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The International Journal
of Not-for-Profit Law

Volume 6, Issue 1, September 2003

A publication of the International Center for Not-for-Profit Law

Table of Contents

Letter from the Editor

Religion and NGOs

Introductory Letter from the Guest Editors
W. Cole Durham, Jr. and Elizabeth A. Sewell

A Bend in the Road to Civil Society: The Effect of Russian Anti-Extremism Legislation on Not-for-Profit Organizations
Brian Gross

A Practical Comparison of the Laws of Religion of Colombia and Chile
Scott E. Isaacson

Faith-Based NGOs in Bosnia and Herzegovina
Mojca Leban

Refah Partisi (The Welfare Party) and Others v. Turkey
Christian Moe

The Impact of the New Czech Law on Churches
Petr Pajas

Comments on the 2002 Belarusian Law "On the Introduction of Changes and Amendments to the Law of the Republic of Belarus 'On Religious Freedom and Religious Organizations'"
Melinda R. Porter

Russian Federation Constitutional Court Decisions on Russia's 1997 Law "On Freedom of Conscience and Religious Associations"
Marina Thomas

God and Caesar: Personal Reflections on Politics and Religion
Shirley Williams

Articles

Should Foundations Exist in Perpetuity?
Robert O. Bothwell

The Prohibition of Nigerian Civil Servants From Political Activities: A Necessary Derogation from Freedom of Association
Emeka Iheme

The Charity/Business Duet: Harmony or Discord?
Andrew Phillips (Lord Phillips of Sudbury)

From Benin to Baltimore: Civil Society and Its Limits
Sally J. Scott, Ph.D.

Reviews

Global Civil Society: An Overview
By Lester M. Salamon, S. Wojciech Sokolowski, and Regina List
Reviewed by Jonathan Nelms

The Changing and Unchanging Face of U.S. Civil Society
By Marcella Ridlen Ray

Civil Society: The American Model and Third World Development
By Howard J. Wiarda

Freedom in the World 2003: The Annual Survey of Political Rights and Civil Liberties
By Freedom House

Religion Returns to the Public Square: Faith and Policy in America
Edited by Hugh Heclo and Wilfred M. McClay

The State of Nonprofit America
Edited by Lester M. Salamon

Terrorism and Development: Using Social and Economic Development to Inhibit a Resurgence of Terrorism
By Kim Cragin and Peter Chalk

- - - - - - - - - -

Editorial Board

The Prohibition of Nigerian Civil Servants from Political Activities: A Necessary Derogation from Freedom of Association

By Emeka Iheme*

Historically, the civil service evolved in several advanced societies as a result of the need for a body of officials to implement the ordinances and other decisions of the monarch. Civil servants were chosen on account of their skills and, especially in earlier times, their connections. They usually served for periods that were not merely long but spanned the reigns of two or more monarchs. As absolute monarchies gave way to constitutional monarchies or republican systems, civil servants found new masters in the elected or unelected rulers who come and go with the tide of events, and these masters increasingly found in civil servants an indispensable instrument in the administration of the state.[1]

The civil service in Nigeria was originally established as part of the machinery of the British colonial administration. Even after more than forty years of independence, the ethos and regulations of the service in Nigeria remain substantially patterned after that of Britain.

Following the British tradition, the civil service in Nigeria continues to be characterized more or less by permanence, anonymity and neutrality.[2] Permanence means that civil servants are career officers and can therefore ordinarily expect to remain in the service for their entire working lives while governments come and go. This permanence ensures continuity, a feature that must be especially prized in countries, such as Nigeria, that have experienced a good deal of instability. Anonymity means that civil servants are expected to work behind the scenes; they place their skills and energies at the disposal of their political masters, who make the final decisions and who receive applause for good work and jeers for bad work. Neutrality means that civil servants are prohibited from having political affiliations; they are expected faithfully and impartially to serve any government in power. A classic illustration of this feature of the British civil service is the fact that the service – indeed the very same set of officials – was responsible for the implementation of the nationalization of the iron and steel industry under the Labor Party government of Lord Clement Attlee in 1949 and the subsequent denationalization of the industry under the Conservative Party government of Sir Winston Churchill in 1951, in both cases to the satisfaction of the government of the day.[3]

As to the relationship between the elements of permanence and neutrality, Jerome Udoji, a veteran Nigerian civil servant who rose to the apex of the service, describes political neutrality as “the quid pro quo of the career service.”[4] In other words, the justification for the permanence of their positions is that civil servants should remain politically neutral. The need for this neutrality has been underscored in the editorial comment of the Nigerian newspaper, The Guardian, as follows: “Politicians come and go. But the civil service remains to provide stability. Once a civil servant is a party member, he is partisan. Thus, where civil servants belong to political parties, an acute instability of tenure will arise. A party in power will either plug in its faithfuls or create a regime of favoritism or some other disguised sanctions by which civil servants will be compelled to belong to the ruling party. When the party falls from power, its faithfuls will also see the end of their careers; or, like political prostitutes, decamp en masse to the new party in power.”[5] Indeed, as far back as 1949, the (British) Masterman Committee on the Political Activities of Civil Servants appreciated this problem and rightly stated in its report, “The public interest demands the maintenance of political impartiality in the Civil Service and of confidence in that impartiality as an essential part of the structure of Government.”[6] The Committee went on to warn that “any weakening of the existing tradition of political impartiality would be the first step in the creation of a ‘political’ Civil Service.… Such a system would be contrary to the public interest and, in the long run, the Civil Service itself.”[7]    

In the light of the foregoing, one finds disquieting the ongoing debate in Nigeria about the propriety of prohibiting civil servants from belonging to political parties or otherwise participating in partisan politics, a debate sparked off by the decision of the Supreme Court in Independent National Electoral Commission and the Attorney General of the Federation v. Musa.[8] The issues before the Court turned on the constitutional and statutory requirements for the legal recognition of political parties.

Pursuant to the constitution and the Electoral Act 2001, the Independent National Electoral Commission issued guidelines for the registration of political parties. The plaintiffs, political associations, applied to register as parties, but the Commission judged that they had failed to satisfy some of the requirements and declined to register them. The plaintiffs challenged the registration procedure as contrary to the fundamental human rights provisions of the Constitution of the Federal Republic of Nigeria (1999), which, in section 40, provide: “Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests.” Under section 45, this freedom may be restricted by “any law that is reasonably justifiable in a democratic society a) in the interest of defense, public safety, public order, public morality or public health; or b) for the purpose of protecting the rights and freedom of other persons.”

Although it was not in issue, the plaintiffs argued that even the statutory provision that a civil servant shall not be eligible for membership of a political party is unconstitutional. In his lead judgment, Mr. Justice Ayoola opined as follows:

[T]here is nothing reasonably justifiable in a democratic society in the interest of defense, public safety, public order, public morality or public health in prohibiting a member of the public service or civil service … from eligibility to be registered as a member of a political party. The submission that the restriction is a valid derogation from section 40 by virtue of section 45 (1)(a) of the Constitution was erroneous. However, this conclusion is limited to the question of the validity of [the relevant provision of the Electoral Act] and is not related to any question, not now before this court in these proceedings, of the extent to which the activities, as members of a political party, of [civil servants and other public servants] can validly be restricted by relevant legislation in the interest of the public service. It may well be that the need to ensure objectivity of officers entrusted with the implementation of government programs, continuity of administration and to foster public confidence in and a healthy public perception of the public service are factors that may influence and justify some sort of restrictions. But, as earlier stated, that was not an issue in this appeal.[9]

In his concurring judgment, Mr. Justice Uwais, the Chief Justice of Nigeria, recognized that the civil service rules restrict the participation of civil servants and other public servants in politics and observed that the rules “are not a legislation per se as provided by the Constitution or subsidiary legislation, as they are not made under any enabling Act or Law.”[10] He went on suggest that the limitations violate the constitution:

The provisions of section 40 of the 1999 Constitution are clear. Their import is to allow "every person," including public office holders and civil servants, the freedom to assemble freely and associate with other persons to form or belong to any political party, or trade union or any other association for the protection of his interests. The section has made no exception and there is no proviso therein limiting its application to civil servants or public officers. It is important to mention that the provisions of the [civil service rules] have not been challenged in this case and therefore their validity is not in issue for determination by this court. Reference to the restriction had been made merely in passing by learned counsel….[11]       

The other five justices on the panel agreed with this reasoning.

Thus, as the point was not necessary for resolution of the appeal, the statements of the justices on the constitutionality of prohibiting civil servants and other public servants from belonging to political parties are mere obiter dicta without the force of law. A decision on the point must wait till the morrow. For now, the provisions of the civil service rules remain valid. The ruling, however, provoked considerable confusion in Nigeria. The cause may be the above-quoted part of the judgment of Mr. Justice Ayoola, in which he stated that the restriction is not a valid derogation from section 40 by virtue of section 45(1)(a).

Mr. Justice Ayoola's conclusion on this point, it is respectfully submitted, is erroneous. On the above-quoted part of the judgment of Mr. Justice Uwais, it is further submitted, respectfully, that in view of the provisions of section 45(1), section 40 itself need not contain any exception or proviso in order for the court to uphold a valid derogation from the right conferred under section 40.     

There is nothing new or unique about circumscribing the freedom of association of individuals in certain types of employment, and this practice finds support both in the tried and tested principles of public administration and in the principles of international human rights law. Even in international human rights instruments, the recognition of freedom of association is invariably accompanied by a proviso for cases of necessary derogation. The European Human Rights Convention is illustrative. In its Article 11, the Convention recognizes “the right to freedom of peaceful assembly and to freedom of association with others,” and a proviso permits the introduction of “lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the state.” In Britain, the Human Rights Act 1998, which domesticated the Convention, preserves the right of the state to enact laws derogating from this right in the permitted circumstances. The case for upholding the political neutrality of civil servants seems to be quite strong.

The Nigerian Labor Congress (NLC), the sole umbrella body of the unions of junior staff in Nigeria, holds a different view. In a statement signed by its Head of Information, Mr. Owei Lakemfa,[12] the NLC lauded what it understood as the Supreme Court judgment: “Civil servants are first citizens with basic rights before they are workers, so they have the fundamental right to belong to associations including political parties of their choice.” The statement further queried: “If an employer can form or belong to a political party of his choice, why not the employee? Why is it only the employer or jobless that can vote or be voted for while the civil servant can only vote but not be voted for?”

The NLC’s statement demonstrates a failure to distinguish between various categories of workers, especially between (a) civil servants and other public servants, and (b) public sector workers and workers employed outside the public sector. It may be that the case for the restriction of the political activities of civil servants, judicial officers, and members of the armed forces and police is much more compelling than that in respect of, for instance, the employees of a government-owned trading company. There is no general restriction on the right of non-public sector employees to belong to political parties, although there may in some instances be restrictions under particular contracts of service. In respect of civil servants, at least, the simple answer to the NLC is that the need for continuity in the administration of the state necessarily demands a politically neutral career civil service, and, as Colin Padfield points out, “Entry to the civil service is a voluntary act, and those who cannot accept its conditions, particularly its neutrality in politics, can seek employment elsewhere.”[13] Although the service offers a career until retirement, a civil servant who is bent on getting involved in politics retains the right to resign and go on to pursue his political ambition.  

An entirely different scenario is seen in socialist systems: the civil service is incorporated into the ruling revolutionary party, and there is hardly any distinction between a civil servant and any other state or party functionary. This is clearly impracticable in a multi-party system, a very common feature of the open society. Typically, in the one-party socialist state of Tanzania, civil servants as well as members of the armed forces and other public servants were required to be members of the ruling party, the Chama Cha Mapinduzi, and one of the laudable moves made (in February 1992) as part of the process of transition to a multi-party democratic system was disbanding the branches of the ruling party in the armed forces, the civil service, and other public institutions. The depoliticization of the civil service was, thus, rightly accepted as one of the important ways of creating a level playing field for competition between the political parties and for ensuring that a crop of career officers will maintain continuity in the administration of the state.

In light of the concerns about a politicized civil service since the judgment of the Nigerian Supreme Court, the Head of the Civil Service of the Federation sought the advice of the Attorney General of the Federation.[14] In a well-reasoned response,[15] the Attorney General stated that the Court had not decided that civil servants could belong to political parties. Following this explanation, one expects that political neutrality – at least in the federal civil service – will be maintained unless and until it is specifically challenged in court and the court decides otherwise.   

Notes   

* Emeka Iheme (emekaiheme@yahoo.com) is Executive Director of the Libertarian Institute of Nigeria and an Associate Editor for IJNL.

[1] This general pattern of evolution reflects the nature of a nonpolitical civil service in most Western countries. A notable exception is France, where many civil servants are openly affiliated with political parties. An entirely different pattern is seen in socialist systems, as will be discussed below.

[2] For a concise explanation of the British tradition, see Colin Padfield, British Constitution Made Simple (London: W.H. Allen, 1977), pp.145-147. For useful appraisals of the extent to which this tradition has been upheld in Nigeria, see Ladipo Adamolekun, Politics and Administration in Nigeria (Ibadan, Nigeria: Spectrum Books Limited, 1986) and Jerome Udoji, Under Three Masters: Memoirs of an African Administrator (Ibadan, Nigeria: Spectrum Books Limited, 1995).

[3] See Colin Padfield, ibid. p. 146

[4] Jerome Udoji, op. cit. p.47 Udoji began his career as a clerk. After obtaining the B.A and LL.B. degrees from Cambridge, he returned to the colonial civil service. At independence in 1960, he had risen to become the Secretary to the Government and Head of the Civil Service of Eastern Region of Nigeria. After his retirement, he worked for the Ford Foundation on the development of the public service in the emergent states of Africa.

[5] The Guardian, February 17, 2003

[6] Quoted in Padfield, op. cit., p. 150

[7] Ibid. p. 151. Padfield also explains, “The broad position is that industrial staff and the minor grades of the clerical class (numbering about 60 per cent of the service) are not restricted at all politically; they may stand for Parliament and represent a political party. Any such candidate must resign his appointment before nomination day on the understanding that if not elected he will be reinstated in his previous capacity within a week of the declaration of the election result. This group was categorized as ‘below the line.’ Members of the Executive and Administrative classes are not allowed to participate in national politics at all. They must abstain from party office, speeches, canvassing and public manifestations of views that might associate them with a political organization or political controversy.” Ibid. p. 150. I am indebted to Christopher Trueman (ctrueman@wsgfl.org.uk) for very kindly verifying that this is still the practice in Britain. In Nigeria, however, civil servants of all cadres are banned from belonging to political parties or otherwise participating in partisan politics.

[8] [2003] 3 NWLR (Part 806) 72. When this case came up for judgment on November 8, 2002, the Supreme Court stated that “since it is likely that local government elections, which the Plaintiffs’ associations if successful in this case, would like to contest [may come up soon], it is necessary to give our judgment today and reserve the reasons for the judgment till 24th January, 2003.” The Court then went on to read out its orders without the usual detailed speeches. As scheduled, the detailed judgment was delivered on January 24, 2003.

[9] At pp. 161-62.

[10] At p. 166.

[11] Ibid.

[12] See Thisday (newspaper), February 2, 2003.

[13] Padfield, op.cit, p. 151

[14] See The Guardian, February 1, 2003

[15] See Thisday, February 8, 2003

 

 
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