The type of respect or love the Attorney-General of the Federation (AGF) and Minister of Justice, Abubakar Malami, SAN, has for the recent judgement of a Federal High Court in Umuahia is akin to the one-million-man prayer rally held last Thursday in Abuja by some northern pastors for Bola Ahmed Tinubu. These prayer warriors believe that the former Lagos State governor is best suited to be the next President of Nigeria. Malami believes that deleting Section 84(12) of the amended Electoral Act is almost the best thing to happen to the Nigerian judicial system in recent time. Though great on the face of it, these actions appear highly suspicious and self-serving.
By the way, Section 84(12) stipulates that “no political appointee at any level shall be 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.”
What this means is that political office-holders such as ministers, commissioners and other appointees must resign from office three months before the commencement of party primaries, if they must participate as delegates or candidates for elections. The intention of this law is to give everybody equal opportunity and a level playing field in the process of electing candidates for elections. The fear is that, if political appointees are not checkmated this way, they will use their paraphernalia of office to muscle their way through such elections.
Those who argue to the contrary say there is already a constitutional provision regarding the participation of political office-holders in party conventions. The Constitution, they say, stipulates 30 days for the political office-holders to resign. In their estimation, Section 84(12) runs contrary to the Constitution and should be deleted.
This is the argument deployed at the Federal High Court in Umuahia, Abia State, recently. The plaintiff is one Nduka Edede of the Action Alliance. He had approached the court to seek proper interpretation of the controversial section of the amended Electoral Act, 2022.
Penultimate Friday, March 18, Justice Evelyn Anyadike ordered the AGF to delete that controversial section from the Electoral Act. According to her, the section is unconstitutional, invalid, illegal, null, void and of no effect whatsoever. The judge held that sections 66(1)(f), 107(1)(f), 137(1)(g) and 182(1)(f) of the 1999 Constitution already stipulated that government appointees seeking to contest elections should resign at least 30 days to the date of the election.
Specifically, Section 66(1)(f) states that “No person shall be qualified for election into the Senate or House of Representatives 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.” Sections 137(1)(g), 182(1)(f) and 107(1)(f) make the same provision for Presidents, governors and state assembly members, respectively.
Immediately the judge in Umuahia pronounced that Section 84(12) should be deleted from the amended and newly signed Electoral Act, Malami swiftly announced that he would obey the order of the court.
“The Act will be gazetted, factoring the effect of the judgment into consideration and deleting the constitutionally offensive provision accordingly,” he enthused.
Recall that President Muhammadu Buhari had similarly urged the National Assembly to delete that section when he signed the Electoral Act last February. According to the President, it would be denying serving political appointees their right to vote or be voted for at conventions or congresses of any political party for the purpose of the nomination of candidates for any election in cases where it holds earlier than 30 days to the national election. The President followed up with a letter to the National Assembly to delete the controversial clause. The Senate overwhelmingly rejected the President’s request on March 9, 2022.
No doubt, the President acts on the advice of his Attorney-General. Malami’s actions so far have also made it obvious that he wholly supports removal of Section 84(12) from the Act. He appears to have a vested interest in the whole matter. Is he interested in becoming the governor of his state as speculated? Let’s wait and see.
It is good that the National Assembly has resolved to appeal the judgement. Members of the House of Representatives in particular believe the controversial clause is directed at political appointees, not civil servants. Describing the action of the judge as an aberration, the Reps questioned why the National Assembly was not joined as a respondent to the suit.
Human rights lawyer, Ebun-Olu Adegboruwa, SAN, agrees with them. He prayed that the judiciary should not destroy Nigeria in our lifetime. Wondering how a court could nullify an Act of the National Assembly without joining the institution that made the Act, Adegboruwa quipped: “When a defendant (FG) rejoices over a judgement delivered against it as a party, then you know there is a problem in Nigeria.”
Incidentally, many senior lawyers hold divergent views on this matter. Some have argued that political appointees are also public servants because they also render public service. But the majority of the lawyers believe that Section 318(1) of the 1999 Constitution, which the court relied on to order the removal of the controversial clause, deals only with public servants, not political appointees.
Lagos-based lawyer, Jiti Ogunye, explains that career public servants are those employed in the public service and whose employments are pensionable, who may retire, withdraw their services or resign. On the other hand, political appointees, he argues, comprise government ministers, commissioners, heads of departments and agencies of government, and special and personal advisers and assistants. These officers, he notes, do not retire from appointments though they may retire from politics.
There are many other contentious issues in this case. For instance, although Section 6 of the 1999 Constitution empowers superior courts to declare an Act of the National Assembly that is in conflict with the Constitution null and void, does the court have the powers to order anybody outside the legislative arm to delete any section of the Constitution? Is it right for the court to review the matter in the first place when the amended Electoral Act is yet to be published in an Official Gazette of the Federal Government of Nigeria?
In my layman’s view, the actions of the AGF with regard to this controversial section are suspicious. The speed with which the court delivered the judgment (within one week or so) and the swiftness of the AGF in announcing that he would implement the judgement are amazing. The case should go the whole hog. The onus is on the Supreme Court to resolve this issue at the appropriate time.
