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Zoning: The next frontier (I)

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By Mohammed Adamu

This hopefully three or four-part piece will be a re-jig of a three-part series I wrote in 2010, titled In Search of Pro-Zoning Luminaries. As the issue of zoning or power-sharing is sure to soon take the centre-stage of our political discourse, we may as well begin to begin, from the beginning. As the philosopher-poet, George Santayana would say: “Those who will not remember history are condemned to repeat it.

In search of pro-zoning luminaries (III)

As a body corporate, and fully conscious of the constitutional right of contest of its members, the Peoples Democratic Party, PDP, had, as far back as 1999, consensually agreed on a North-South presidential power-sharing arrangement. It was easier done than said for politicians. But to lawyers, this was sure to subordinate its members’ superior constitutional right of contest to the vagaries of an inferior majoritarian privilege –namely the privilege, by consensus or by a ‘simple majority’, to adopt a position on a matter that the constitution is noncommittal about. The idea was that political power would now be rotated regionally rather than geo-ethnically between the North and the South.

And the political south (to be specific, the Southwest), still smarting from the unjust annulment of June 12, would be the first to draw from this intra-party agreement. Even though the late Abubakar Rimi, a northerner, would be the only member of the PDP who would put the legitimacy of that consensual agreement to test not only by publicly condemning it as undemocratic and illegal, but also by throwing his hat in the ring to contest for the office of the president alongside a south-western Olusegun Obasanjo and a south-eastern, Alex Ekweme.

Rimi’s participation had virtually invalidated the ‘gentleman’s agreement’, and there was technically now, no proverbial ‘good turn’ that the North could be said to have done the South that it too should ‘deserve another’ done to it at the expiration of Obasanjo’s terms. Probably the North should’ve, in one voice, condemned or disowned Rimi’s recalcitrance –which, let’s face it, it did not. And how could it anyway, when most it was not PDP. Nor did the North, when Obasanjo was almost toying with the idea of handing over to one of Donald Duke or Peter Odili, feel obligated to protest the violation of a strictly intra-party agreement.

By the way, Obasanjo was probably stupefied that the North did not seem to care a hoot who he handed over to. Perhaps because the North virtually wanted no such gratification because it too may have no future plan to gratify others whenever it hamstrings its future ‘born-to-rule’ mentality. And maybe it was in blush of his bluff being called off by a nonchalant North that Obasanjo had to make a volte-face to show fidelity to the power-sharing agreement by now anointing a terminally-ill Yar’Adua. This is about the only basis for any southern sense of entitlement, if you like, come 2023, to have power returned to it after Buhari. But if the political premium was paid under a PDP agreement, it is preposterous that the indemnity should now be paid by an All Progressive Congress, APC.

But back to the legal validity of zoning itself; by contesting especially the 1999 primaries of the PDP, Abubakar Rimi was practically demonstrating his personal refusal to forfeit his superior constitutional right of contest by submitting it to the regulation of an inferior internal party arrangement. Had he won the primaries, as indeed he could have, Rimi would’ve been the proverbial ‘spanner’ right in the works of a democratic consensus that had sought to sanctify power-sharing. Meaning that the constitutional right of contest of just one member of a political party is superior to the consensual or majoritarian will of all its members. A member must wilfully forfeit such constitutional right, before an ordinary non-constitutional privilege can legitimately subsume it.

By the rule emanating from the Common law case of ‘Foss V Harbottle’, Rimi would still have had a pretty justiciable case, had the PDP, on the grounds of the zoning consensus, dared to prevent him from exercising his constitutional right of contest. The Harbottle rule established the principle that in the event of an irregular situation (e.g. foisting a zoning agreement on members) in the internal management of a ‘body corporate’; and if the ‘irregularity’ is one capable of being ratified by a majority of the members of that ‘body’, the courts will not entertain a suit by a minority member who has not first exhausted the internal resolution mechanism of the ‘body’.

Meaning for example, that if Rimi had been disqualified by the party’s screening committee strictly on the grounds of illegibility occasioned by not being from the South where the ticket had been zoned to, under normal circumstances he would first have had to petition the appropriate organ of the party and get no justice from it, before he could approach the courts for the regularization of the irregularity (of zoning) that had appropriated his constitutional right of contest. But not if the circumstances are not normal. Then he can approach the courts straight without having to exhaust the internal resolution mechanism of the party.

And there are five such circumstances according to the Harbottle principle when a ‘minority’ party may bring an action in court against the ‘majority’ members of his ‘organization’, ‘association’ or political ‘party’ without having to first exhaust the group’s internal resolution mechanism; and that is whenever such action by an aggrieved party, is brought before the courts:

1] to restrain that ‘body’ from committing an ultra vires act, namely an act beyond that ‘body’s’ legal authority. If an existing statute expressly denies political parties the right or power to bar their members from electoral contest on the grounds of having zoned a particular ticket outside their place of origin, then the doing of that will be beyond a political party’s legal authority, and any member affected by such ultra vires act may approach the courts without having first to exhaust the group’s internal resolution mechanism.

2] to restrain that ‘body’ from committing an act to achieve, by a simple majority, that which by the ‘body’s’ extant rules ought to be achieved by a special majority. If the internal rules of a political party recommends that only a two-third majority members can achieve a particular thing, then achieving that thing merely by a ‘simple majority’ infringes on the rights of those affected by such action –and they can seek to remedy the situation through the courts without having first to exhaust the group’s internal resolution mechanism.

3] to restrain the majority or even minority members of that ‘body’ from committing an act that is tantamount to a fraud against other ‘majority’ or ‘minority’ members of that ‘body’. When that happens, any member or members, say of a political party affected by such ‘fraudulent’ conduct of the ‘majority’ or ‘minority’ members may go to court without having first to exhaust the group’s internal resolution mechanism.

4] to restrain that ‘body’ from committing an act which amounts to invading or violating the membership rights of those who belong to that ‘body’. Where for example a right that accrues to a member, say of a political party on account strictly of his membership, then the invasion or violation of such membership right (say of ‘electoral contest’) by other members (whether they constitute the majority or minority), is actionable by the affected member or members without having first to exhaust the group’s internal resolution mechanism.

Obviously no action could have been sustainable against the PDP on (1) above since the party did not exceed its legal authority simply by rallying its majority members consensually to agree on that which even the constitution does not expressly forbid, rather its Section 224 even anticipates that “The programs as well as the aims and objectives of a political party shall conform with the provisions of Chapter II” namely referring, among others, to its Section 14 which mandates a reflection of the nation’s federal character in the appointive –and by necessary implication- even the elective duties of governmental and political organizations. Herein lies the constitutional obligation for political power-sharing in a multi-cultural, multi-ethnic and multi-religious country like Nigeria.

Obviously also, no charge could’ve been sustained against the PDP on (2) above since there was no complaint by any members that the party had achieved its consensus on zoning by abusing any of the due processes by which such decisions were to be arrived at; nor could any charge be sustained against it on (3) above since the party could not be said to have committed a fraud on the minority simply by agreeing on an altruistic power-sharing arrangement that recognizes and respects the plural nature of the Nigerian society –with the sole object of achieving political stability with the attendant unity, peace and progress that are bound to go with it.

What definitely could have been brought against PDP for its adoption of zoning was a charge on (4) above, namely the invasion and or violation of membership right; the right of any of its members –not encumbered by any existing law- to freely contest election without any extra-constitutional hamstring of the nature of an internal party arrangements. It would’ve been beyond the legal authority of the PDP and also invasive of Abubakar Rimi’s constitutional right of contest if the party’s screening committee had disqualified him on the grounds that he was ineligible by reason of his not coming from the region where the party’s ticket had been zoned.

Rimi, having objected to, and at no time ever benefitted from the party’s zoning arrangement, was justified to have resisted the invasion of his membership right of contest. But not so any other members who may have beneficially acquiesced to the party’s consensual zoning arrangement. Especially Yar’adua and Jonathan who, as proof of the forfeiture of their right and evidence of their unconditional endorsement of zoning, had accepted to benefit from it by accepting the party’s invitation to fill a presidential and a vice presidential zoning concessions on behalf of the North and the South respectively.

This they both did consciously and without any doubts that they were drawing not necessarily from the pool of democratic merit but from the spring of political consensus –which the constitution, rather than frowned at, on the contrary encourages. If Yar’adua’s and Jonathan’s practical consummation of zoning in a beneficial way implied personal acquiescence, there was implied also in that acquiescence, not only an undertaking to be bound, but also a promise, in the fullness of time, to return benefit for benefit.

  • To be continued

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