federal political finance reforms Archives - Centre for Social Justice

The challenge of foreign money for national elections

Center for Social Justice — Mon, 05 Sep 2022 07:47:07 +0000

The source, quantum and deployment of election-related expenses of candidates and political parties is a topical issue and in many jurisdictions, it is regulated by law. Nigeria is no exception. The Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Electoral Act 2022 have made provisions on the subject matter. One of the provisions deals with the regulation of foreign funding of political parties. This discourse reviews the legal provision and the challenges that might arise in its interpretation.

S.225 (3) of the Constitution provides that (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. By subsection (4) of the same section, any funds or other assets remitted or sent to a political party from outside Nigeria shall be paid over or transferred to the Commission (Independent National Electoral Commission) within 21 days of its receipt with such information as the Commission may require. The Electoral Act provides directions and sanctions for political parties in respect of foreign funds in S.85. It states that any political party that holds or possesses any fund outside Nigeria in contravention of S.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 N5million. Furthermore, a political party that retains any fund or other assets remitted to it from outside Nigeria in contravention of S.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 million.

A literal reading of this section limits the prohibition of dealing with funds and remittances from outside Nigeria or possessing or holding any funds or other assets outside Nigeria to political parties as distinct from candidates. Will this be interpreted to mean that this provision does not apply to candidates? Are candidates free to retain any funds or assets remitted or sent to them from outside Nigeria? The answers to these posers are not clear in the face of the provisions of both the Electoral Act and the Constitution.

It is imperative to inquire into the intention of the legislature or the jurisprudence behind barring foreign money or assets from political parties. First of all, there is a general legal intention to limit the influence of money in politics so that elections are not reduced to the will of the highest bidder or the richest political parties. Secondly, where donations to political parties are allowed, they are usually capped and a ceiling is imposed. By S.88 (8) of the Electoral Act, the maximum permissible in Nigeria for an individual to donate to a candidate is N50 million. Across so many nations, the prohibition of foreign money funding national elections is premised on the fact that democracy and elections should be about giving expression to the will of citizens and eligible voters. Allowing foreign natural and artificial persons to provide resources for national elections will imply that persons who are not eligible to vote or to be voted for are now in a position to influence the outcome of national and local elections. This could lead to a subversion of national sovereignty where elected officials will become beholden to foreign interests.
Against the background of this explanation, it appears the limitation related to foreign money should cover both the political party and the candidates. Considering the candidate-centric nature of elections in a presidential democracy, where rich candidates can spend huge sums of money outside the party electoral structure, the law should have been explicit on the prohibition covering political parties and candidates. But if the law did not explicitly provide for this prohibition of candidates, it is the duty of INEC to use its omnibus regulatory powers to extend the prohibition to candidates. Otherwise, it would be difficult to sustain a conviction of a candidate in court or forfeiture of money sent to him from abroad in the light of S.36 (12) of the Constitution. This subsection requires a criminal offence to be defined and the penalty clearly stated in a written law before you can charge and sustain a conviction against any individual. Written law refers to an Act of the National Assembly, the law of a state or subsidiary legislation made under the authority of a valid law.

Assuming that this prohibition of foreign money in Nigerian elections scales the hurdle of being liberally interpreted or under the authority of subsidiary legislation extended to candidates, how will the phrase; “be entitled to retain any funds or assets remitted or sent to it from outside Nigeria” be interpreted? If the jurisprudential thought is to bar foreigners from interfering in national elections, will Nigerians living in the diaspora be put in the same categorisation for example as Americans, Canadians, etc.? The answer will obviously be negative. If you were to classify them as foreigners, wiring money directly to a candidate’s or political party’s account will be in violation of the law. However, assuming a Nigerian living in Canada has a bank account in Lagos, Kano, or Enugu and wires money to his Nigerian account or his relative’s account – which is legal, and from that account or his relative’s account, money is dispensed to a political party or candidate, would this be categorised as foreign money? I doubt if anyone in good conscience can categorise that as foreign money.

The Constitution and the Electoral Act seem to have a lacuna that needs to be properly addressed in future amendments and reviews of the Electoral Act. Some of these issues were raised in the report of the Centre for Social Justice on reforms and amendments to the campaign finance provisions of the Constitution and Electoral Act submitted to the National Assembly as a contribution toward the review of the Electoral Act. Unfortunately, these issues were ignored and the challenge remains.

In conclusion, INEC needs to cover the field in its regulations to ensure that grey areas are addressed and that there is certainty in the campaign finance laws and regulations in the campaigns for the 2023 elections.

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The Case For Improved Funding Of The Code Of Conduct Bureau

Center for Social Justice — Thu, 30 Jul 2020 12:11:06 +0000

DownLoad PDF file below

[ddownload id=”216304″ text=”Reforming Nigeria’s Assets Declaration Framework: Policy Brief No.2″]

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A BILL FOR AN ACT TO MAKE THE ASSETS AND LIABILITIES DECLARED BY PUBLIC OFFICERS ACCESSIBLE TO THE PUBLIC, PROTECT THE PRIVACY OF DECLARANTS AND OTHER MATTERS CONNECTED THEREWITH

Center for Social Justice — Thu, 23 Jul 2020 14:41:50 +0000

ENACTED by the National Assembly of the Federal Republic of Nigeria
1. Objectives of the Act
The objectives of this Act are:
(a) give effect to the right to inspect declaration of assets and liabilities of public officers as provided in the Third Schedule Part 1 of the Constitution of the Federal Republic of Nigeria 1999 (as amended);
(b) promote a culture of accountability, openness and transparency in public administration while protecting the privacy of public office holders and by so doing promote the political objectives contained in section 15 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended);
(c) promote public confidence in the integrity of public office holders and the decision making process in government; and
(d) promote efficient public administration and good governance.

2. Scope of Application
This Act shall apply to all declaration of assets and liabilities by public officers pursuant to the provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended)

3. Right of Access to Declaration of Assets and Liabilities
(i) Notwithstanding anything contained in any other Act, law or regulation, the right of any person to access declaration of assets and liabilities of public officers in Nigeria is hereby established.
(ii) An applicant under this Act needs not demonstrate any specific interest in the information being sought for.
(iii) Any person entitled to the right of access to declarations of assets and liabilities under this Act shall have the right to institute proceedings at the Code of Conduct Tribunal or at the Federal High Court to compel the Code of Conduct Bureau or any relevant person or authority to comply with the provisions of this Act.

4. Public Access to Declarations
(i) The Bureau shall make the declaration of assets and liabilities of public officers in its custody available to the public for inspection through a website.
(ii) The Bureau shall ensure the proper organization and maintenance of all information on declaration of assets and liabilities in its custody in a manner that facilitates public access to the declarations.
(iii) The Bureau shall upload and arrange the declaration of assets and liabilities to the website in a way and manner that makes the declarations searchable by name, position, agency and other criteria that facilitates identification of specific public officers and downloadable and printable from a personal computer.
(iv) The Bureau shall upon the expiry of the date due for declarations, prepare and display on the website, on an agency by agency basis, a comprehensive list of public officers who have declared their assets and liabilities and a list of those who have not complied.
(v) Declarations of assets and liabilities are to remain on the website throughout the time a person holds public office and three years afterwards; thereafter the declaration is archived.

5. Exemption of Personal Information
(1) The Bureau shall before displaying the declaration of assets and liabilities on the website remove the following information from the declarations:
(a) national identity numbers;
(b) street address of any immovable property;
(c) banks, bank account numbers and bank verification numbers;
(d) certificate number of bonds, debentures, stocks, savings certificates, pension accounts, life insurance, trust
funds and other securities;
(e) vehicle registration numbers;
(f) full names of minors except initials;
(g) any disclosures related to health; and
(h) trade secrets and commercial or financial information where such information is proprietary, privileged or
confidential or where the disclosure of such trade secrets or information may cause harm to the interests of third
parties provided that nothing contained in this subsection shall be construed as preventing the disclosure of
interest and ownership of assets and liabilities.

6. Request for Update of the Website and Time Limits
(1) Any person shall have the right to request in writing from the Bureau an update of the website to include the
declaration of assets and liabilities of any public officer that is not available on the website.
(2) Illiterate or disabled applicants who by virtue of their illiteracy or disability are unable to make an
application for update may make the application through a third party.
(3) Where an application for update is made under subsection 1 of this section, the Bureau shall within seven days
after the application is received:
(a) effect the update on the website to include the declaration of assets and liabilities of the public officer
requested;
(b) where the public officer is yet to declare his assets and liabilities, the Bureau shall give notice to the
applicant that the public officer has not declared his assets and liabilities and indicate the steps taken by the
Bureau to ensure compliance by the public officer.
(4) The Bureau may extend the time limit set out in subsection 3 if there are circumstances that reasonably delay
its compliance with any of the options, provided however that the response to the applicant shall not exceed
fourteen days from the date after the application is received.

7. Judicial Review
(1) An application made under section 3 of this Act shall be heard and determined summarily.
(2) In any application under section 3 of this Act, the burden of establishing that the declared assets and
liabilities have been published on the website shall be on the Bureau.
(3) Where the Court is satisfied that the Bureau did not publish a declaration of assets and liabilities in its
custody on the website, the Court shall order the Bureau to publish same on the website.
(4) The Court may make such orders at it deems fit for the purpose of enforcing the provisions of section 6 of
this Act.
(5) Any order made by the Court may be made subject to such conditions as the Court deems appropriate.

8. Protection of Public Officers and Users of Information
(1) No civil or criminal proceedings shall lie against any public officer for publishing the declaration of assets
and liabilities as required under this Act.
(2) No civil or criminal proceedings shall lie against any person receiving or further disclosing and using
information on declaration of assets and liabilities.

9. Interpretation
In this Act
“Applicant” refers to any person who requests for the update of the website or initiates a judicial proceeding for
the implementation of the Act.
“Application” means a request for update of the website or a suit in court for the enforcement of the Act.
“Assets and Liabilities Declaration” means a written declaration of all the properties, assets, liabilities and
conflict of interest situations of a public officer, his spouse and those of his unmarried children under the age
of 18 years as contemplated in the 1999 Constitution.
“Bureau” means the Code of Conduct Bureau established under section 153 of the Constitution and as detailed in the
Third Schedule, Part 1 of the Constitution.
“Court” means a High Court of a State or of the Federal Capital Territory or a Federal High Court.
“Public Officer” has the same meaning as stated in Fifth Schedule, Part 11 of the Constitution of the Federal
Republic of Nigeria 1999 (as amended).

10. Citation
This Act may be cited as the Access to Assets and Liabilities Declaration Act, 2019

Explanatory Note
This Act gives effect to section 3 (c) of the Third Schedule, Part 1 and section 15 (5) of the Constitution of the
Federal Republic of Nigeria 1999 (as amended) by providing for public access to declaration of assets and
liabilities of public officers.

The post A BILL FOR AN ACT TO MAKE THE ASSETS AND LIABILITIES DECLARED BY PUBLIC OFFICERS ACCESSIBLE TO THE PUBLIC, PROTECT THE PRIVACY OF DECLARANTS AND OTHER MATTERS CONNECTED THEREWITH appeared first on Centre for Social Justice .