Electoral Act: Malami, Amaechi, Ngige may contest primaries while holding office

Barely nine days after the Senate refused to remove Section 84(10) of the Electoral Act, a Federal High Court in Umuahia on Friday, annulled the section, insisting that it was at variance with the provisions of the Nigerian Constitution.

This effectively allows serving ministers and aides to the President, Major General Muhammadu Buhari (retd.), serving state commissioners to contest at the governorship, Presidential and senatorial primaries without resigning from their offices.

Some of the President’s ministers who are said to be planning to run for different offices include the Attorney-General of the Federation, Abubakar Malami, who is said to be eyeing the Kebbi State governorship seat; the Minister of Aviation, Hadi Sirika, who is believed to be planning to contest the governorship of Katsina State; the Minister of Transportation, Rotimi Amaechi, who is rumoured to be eyeing the Presidency.

Others who are said to have political ambitions include the Minister of Labour and Employment, Senator Chris Ngige; the Minister of State for Education, Chukwuemeka Nwajiuba; and a few others.

 Already, some governors had issued circulars calling on their appointees who had political ambitions to resign before March 30 in accordance with the now deleted Section 84(10) of the Act. The Act reads, “No political appointee at any level shall be a voting delegate or be voted for at the convention or congress of any political party for the purpose of the nomination of candidates for any election.”

With the deletion of this section, ministers, commissioners and aides to governors will now be able to contest while retaining their positions.

On Wednesday, Malami had revealed that options were being explored by the Federal Government on the controversial section. Though he had yet to openly declare his interest to run for any elective office, Malami had also said on Thursday that he would not resign from office.

Unknown to the public, a member of Action Alliance, Nduka Edede, had filed a suit before the Federal High Court in Umuahia, challenging the section. In the suit marked FHC/UM/CS/26/2022, the plaintiff asked the court to determine if the section in question was legal and to strike it out if it was at variance with the constitution.

The AGF, who was a defendant in the case, did not oppose the suit but agreed with the applicant.

 Delivering judgement barely days after the suit was instituted, Justice Evelyn Anyadike ruled that the section was “unconstitutional, invalid, illegal, null, void and of no effect whatsoever”, hence the need to be struck off as it cannot stand when “as it is in violation of the clear provisions of the constitution.”

 The court held that according to Sections 66(1)(f), 107(1)(f), 137(1)(f) and 182(1)(f) of the 1999 Constitution, appointees of government seeking to contest elections will have to resign at least 30 days to the date of the election and that any other law that mandated such appointees to resign or leave office at any time before that was unconstitutional, invalid, illegal null and void to the extent of its inconsistency to the clear provisions of the constitution.

The counsel to the plaintiff, Emeka Ozoani (SAN), told newsmen afterwards that by the judgment, the National Assembly was not required to further make any amendments to the section “as the import of this judgment is that Section 84(12) of the Electoral Act is no longer in existence or part of the Electoral Act.”

On why the matter was filed in Umuahia secretly, the plaintiff counsel said the court was a public place.

The Judge had also ordered the Attorney General of the Federation to forthwith delete the said Subsection 12 of Section 84 from the body of the Electoral Act, 2022.

The AGF’s lawyer hailed the judgement while addressing journalists, adding that the National Assembly had no business introducing that section in the first place.

Buhari had while signing the amended Electoral Act urged the National Assembly to delete Section 84(12) as it violates the Constitution of the country and also breached the rights of government appointees.

The President had written a letter to the National Assembly seeking amendment by way of deleting the provision an amendment the Senate rejected in plenary. However, the Senate refused to delete the provision.

When contacted, the Spokesman for the Senate, Ajibola Basiru, said the Senate had not received the judgement and hence could not comment on it.

“I am not aware of the suit and whether the National Assembly was a part or was served or represented. I have also not seen or read the judgment. I cannot react to newspaper reports of a court judgment without seeing the actual court judgment,” he said.

On the reaction from the office of the Attorney General on immediate implementation of the judgement, the Senate spokesman said, “The questions Nigerian may ask the Attorney General of the Federation are: Has his office being served with an enrolled order of the Federal High Court reportedly delivered in Umuahia today or he is relying on media reports?

“Has the Honorable Attorney General foreclosed right of appeal of the defendants or any interested party? Will this be standard practice from his office henceforth in promptly abiding by courts of first instance without exploring right of appeal? Could this promptitude be possibly attributed to some rumoured self-interest?”

Also, the Chairman of the House Committee on Media and Public Affairs, Benjamin Kalu, denied the knowledge of the case.

 In a voice note sent to journalists in Abuja on Friday, Kalu said, “The House of Representatives is not aware of this legal matter, whether we were necessary party or not. It is important to note that it is out of place to comment on a judgment we have yet to see the copy. So, we will make comment on it once we receive the certified true copy.

“We have read from the media that the judgment bothers on Section 84(12) of the Electoral Act which was signed into law by Mr President recently. It is important to let Nigerians know the mindset of the legislature – the intentions – while drafting the 84(12) Section.

“As you know, for electoral reform to be efficient, it has to be transparent and accountable and inclusive as possible, and it has to be fair for it to be credible. If any of these ingredients is missing towards achieving a credible election, it affects the whole picture. That was why we wanted to address the conduct of appointed officers – political office holders – who are used as tools during conventions and congresses.

“It is important that process is considered to enable us to have a credible process that will be above board. Many have argued that it offends the provisions of the Constitution with regards to (Section) 66 and a couple of other provisions that border on how a person qualifies or is disqualified for election and the notice of 30 days before the election. That is for public servants; we are talking about political appointees. And Section 318 defines who a public servant is and it doesn’t include appointees.

“So, the ability to differentiate the two will help us understand what the Electoral Act is trying to do, as against what is being believed that it is offensive to the Constitution. When we get the judgment, we will know whether that differentiation was clear or not. Electoral Act addresses political appointee, the Constitution addresses public servants.”

Lawyers react

In his reaction, Mr Ahmed Raji (SAN), said the 30-day notice enshrined in the constitution was only for public servants and does not affect political appointees.

According to him, the Electoral Act referred to political appointees who are not direct employees of the government.

“The one with 30 days which Nigeria’s constitution is talking about refers to civil servants and others in the government’s employ. The Electoral Act is referring to political appointees, like ministers, special advisers, personal assistants, others. These ones are not in employment with the government.

“It (the Act) does not even spell out ‘six months. What it says is, ‘Resign your appointment before you can go for primaries either as a delegate or as an aspirant.’ Since primaries will start six months before the election, that boils down to that (clause of six months).

“It doesn’t say six months (explicitly). If primaries can be conducted three months before the election, it is all well and good. We are talking of two different scenarios. One is talking of civil servants and public servants (people in employment), and it states clearly that, 30 days before the election, you must quit!”

He however advised that anyone who was not comfortable with the ruling of the High Court in Umuahia could show interest and appeal the judgment.

The senior advocate also wondered how the court delivered judgement so quickly.

“Anybody who is interested in the ruling can appeal it. You have to show your interest. Any of the defendants in the case can appeal it. I do not have the facts of the case, and until I read the judgment, I would not be able to clearly say what the judge is saying. When was this Electoral Act signed? That was a few weeks ago. How come a case was filed and judgment was given very early?” he pondered.

Also reacting, the National Publicity Secretary of the Nigerian Bar Association, Dr Rapulu Nduka, said not all laws must favour everyone.

He said it was unfortunate that the Electoral Act was still a subject of controversy ahead of the crucial elections ahead.

Nduka added, “It doesn’t feel too good that all times there must be a back-and-forth over these issues. I don’t think it feels right that they must change every law to suit different people.

“Elections are not too far away again. By now, we should be certain about what the Act says and begin to abide by them. It won’t speak well that some months to this election, they are still battling with these judgments.”

He, however, said that with regards to the court judgment, the constitution is very clear on the eligibility to contest political office.

“The truth of the matter is that anything that is not in consonance with the constitution is unconstitutional and is declared void. Until that aspect is dealt with (amended), our hands are tied, because the act must be in line with the constitution,” Nduka stated.

Another senior advocate and a human rights lawyer, Femi Falana, faulted the judgement, adding that the annulled section relied on referred to persons employed in the public service of either the federal or state governments.

Falana said by virtue of Section 318 of the Constitution, political appointees were not included in the list of persons employed in the public service and as such Section 84 (12) of the Electoral Act was annulled on faulty ground.

He added, “With respect, the learned trial judge fell into a great error. Sections 66 (1) (f), 107(1) (f),137 (1) (f) and 182 (1) (f) of the Constitution relied upon by his lordship require persons employed in the public service of either the Federal Government or state governments.

“Specifically, each of the aforesaid sections provides that “No person shall be qualified for election into the Senate or House of Reps if: (f) he is a person employed in the public service of the Federation or of any State and has not resigned, withdrawn or retired from such employment 30 days before the date of election.”

 FG’ll implement the judgement immediately – AGF Office

Meanwhile, the Office of the AGF says it will accordingly give effect to the court judgment in line with the dictates of the law and the spirit of the judgment.

In a statement by the Spokesman for the AGF, Umar Gwandu, the chief law officer said the judgment would be recognised by the government printers in printing the Electoral Act.

“The Act will be gazetted factoring the effect of the judgment into consideration and deleting the constitutionally offensive provision accordingly. The provision of Section 84(12) of the Electoral Act 2022 is not part of our law and will be so treated accordingly.

“This is in line with the dictates of chapter 7, Part 4, Section 287 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) on enforcement of decisions that makes it a point of duty and obligation on all authorities and persons to have the judgment of the Federal High Court, among others, to be enforced,” the statement read.

 Also reacting, Mr Robert Emukpoeruo, SAN, who was a member of the technical committee that drafted the  Electoral Act, said, “For me, it is a very odd judgment in which the AGF is the defendant. We don’t even know who the plaintiff is. What do you expect the Attorney General of the Federation to do? What do you expect him to come to court to say?

“He did not oppose the case; he supported it. He was almost sounding like it was an ‘arrangee’ case. Mr (Abubakar) Malami has invested interest in having that section removed. That is what he is expected to do in that situation. The National Assembly is not even a party to the suit. They would have to seek to appeal as a personal interest in the case.”

According to him, before one says a section of the constitution is inconsistent, one has to be sure there is a position that deals with it in that constitution.

Speaking further, he said, “The position of the constitution that talks about resigning 30 days before the General Elections, deals with elections, not congresses, and secondly, it is limited to public servants employed in the government.

“There are Supreme Court cases that have defined this ‘public servants’ to mean civil servants. Political appointees are not civil servants. There is something highly undesirable in this thing. People are not looking at the tactical cause of this thing. For example, if the Minister of Justice wants to go into politics, he will abandon everything in that office to pursue his political agenda. So, that office would just be lying fallow there while he is pursuing to be a candidate and win the election. That is the mischief that issue that brought to light those provisions. If you want to go into politics leave your office and go face your political ambition full time.”

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