The Peter Obi phenomenon gains momentum and traction by the day. It has become an undeniable surging people’s movement, bought into my many Nigerians, both at home and in the Diaspora.
Any presidential candidate of any of the other two leading political parties ( the APC and PDP) that ignores its essence or down-plays its relevance, does so at his great peril and clear misunderstanding of the current pent-up sentiments by the Nigerian people. President Muhammadu Buhari greatly disappointed most Nigerians, including his most die-hard Buharists and Buharideens.
That has led to mass disillusionment, despondency, melancholy, poverty, hopelessness and haplessness amongst majority of Nigerians crying for salvation. Many Nigerians therefore understandably want a change of environment and the inhalation of a breath of fresh air in terms of generational, ethnic, geopolitical, educational and party power shift.
The intervention by Nigerians in Diaspora It is with this background that Nigerians in Diaspora on Thursday disclosed their plan to raise a whopping $150 million through crowd-funding, to support Obi’s presidential bid. Is this patriotic step permitted by the Nigerian Constitution and the Electoral Act, the two extant laws that govern expenses that may be incurred by political parties and their candidates? We shall, in this analysis, concentrate only on presidential candidates, Mr. Obi, being one.
Election expenses Section 89(1) of the Electoral Act, 2022 (“the Act”; “the 1922 Act”), defines “election expenses” to mean “expenses incurred by a political party within the period from the date notice is given by the Commission to conduct an election up to and including, the polling day in respect of the particular election”.
The Independent National Electoral Commission (INEC) has already given Saturday, 25th February, 2023, as the date of the Presidential election. Section 225 (1), (2) and 3 of the Constitution of the Federal Republic of Nigeria, as altered, (“the 1999 Constitution”, broken down in easily assimilable way, simply means that no political party shall be entitled to retain or keep funds sent to it from abroad, but shall, instead, transfer such funds to the Commission (INEC) within 21 days of receiving such money.
The political party is also obligated under this section to afford the INEC such information as it may require as regards the transferred funds. Of course, this may include the sources of the funds, their legitimacy, the individual or group donors, how much was contributed by each individual or entity, etc.
This therefore will permit the Commission to pierce the veil of the Diasporans’ “crowdfunding”, to determine those actually behind the funds, and determine their legitimacy, or if they contravene the Money Laundering Act and other anti-corruption laws.
Be very sure that the EFCC and ICPC will come snooping around. But, all hope is not lost, as the election expenses to be “incurred by a political party for the management or the conduct of an election shall be determined by the Commission in consultation with the political parties”.
This means that even when such Diasporan funds are paid over to the INEC, the political party can engage it as to its peculiar electoral needs and why it may require the entire funds remitted to it from abroad.
The penalty for violating this section, especially Subsection (3) thereof, which requires a political party to submit to the Commission, its audited returns within six months after an election, is a fine of N1million, and where the return is inaccurate, a court may impose a fine of N200,000 per day until the right thing is done.
One way by which the Diasporans may get round this hurdle is by paying the money directly to the candidate himself, rather than the political party. But, can do this? This is where other obstacles suddenly spring up. Section 88(1) of the Act provides that “election expenses” shall not exceed the sum stipulated in subsections (2)-(7) of the section.
By this provision, the maximum election expenses to be incurred by a candidate at a presidential election shall not exceed N5 billion This is an upward review of the sum of N1 billion allowed under Section 91(1) of the 2010 Electoral Act, as amended.
By simple arithmetical calculation of today’s official exchange rate of N422.176 to one US dollar, the contribution of $150m by Diasporans amounts to N63, 326, 400, 000 only. This is over N58 billion beyond the permissible limit. And if we use the current black market rate of about N700 to one UD dollar, $150m will amount to N105 billion only.
This is N100 billion more than the N5billion permitted by the 2022 Electoral Act. Of more concern is Subsection (8) of Section 88 which provides that “no individual or other entity shall donate to a candidate more than N50, 000,000″.
Section 88 (9) states that a candidate who knowingly acts in contravention of this section, commits an offence and is liable on conviction to a fine of one percent of the amount permitted as the limit of campaign expenditure under this Act or imprisonment for a term not more than 12 months or both.
Also, by subsection (10), any individual who knowingly acts in contravention of Subsection (9) above is liable on conviction to a maximum fine of N500, 000 or imprisonment for a term of nine months or both.
This is not all. By virtue of Subsection (11) of Section 88, any Accountant who falsifies, or conspires or aids a candidate to forge or falsify a document relating to his expenditure at an election or receipt of donation for the election or in any way aids and abets the contravention of the provisions of this section commits an offence and is liable on conviction to a fine of N3,000,000 or imprisonment for a term of three years or both.
Indeed, by virtue of Section 89(7), “any political party that incurs election expenses beyond the set limit commits an offence and is liable on conviction to a fine of N1m and forfeiture to INEC the amount by which the expenses exceed the limit set by INEC.
While Section 90(1) forbids political parties accepting or keeping in its” possession any anonymous monetary or other contribution, gift or property, from any source”,
Section 90(3) is emphatic that no political party shall “accept any monetary contribution which is more than N50m unless it can identify the source of the money or other contribution to the Commission”. My humble understanding of this provision is that a political party can accept more than N50m once it can identify the source of the money. In contributing money, our dear Diasporans must ensure that “no individual or other entity shall donate to a candidate more than N50,000,000”; as contravention leads to a fine upon conviction leads to a “maximum fine of 500,000, or imprisonment to a term of nine months or both”.
Similarly, by virtue of Section 89(7), “any political party that incurs election expenses beyond the limit set in Subsection (2) (of section 89),commits an offence and is liable on conviction to a maximum fine N1m and forfeiture to the Commission, of the amount by which the expenses exceed the limit set by the Commission”.
With these tips, anxious Diasporans who have severally reached me as individuals and groups, for legal guidance and counseling as regards their ability to contribute funds, and the plenitude and amplitude for such contributions, may now know what to do and how to do it. Good luck, all.
God bless my numerous global readers for always keeping faith with the Sunday Sermon on the Mount of the Nigerian Project, by humble me, Chief Mike Ozekhome, SAN, OFR, FCIArb., LL.M, Ph.D, LL.D. kindly, come with me to next week’s exciting dissertation.