The role of independent candidates in elections is contested in many African countries. The Constitutional Court in South Africa issued a landmark decision on the question during June 2020. It held that the law had to be changed so that independent candidates may contest seats in elections. When a similar complaint was brought to the courts in Nigeria, however, the result was the opposite: there the courts upheld laws permitting candidates to contest political elections only via established political parties. Seven Nigerians subsequently asked the Court of Justice of the Economic Community of West African States (ECOWAS), for its view. Now, three ECOWAS judges have handed down their decision. They found against the seven, and held that the Nigerian system, with its bar on independent candidates, was valid, lawful and not an infringement of rights in the African Charter.
This case involved seven Nigerians who want to stand for elective office as independents. They were contesting Nigerian law in terms of which an individual must be a member of a political party in order to participate in elections, and thus become part of government.
As Nigeria is a member state of the Economic Community of West Africa States (ECOWAS), the seven approached the community’s Court of Justice with their complaint. Their argument was that the rights of citizens to take part in government was restricted in Nigeria because ‘the only platform for aspiration to elective office’ was via political parties, and because of the country’s ‘total ban’ on ‘independent candidacy’.
In their view, this restriction and ban denied them key participation rights enshrined in the Universal Declaration of Human Rights, the African Charter and the International Covenant on Civil and Political Rights.
Anyone who wanted to stand for ‘any elective office’ in Nigeria had to be a card-carrying member of a political party and the party had to ‘certify’ the potential candidate as someone who had ‘fulfilled all its internal regulations and formalities to be presented as a candidate for any elections’.
The seven, ‘public spirited individuals’, had ‘good intentions to serve their country selflessly’ but were ‘hamstrung by the restrictions’ limiting candidates to those who were signed-up members of political parties. They said that by barring independents, the law infringed the African Charter which gave them the right to participate ‘freely, directly or indirectly, in the government of their country’. In particular, this was because Nigeria refused to let them stand as independent candidates.
The Nigerian government, however, said the rights of the seven had not been violated and that the legal provisions related to candidates having to be members of a political party did not infringe any international human rights instruments.
The ECOWAS judges found that they had jurisdiction to hear the case and that the dispute was not time barred. They also found that, where it was proven that ‘any human rights violations have occurred as a result of an application of any offensive laws’, members of the court had the power ‘to direct their review in conformity with international and community obligations of member states’. While the court did not have jurisdiction to examine national laws in the abstract, it had the competence ‘to compel member states to conform or meet their international and community obligations’ and it did this by examining disputed national laws to see whether, indeed, any human rights violations had occurred.
Their decision is important for Nigeria and the seven would-be candidates for election because the judges found that the law did not violate any of the rights of the African Charter or other international instruments.
But it is also noteworthy in the context of growing scholarly and legal interest in whether and when courts – regional and domestic – cite one another. For example, in June, when South Africa’s Constitutional Court considered the question of independent candidates and existing law, the majority decision cited a case from the African Court on Human and Peoples’ Rights, a move that many legal scholars regarded as significant.
In their new decision, the ECOWAS judges cited the same African Court judgment as had been mentioned by SA’s Constitutional Court. But did so in order to distinguish and differ from it.
The ECOWAS judges commented: ‘ … (C)onsidering the relative younger age of this court vis a vis other international courts, it has enormously benefitted from the external aids to interpretation particularly foreign judgments i.e. judgments of other international courts and tribunals where the issues concern interpretation of provisions of statutes in pari materia.’
It added, ‘Though of persuasive effect, this court has resorted to pronouncements of such courts of no mean standing like the European Court of Human Rights and the African Court of Human Rights (sic) in carving its own jurisprudence.’
In the course of their argument, the seven had relied heavily on the African Court’s decision in the case of Mtilika v Tanzania. In this case, also cited by the SA Constitutional Court, the applicant had successfully challenged Tanzania’s bar on independent candidates contesting political elections. The ECOWAS court obviously felt it had to deal with the strong emphasis by the seven on the fact that the African Court had found in favour of extending political standing to independent candidates. In their decision, the ECOWAS judges said that the (ECOWAS) court ‘draws inspiration from the right, flourishing and persuasive jurisprudence of the African Court … and other reputable International Courts,’ but that the judges were not ‘bound to follow their decisions.’
The Nigerian case differed from the Tanzanian case in many ways, they said. One of these was that in Tanzania there were ‘only two political parties and no other choice of association’, while in Nigeria ‘there are many political parties’ and the seven had the choice of ‘joining or better still the choice of forming their own political party’.
Concluding that Nigeria’s electoral system did not ‘stifle or restrict’ the right to direct or indirect participation in elections, the judges found that Nigeria was not in breach of its community obligations as enshrined in the African Charter. Nigeria’s bar on independent candidates standing for political election ‘was neither without justification nor arbitrarily instituted.’ The country had chosen this route and it was in the best position to know ‘what is most suitable for the country … what is reasonable and necessary for a democratic society like Nigeria’. Its decisions could not be seen as a ‘violation’ of the rights of the seven.
Nigeria had more than 200m people and over 90 registered political parties, so ‘one can imagine a situation in which every adult citizen of voting age decides to stand as an independent candidate in an election’. The court added that in such a case ‘the task to manage the electoral process will be humongous.’