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 President Muhammadu Buhari, 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.”
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.
