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When President Muhammadu Buhari signed the newly amended Electoral Act on February 25, 2022, many Nigerians heaved a sigh of relief. This was because signing the Act had dragged for so long to the dismay of Nigerians who desired to have an effective law that will guide the conduct of the 2023 elections. Unfortunately, controversy trailing this new law appears unending.
The current controversy started soon after President Buhari signed the law and asked the National Assembly to delete Section 84(12) of the Act. His complaint is that the section precludes serving political appointees from exercising their right either to vote or be voted for at party conventions or congresses for the purpose of nomination of candidates for elections especially if such conventions hold earlier than 30 days to the national election. On March 9, 2022, the Senate overwhelmingly rejected the President’s request to delete this clause.
Section 84(12) stipulates 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.” If any political appointee desires to participate as a delegate or candidate for elections, he or she is expected to have resigned at least three months to the date of the party primaries. The lawmakers in putting this section envisage that there should be a level playing ground for candidates contesting for any election.
That was why the Peoples Democratic Party (PDP) obtained a restraining order from Justice Inyang Ekwo of the Federal High Court in Abuja barring the Attorney General of the Federation (AGF), the President, the National Assembly and others from tampering with the controversial section. There was another case on the same matter in Ibadan, Oyo State, instituted by Chief Oyewole Bolanle. But the judge in Ibadan declined jurisdiction.
Despite the earlier cases in Abuja and Ibadan, a certain Nduka Edede of the Action Alliance (one of the political parties in Nigeria) went to the Federal High Court in Umuahia, Abia State, to seek proper interpretation of the controversial section.
On March 18, 2022, Justice Evelyn Anyadike ruled that the contentious section was unconstitutional, invalid, illegal, null, void and of no effect whatsoever. In arriving at her judgment, Justice Anyadike relied on Sections 66(1)(f), 107(1)(f) 137(1)(g) and 182(1)(f) of the 1999 Constitution. These sections, she noted, already stipulated that government appointees seeking to contest elections should resign at least 30 days to the date of the election.
Section 66(1)(f), for instance, says that “no person shall be qualified for election into the Senate or House of Reps if 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.” The same thing goes for those contesting for president, governors and state assemblies. Justice Anyadike, therefore, ordered the AGF to delete the controversial section from the Electoral Act. The National Assembly has resolved to appeal the Umuahia judgment. It contends that Section 84(12) of the Electoral Act is targeted at political appointees, not public servants. It also considers it abnormal that the judge heard the case even when it was not joined as a respondent.
One of the major contentious issues here is the interpretation of the phrase, ‘public servant’. Some legal experts believe that ‘public servant’ encompasses both civil servants and political appointees. This school of thought is of the opinion that whether appointed or employed, both civil servants and political appointees render public service. The other school of thought contends that there is a remarkable difference between public servants as stipulated in the constitution and political appointees. They believe the 1999 constitution only addressed public servants who are strictly employed in the public service and not political appointees like ministers, commissioners, special advisers or assistants, heads of departments and agencies of government.
Many other issues need to be resolved in this case. For instance, is the Federal High Court Umuahia not aware that the matter is already before a court of coordinate jurisdiction in Abuja? Why didn’t AGF, who is the sole defendant in the matter, inform the court in Umuahia about a similar case in Abuja? And does the AGF have the power to delete a section of an Act of parliament without recourse to the National Assembly? The manner the AGF, Mr. Abubakar Malami, has handled this case so far gives room for suspicion. He was quick to accept the judgment of Justice Anyadike and gleefully announced that “the Act will be gazetted factoring the effect of the judgment into consideration and deleting the constitutionally offensive provision accordingly.” What is Malami’s interest?
We urge the National Assembly and other interested parties to pursue this matter to its logical conclusion. It will further strengthen our judicial system. We should not encourage a system where anybody, if not comfortable with any section of the law, will run to court to ask for deletion of that law. We can’t just repudiate that section of the electoral law because of selfishness of some people. We must be careful of the precedence we are setting.
