This is why Section 84 of the Electoral Act 2022 is raising eyebrows

On March 1, 2022, President Muhammadu Buhari reminded the National Assembly to rework a clause in the Electoral Act 2022 that bars appointees from voting or being voted for at party conventions and congresses.

The President’s reminder was contained in his request asking the Senate to amend the Electoral Act which he assented to. The lawmakers passed the reworked Electoral Act Amended Bill on January 25 and forward it for the President’s assent on January 30.

Buhari’s request contained in a memo dated February 28, was read on the floor during plenary yesterday by Senate President Ahmad Lawan.

In the letter, the President drew the Senate’s attention to the provisions of Section 84(12), which, according to him, constitutes a “defect” that is in conflict with extant Constitutional provisions.

According to him, Section 84(12) of the Act constitutes a disenfranchisement of serving political office holders from voting or being 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 election.

“The practical application of section 84(12) of the Electoral Bill, 2022 will, if assented to, by operation of law, subject serving political office holders to inhibitions and restrictions referred to under section 40 and 42 of the 1999 Constitution as amended.

“It is imperative to note that the only constitutional expectation placed on serving political office holders that qualify, by extension as public officers within the context of the constitution is resignation, withdrawal or retirement at least 30 days before the date of the election.

“Hence, it will be stretching things beyond the constitutional limit to import extraneous restriction into the constitution on account of the practical application of section 84(12) of the bill where political parties’ conventions and congresses were to hold earlier than 30 days to the election.

Daily Trust reports that at least four ministers and a number of personalities heading Ministries, Departments and Agencies (MDAs) may be affected by the provisions of Section 84.

Among them are Rotimi Amaechi, Minister of Transportation; Chris Ngige, Minister of Labour and Productivity; and Babatunde Fashola, Minister of Works and housing.

So, on Friday, March 18, the Federal High Court in Umuahia, Abia, ordered the Attorney General of the Federation and Minister of Justice, Abubakar Malami, to delete the contentious Section 84 from the amended Electoral Act which was recently signed by President Buhari.

While giving her ruling, the presiding judge, Justice Evelyn Anyadike, ordered Malami to delete Section 84(12) from the amended Electoral Act without delay.

Before then, a Federal High Court in Abuja restrained the national assembly from taking any further step regarding section 84(12) of the newly amended electoral act.

Inyang Ekwo, the presiding judge, gave the order while delivering ruling in an ex parte application brought by the Peoples Democratic Party (PDP), challenging the legality of the national assembly to amend a bill already signed into law by the president.

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Guardian Nigeria reports that Lagos based lawyer, Bar Chris Okeke said, “Firstly, it did not tell us who the claimant is, what capacity he is suing and his relationship with the suit and the subject of the suit. This is very important to deal with the doctrine of locus standi.

“Secondly, there is something not adding up about the parties. The clear and unmistakable impression the judgment creates is that the Attorney General of the Federation (AGF) is desperate to exercise powers he obviously knows he does not have; supplanting and usurping law-making powers.”

Senior Advocate of Nigeria and human rights advocate, Femi Falana, faulted the decision of the court saying, “the learned trial judge fell into a great error.”

“No doubt, the Judge would have dismissed the case if his attention had been drawn to the cases of DADA v. ADEYEYE (2005) 6 NWLR (Pt. 920) 1 at 19 ASOGWA v. CHUKWU (2003) 4 NWLR (Pt. 811) 540 OJONYE V. ONU & ORS (2018) LPELR-44223) where the appellate Courts have held that political appointees or political office holders are not public servants as provided for under the Constitution,” Falana stated.

Senior Advocates of Nigeria, Ebun-Olu Adegboruwa argued that the Electoral Act “is an Act of the National Assembly. How can you nullify an Act without joining the institution that made the Act, so that they can be heard concerning what they did?

“When a defendant (federal government) rejoices over a judgment delivered against it as a party, then you know there is a problem in Nigeria. Let the National Assembly, the political parties and NGOs appeal against the judgment as interested parties.”

Hours after the judgment, asking that the section be deleted, 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.

“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.”

Section 84(12) of the Electoral Act 2022

Section 84 (12) of the recently amended Electoral Act 2021 states 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.”

An interpretation of that provision is that an appointee of the Executive should not, and must not, be a delegate in primary elections while still in office, just as an appointee must not be contesting as a delegate while still in office at the Convention or Congress of any political party.

Section 84(12) of the Electoral Act derives its validity from the Constitution and same does not contravene the provision of the Constitution, Thisday reports.

By the provision of Section 228 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the National Assembly has the power to provide guidelines and rules to ensure internal democracy within political parties, including making laws for the conduct of the party primaries, party congresses and party convention.

Suffices to also note that varying provisions of the Constitution provide for the disqualification of persons from vying for the post of 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, thirty days before the date of the election. See Section 66(1),(f) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). See also Section 107(1), (f) of the Constitution* with respect to disqualification of a public servant from vying for the position of member of House of Assembly.

It is also instructive to note that a public servant is also disqualified from contesting the position of President, Vice President, Governor and Deputy Governor respectively if same has not resigned from that position within a period of 30 days before the date of the election. See Section 137(1)(g), 182(1)(g) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

From the National Assembly

Lawmakers in the Senate and House of Representatives have resolved to appeal the judgement which directed the Attorney General of the Federation (AGF) to delete Section 84(12) of the newly signed Electoral Act.

This followed a deliberation on the court order during Wednesday’s plenary in both chambers of the National Assembly in Abuja.

The lawmakers, in their resolution, agreed to appeal the judgement in a suit marked FHC/MU/SC/26/2022 to set aside the decision of the court.

For members in the lower chamber, the clause in question is directed at political appointees, not civil servants.

They insisted that the court passed a judgement on a matter which was not included in the Electoral Act passed by the National Assembly.

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