By Festus Ogun, Esq

Following the pledge of a Diaspora Support Group to crowdfund $150m for Peter Obi’s campaign, concerns are raised in some quarters over the legality and constitutionality of diaspora donations made in respect of Mr. Peter Obi’s Campaign. In fact, some groups reportedly called on the Independent National Electoral Commission (INEC) to “without delay” disqualify Mr. Peter Obi, the Presidential Candidate of the Labour Party, from the 2023 Presidential race.

To be clear, donations made by concerned citizens and support groups (either in Nigeria or in the diaspora) to Peter Obi and or his Campaign Team are not in violation of any living law in Nigeria.

Those who hold otherwise rely largely on Section 225(3)(a)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as altered) and Section 85 of the Electoral Act, 2022. With greatest respect, these provisions of law are generally inapplicable to this instant case and those who rely on them to demand from INEC the disqualification of Mr. Peter Obi, which is itself laughable, are either mischievous or misconceived.

Section 225(3)(a)(b) of the 1999 Constitution of the Federal Republic of Nigeria (as altered) provides 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 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 above provisions of law are clear and unambiguous. The wordings are not difficult to understand; even for laymen that have never stepped on the corridors of any law school. Importantly, our law is beyond settled that where words used in a statute are clear, straightforward and unambiguous, they should be accorded their grammatical, plain, ordinary and natural meaning. In SKYE BANK V. IWU (2017) LPELR-42595(SC), the Supreme Court, per Kekere-Ekun, emphasized that “the general rule of interpretation of constitutional provisions is that where words used are clear and unambiguous, they must be given a literal interpretation i.e. they must be given their ordinary and grammatical meaning”.

On the strength of the above, we are compelled to rely simply on the plain, clear and grammatical meaning of the above provisions of law. A careful consideration of the sections of law reproduced above shows that the 1999 Constitution simply 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. The Electoral Act, by virtue of Section 85, only compliments the constitutional provision by prescribing punishment for its breach.

In our considered view, 225(3)(a)(b) of the 1999 Constitution is only applicable to Political Parties and it is not applicable to political candidates or their campaign organizations. It is not a subject of debate that the diaspora donations are said to be made to either Peter Obi and or his Campaign Organization. The question that follows is whether Peter Obi or his Campaign Organization(s) is a Political Party envisaged under 225(3)(a)(b) of the 1999 Constitution?

Section 318 of the 1999 Constitution gives no definition for a “political party”. Thankfully, Section 152 of the Electoral Act, 2022 defines a “political party” to include “any association of persons whose activities includes canvassing for votes in support of a candidate for election under this Act and registered by the Commission”. (emphasis mine) We respectfully submit, therefore, that a candidate or his campaign organization(s) cannot be regarded as a political party under our extant electoral jurisprudence.

Having cleared that, it is safe to say that donations made to Mr. Peter Obi or his Campaign Organization in furtherance of his Presidential Campaign cannot be said to be made to a Political Party as envisaged under 225(3)(a)(b) of the 1999 Constitution. Neither Mr. Peter Obi nor his Campaign Organization is a “Political Party” and must not be mistaken or confused for Labour Party, a duly registered political party under the law. It would have been a different ball game entirely if the donations were made to Labour Party, as a political party. Donations made to Political Candidates or their Campaign Teams are not caught under 225(3)(a)(b) of the 1999 Constitution and Section 85 of the Electoral Act and are therefore not illegal and unconstitutional.

Our position is further fortified by the Latin maxim: “expressio unius est exclusion alterius” meaning in the interpretation of statutes “the express mention of one thing is the exclusion of the other not mentioned; what is not included in a statute is not to be read into it”. See: COMMISSIONER OF LOCAL GOVERNMENT & CHIEFTAINCY AFFAIRS & ANOR V. ONAKADE (2016) LPELR-41133(CA).

Applying the above rule to the provisions of law stated earlier, it becomes apparent that the express mention of the word “political party” in 225(3)(a)(b) of the 1999 Constitution and Section 85 of the Electoral Act automatically excludes donations made to political candidates or their campaign groups. And the exclusion confirms the inapplicability of that section to political candidates and their campaign groups.

Importantly, 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 expenses a Presidential Campaign Support Group can incur.

Either at home or abroad, Nigerians shall continue to enjoy their constitutional rights and civil liberty to support any candidate of their choice in cash or kind. Political candidates and their support groups are however advised to be transparent and accountable especially in the management of donated resources. God bless Nigeria.

Festus Ogun is a constitutional lawyer and Managing Partner at FOLEGAL, Lagos. Contact him festus@folegal.net