are enforced not preferentially, not randomly, but in an organized and clear manner that people now know that if you do anything wrong in this country, there’s a consequence; there are sanctions which will surely come to pass.

Just for clarification. Will it be correct to infer that the presidential candidate of the Labour Party setting up a diaspora committee to do crowd-funding has not violated any law? Is that what you’re saying?

Yes, Section 225, doesn’t say anything about the candidate, I made a point very clear. It doesn’t say anything about any candidate. You have to read this in a communal and committee, way; you have to raise it purposively. When you read 225 of the Constitution both 225A that came from the Fourth Operation and 225 itself, and then Section 85 of the Electoral Act, along with Section 152 of the Electoral Act, then you get a clearer picture. Now, when you read 85 to 90, where a candidate is intended by the law, it says, a presidential candidate shall not spend more than N50 billion, it calls the candidate.

Now, any presidential candidate or any candidate is not precluded from raising funds from outside Nigeria by the law as it is today. But the political party sponsoring him cannot. So if Mr. Peter Obi is raising as Labour Party, that is an offense. That is not correct. That is wrong. But as an individual, there may be other laws to talk about not Electoral Act, not the Constitution; it maybe talking about things, like financial regulations and things that go with terrorism financing and all that. I don’t see whether there has been any infraction but as far as the constitution is concerned, on a candidate and not the party. The candidate is a candidate, the party is a party. The candidate is the person sponsored by the party and has a legal significance, a legal status, separate from the party. So it may be necessary to amend the law if we intend candidates to be bound by that law. A law may have to be put in place for that purpose.

Is the problem with the amount that the Labour Party presidential candidate wants to raise. We heard $150 million, we heard N100 billion?

There is a problem, you cannot raise more than N50 million to a political party. That’s what the Electoral Act says. You cannot contribute more than that. If you look at Section 87 of the Electoral Act, it is very clear. There’s a fine for it. If you contravene it, there’s a fine of N10 million and all that. So, in Section 87, it is INEC that will regulate the amount of money you can raise, and in this instance, they cannot raise from outside the Federal Republic of Nigeria. That’s a problem, first hurdle. Second hurdle is you cannot raise more than N50 million. So that amount, that is $150 million goes way outside it. And the law enforcement must stand firm on this before other parties begin to join. It must be clearly stated to the Labour Party that they cannot raise. Like I said, the candidate is not directly affected by that.

*Even the candidate can spend more than N5 billion under Section 88?*
Exactly, he can’t spend more than N5 billion. Yes.

Right, the law is clear. But what’s your take on the exclusion of Nigerians in the diaspora throughout the political process. Not only can they not vote on Election Day, there’s this problems with them donating to their preferred campaign fund. Would you like to see an amendment sort of like what we saw in Kenya, where 12 countries had Kenyans voting, countries like Qatar, the United Arab Emirates, the United Kingdom, and what have you, with Kenyan residents that were able to participate in their electoral process?

I think that it is not fair to Nigerians in diaspora to exclude them from voting maybe, logistic points. I look forward to the 2027 elections, that every effort should be made that every Nigerian should vote, wherever they are. I don’t want to get into the complicity of nationality but once you are a Nigerian, and you intend to vote, the ICT and technology has been far developed across the world that we cannot say, because you are not in Nigeria, you cannot vote. And let me take that point again you alluded to, the point of those in diaspora trying to fund or support political participation. These are Nigerians, they should bring in their money to Nigeria, to support the economy. And they can donate from their accounts in Nigeria, they don’t need to donate money from outside Nigeria to offend the law. If they want to support a political party, they can do that by bringing their money into Nigeria and then support the political party that they want to, within the limits allowed by the law.

Still on electoral financing, and the likes and alternative, there are some models in parts of the world, and the Americans lead the way in terms of very innovative financing with things like Superpark, where groups put themselves together; they raise their own money, independent of the political party, independent of the candidate, but they use that money to fund the candidate. Is there a possibility of that anytime soon in Nigeria?

Yeah, but the electoral laws of the Americans may not be the same with Nigeria. I was saying that section 87:1 is very clear; it says that the INEC must regulate contribution. And if you go down to about 88, 89, it says that you cannot donate to political parties more than N50 billion. So, there are restrictions. You have your freedom to within Nigeria to support any political persuasion but then it can’t be more than N50 million. If it is, the Commission will have to carry out its duties to ensure that there is sanity, otherwise, we will just be doing money politics.

Is that not what we are doing in Nigeria?

I’m not in a position to say so but when you look at election observers and reports from elections, we hear that that is a vote buying. Nobody has been convicted of that to be acknowledged now. So when we have convictions, we can then say authoritatively that money has dominated what to do here.

INEC is also to regulate you know, finances that can be used take for instance for the purposes of media exposure, banners and things like that, and your popularity boosting events and things like that are organized independent of the political party, because that is also supposed to be part of the cost that makes up that 5 billion, but most of the time, how does INEC scrutinize it? In climes like France for instance, there is a stipulated measure of media exposure you can give to each candidate, which if it is passed, it would be validated, but how does INEC enforce things like that here?

We go back to enforcement. I do not think that these laws have been enforced as I have said earlier. And it is overwhelming to live one agency, one commission to do all these. That was why I was saying that an Election Offense Commission would be very helpful to this country. And that commission should be set up as at today. It will now be the duty of that agency to regulate exposure, finances, how you spend, what you do, then you will see that what you call money politics would be downplayed if that agency comes up and works; they will have the duty to scrutinize how much that comes in, how much is spent, and then we may begin to go to ideologically based politics. Look at the BVAS machines that INEC deployed; because of that, we’re no longer talking about ballot stuffing now, carrying of ballot papers, shooting people and all that is no longer there, because technology has taken care of it. There’s been a solution. So, it is with this election financing. We need that Election Offense Commission to come up quickly. It is not for something you say the police there, there are other security agencies, they may not be well cut out to address the sophistry of politicians. This commission should be a step ahead of the politician; the police officer may not have that capacity, they may not have that special training and we can continue to complain every election round and write reports and it will not change anything.

So the better thing is to have a specialized agency. In France and all those places, they are highly regulated. And again, the level of patriotism in such countries may be very high, you know, they don’t want their system to be polluted in any manner. I mean, look at our country today, do we have records of previous convictions of people? Is our national archives functioning effectively? So that you now know that if you are convicted, you can be tracked easily? Many people have not been dragged into that net. So these are the issues, but we will begin to solve them from yesterday. You know, we should begin to put things in place. We have done well even as a country but we need to do better than where we are.

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