The Federal High Court in Umuahia, Abia State, last Friday declared Section 84(12) of the newly amended Electoral Act 2022 as illegal and unconstitutional. What is the implication of the judgment on the electoral process already tailored after the Electoral Act 2022? ADEBISI ONANUGA asks lawyers.
Before last Friday, Section 84 (12) of the recently amended Electoral Act 2021 stated that “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.”
The implication of the act was that except a political office holder or public servant resigned from office three months before the commencement of party primaries, he or she, including ministers, commissioners, or other office holders, was barred from taking part as delegates in primaries of political parties, and therefore cannot be candidate for elections.
According to stakeholders, all political appointees at federal and state levels would not be eligible, either as voting delegates or aspirants during the conventions or congresses of their political parties going by the time table released recently by the Independent National Electoral Commission (INEC).
‘Unconstitutional provision’
But last Friday, a Federal High Court sitting in Umuahia, Abia State, declared section 84(12) of the Act as “unconstitutional, invalid, illegal, null, void and of no effect whatsoever.”
Justice Evelyn Anyadike directed that the section “be struck down as it cannot stand when it is in violation of the clear provisions of the Constitution.”
She ordered the Attorney-General of the Federation (AGF) to “forthwith delete the said sub-section 12 of section 84 from the body of the Electoral Act, 2022”.
The judge while delivering judgment in a suit marked FHC/UM/CS/26/2022 held that Sections 66(1)(f), 107(1)(f), 137(1)(f) and 182(1)(f) of the 1999 Constitution already stipulated that appointees of government seeking to contest elections were only 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 plaintiff, Nduka Edede of the Action Alliance, had approached the court to seek proper interpretation of Section 84(12) of the New Electoral Act, 2022.
Counsel to the Plaintiff, Emeka Ozoani, SAN, while addressing newsmen after court proceedings last Friday, said that the National Assembly should no longer proceed with any amendments to the Act.
He said: “By this judgment, the National Assembly is 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.”
What the 1999 Constitution says
Unlike the amended Electoral Act, Justice Anyadike’s judgment, according to stakeholders, was based on the provisions of the 1999 Constitution, which requires any public office holder to only resign from office 30 days before election to avoid conflict of interest.
This is clearly spelt out section 137(1)(g); section 66(1)(f); section 182(1)(f) and section (107(1)(f) for President, Senate or House of Representatives, Governors and State Assembly respectively.
For the presidential election, Section 137 (1) (g) of the 1999 Constitution (as amended) provides for instance that: “A person shall not be qualified for election to the office of the President if being a person employed in the civil or public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days before the date of the election.”
AGF’s response
Hours after the judgment, the AGF’s office gave the Federal Government’s position through the minister’s Special Assistant on Media and Public Relations, Dr. Umar Jibrilu Gwandu.
Gwandu said the minister would accordingly give effect to the court judgment in line with the dictates of the law and the spirit of the judgment
He further pledged that the judgment would be recognised by 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.”
Senate mum
Senate Committee on Media and Public Affairs, Senator Ajibola Basiru declined comments on the judgment.
He said: “I’m not aware of the suit and whether the National Assembly was a party or was served and/or represented. I have also not seen or read the judgment or whether the National Assembly has been served with the judgment or any order of court.
“I cannot react to newspaper reports of court judgment without seeing the actual court judgment.”
It was however, gathered that the legislative arm has started assembling a team of legal giants to study the judgment and advise it on the next line of action.
Reps awaits CTC of judgment
The House of Representatives explained last Friday that their motive for introducing Section 84(12) which requires political appointees to resign their position before participating in party convention and congresses as delegates to vote and be voted for, was noble and aimed at creating a level playing field for all Nigerians.
It however, said it would await the certified true copy (CTC) of the judgment before making an informed comment on the judgment.
According to House spokesman Benjamin Kalu, the controversial section had nothing to do with public servants referred to in the constitution, but appointees of government at all levels, pointing out that while the constitution referred to civil servants, the Electoral Act deals with politicians and political appointees.
He added: “When we get the CTC, we will like to know who represented us, who served us and all those technicalities. It is important to let Nigerians know the mindset of the legislature, the intention of the legislature while drafting section 84(12) bothers on our intention to have an excellent electoral reform”.
INEC time table for party primaries, elections
Prior to the last judgment, INEC had adjusted the 2023 general election timetable earlier released in 2021. INEC Chairman, Prof. Mahmood Yakubu at a news conference on February 26, in Abuja, said the Presidential and National Assembly elections will hold on February 25, 2023; the Governorship and State Houses of Assembly elections will hold two weeks later on Saturday, March 11, 2023.
Other dates contained in the publication of notice of election include: “Conduct of party primaries, including the resolution of disputes arising from them – Monday, April 4, 2022 to Friday, June 3, 2022.
“Submission of nomination forms to INEC via the online portal for Presidential and National Assembly election – Friday June 10, 2022 to Friday June 17, 2022.
“Submission of nomination forms to INEC via the online nomination portal for Governorship and State Assembly elections – Friday, July 1, 2022 to Friday, July 15, 2022.
“Commencement of Campaigns by political parties for Presidential and National Assembly election – Wednesday, September 28, 2022.
“Commencement of Campaigns by political parties for Governorship and State Assembly elections – Wednesday, October 12, 2022.
“Last day of campaign by political parties for Presidential and National Assembly elections — midnight on Thursday, February 23, 2023.
“Last day of campaign by political parties for Governorship and State Assembly elections — midnight on Thursday, March 9, 2023.”
However, it is not yet clear how the judgment will affect INEC’s time table and the political process.
Lawyers react
Similarly, lawyers who also reacted to the judgment expressed divergent views. They include former Nigerian Bar Association President Dr. Olisa Agbakoba, SAN; Chief Niyi Akintola, SAN, Ebun-Olu Adegboruwa (SAN); Wahab Shittu and Dr Fassy Yusuf.
‘Appeal would resolve questions of jurisdiction, party’
Agbakoba raised two posers, adding that an appellate court could help resolve them.
He said: “The basis of the judgment is not fully understood but as I have not reviewed it, my limited comments would be why was this case given its central importance to the legislative functions of NASS, why was the suit not filed in the home jurisdiction of Abuja, rather than all the way at Umuahia?
“Most importantly, the Supreme Court in Greenvs Green would say that necessary parties must be joined in an action to which a decision taken by such a party is questioned. In that case I wonder why NASS whose legislative power is being questioned, was not party to this suit? I feel an appeal might assist to resolve these matters.
“Personally I feel section 84(4) is questionable but it must be determined by a court of competent jurisdiction with no features inhibiting it’s assumption of jurisdiction.”
Adegboruwa also faulted the judgment, arguing that the Electoral Act being an act of the National Assembly, the lawmakers ought to have been made a party to the suit.
“How can you ‘nullify’ an Act without joining the institution that made the Act, so that they can be heard concerning what they did?” he said.
Adegboruwa hinted at more problems ahead following the decision of the court.
He said: “When a defendant (Federal Government) rejoices over a judgment delivered against it as a party, then you know there is problem in Nigeria.
“Let the National Assembly, the political parties and NGOs appeal against the judgment as interested parties.
“Why do you want to hold on to your office as a political appointee and at the same time be a candidate in an election?”
‘Judgment in order’
On his part, Akintola argued that the judgment was in order.
He said: “The constitution guarantees us the right to vote and be voted for. That aspect of Section 84 which they (NASS) ought to have removed was what the President pointed out.
“They should have known that the section that says that a political appointee should not contest should have been retained as against to vote and be voted for.
“There are millions of Nigerians who are already disenfranchised by the constitution which says that you must have certain qualifications before you can become one thing or the other.
“Some Nigerians are already disenfranchised by that provision. They should have limited it to that level. But to say that somebody cannot vote is where they shot themselves in the foot.
“That is what is wrong with Section 84 that was struck down by the Abia division of Federal High Court, and I am in full agreement with that judgment. You cannot deprive a Nigerian the right to vote.”
‘Sound judgment’
A law lecturer at the University of Lagos (UNILAG), Wahab Shittu, also describing the judgment of the Federal High Court as “sound.”
Shittu said: “The intent of the draftsman running through all the referred constitutional provisions is for all those rendering ‘public service’ to resign 30 days before the date of the scheduled elections. This consistency will not permit discrimination in the case of political appointees who are also rendering public service.
“If this is the position and considering the supremacy of the constitution, which is the grundnorm, the Electoral act – an inferior legislation to the Constitution – cannot legislate otherwise that will be ultra vires to the constitution and therefore void.
”The learned Judge relied on Sections 66(1)(f), 107(1)(f), 137(1)(f) and 182(1)(f) of the Constitution to hold that the section of the Electoral Act which stops political appointees from participating at the primaries as delegates or as aspirants is in conflict with the Constitution.
What does section 66(1)(f) of the Constitution say: “No person shall be qualified for election into the Senate or House of Reps:
(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.”
Public servants vs political appointees
Shittu, also cited provisions of sections 137(1)(g); 66(1)(f); 182(1)(f) and 107(1)(f) which stipulate that anybody in public service either at the federal, state or local government levels must resign, withdraw or retire from such employment 30 days before the date of election.
He noted that the common denominator in the above sections is “public service” and that from public service we have public servants.
“This takes us to the definition of ‘public service’ in the Constitution. This definition will show whether “public service” includes political appointees or whether ‘public servants’ and ‘political appointees’ are one and the same adding that Section 318(1) of the 1999 Constitution is the definition section.
According to him, by virtue of Section 318(1) of the 1999 Constitution, public service of the Federation means the service of the federation in any capacity in respect of the Government of the Federation and includes: Clerk of other staff of the National Assembly or of each House of the National Assembly; Member of staff of the Supreme Court, the Court of Appeal, the Federal High Court, the High Court of the Federal Capital Territory, Abuja, the Sharia Court of Appeal of the Federal Capital Territory, Abuja, the Customary Court of Appeal of the Federal Capital Territory, Abuja or other courts established for the Federation by this Constitution and by an Act of the National Assembly.
They also include members of staff of any commission or authority established for the Federation by this Constitution or by an Act of the National Assembly; Staff of any area Council; Staff of any statutory Corporation established by an Act of the National Assembly; Staff of any educational institution established or financed principally by the Government of the Federation; Staff of any company or enterprise in which the Government of the Federation or its agency owns controlling shares or interest; and members or officers of the armed forces of the Federation or the Nigeria Police Force or other government security agencies established by law.”
The Section also makes similar provisions for public service of the State.
He also noted that the question that naturally arises is whether public service includes political appointees referred to in the judgment?
Shittu said: “There are two perspectives. First are those who contend that public service referred to in the constitution does not include political appointees, placing strict reliance on the letters of the constitution.
“I, however, take a different position. In my view, political appointees also render public service, the type envisaged by the constitution.”
Shittu emphasised that the issues in contention are constitutional in nature. “The fact that the National Assembly was not a party to the suit is immaterial,” he said.
He added that that ultimately, the Supreme Court sitting as a constitutional court, would have to resolve the issue.
‘Judgment won’t affect timetable for election’
According to Shittu, the likelihood that the decision may affect INEC’s time table is not real since INEC is entitled to adjust its programmes in line with constitutional provisions.
He believes the judgment will have a salutary effect on the polity since it has the prospect of widening the political space to accommodate more robust participation in the political process.
‘Judgment good for electoral process’
Dr Yusuf also argued that the decision of the FHC is “good for the electoral process.”
He reasoned that since the judgment is yet to be appealed, “the electoral process should be able to go on seamlessly and if the litigants or the appellants believe that the electoral process may be affected, they can seek for accelerated hearing at the Court of Appeal.
“Otherwise, the judgment of the Federal High Court, Umuahia is good for electoral process, good for democracy, good for rule of law, and good for our constitutional development.”
His view on the judgment’s effect on the INEC time-table aligned with Shittu’s.
Yusuf said: “I don’t see how the judgment will affect the time table released by INEC for the primaries of the political parties and the general election. Rather, it has given political appointees better room to be able to contest, better room to be able to put their house in order before the contest and I think it would rekindle the electoral process.
“INEC will just have to take charge of things and ensure that things are done timeously.”
