Femi Falana, Human rights activist and Senior Advocate of Nigeria (SAN) [Photo: Channels TV].

Some legal practitioners have faulted the ruling of a federal high court sitting in Umuahia, the Abia State capital, ordering the deletion of Section 84 (12) from the electoral act 2022.

Justice Evelyn Anyadike had on Friday ruled that the section which prohibits political appointees at all levels from participating during party primaries and congresses for the purpose of nominating candidates for any election be deleted for running at variance with the Nigerian Constitution.

The judge held that there was already a provision in the Nigerian Constitution (Section 318) which mandates anyone seeking elective positions to resign 30 days to the exercise and as such Section 84 (12) of the electoral act which indirectly stipulates the resignation of six months (or whenever a party primary is to be held) be removed from the legislation.

The court verdict came barely two days after Attorney General of the Federation (AGF) Abubakar Malami hinted that the executive might be left with the option of seeking redress in court after the Nigerian Senate threw out the request of President Muhammadu Buhari for the amendment of the controversial part.

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Unknown to the public, Nduka Edede, a lawyer and top member of Action Alliance (AA) had approached the court seeking the expungement of the section, with Mr Malami as the sole defendant who did not oppose the prayers of the applicant.

Hours after judgment was delivered, Mr Malami announced the speedy implementation of the court order, citing constitutional provisions, an action which runs in sharp contrast with the Buhari administration’s reputation for scant regard for court decisions.

The Minister of Justice and other appointees are rumored to be nursing various political ambitions as the general election next year draws near. The controversial section, if not deleted, disqualifies them from achieving their goals, hence the need to ensure immediate enforcement.

Lawyers react

Faulting the trial judge, lawyers argued that the annulled section refered to political appointees and not persons employed in the public service of either the federal or state governments.

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“The position of the constitution that talks about resigning 30 days before the General Elections, deals with elections, not congresses, and secondly, it is limited to public servants employed in the government,” Mr Robert Emukpoeruo, SAN, a member of the technical committee that drafted the Electoral Act was quoted by Punch Newspaper to have said.

“There are Supreme Court cases that have defined this ‘public servants’ to mean civil servants. Political appointees are not civil servants. There is something highly undesirable in this thing. People are not looking at the tactical cause of this thing. For example, if the Minister of Justice wants to go into politics, he will abandon everything in that office to pursue his political agenda. So, that office would just be lying fallow there while he is pursuing to be a candidate and win the election. That is the mischief that issue that brought to light those provisions. If you want to go into politics leave your office and go face your political ambition full time,” he added.

Mr Emukpoeruo also cited the speedy implementation of the court verdict, alleging interests at play.

“For me, it is a very odd judgment in which the AGF is the defendant. We don’t even know who the plaintiff is. What do you expect the Attorney General of the Federation to do? What do you expect him to come to court to say?” he queried.

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“He did not oppose the case; he supported it. He was almost sounding like it was an ‘arrangee’ case. Mr (Abubakar) Malami has invested interest in having that section removed. That is what he is expected to do in that situation. The National Assembly is not even a party to the suit. They would have to seek to appeal as a personal interest in the case.”

Aligning with the above submission is Human Rights Lawyer, Femi Falana (SAN) who said that by virtue of Section 318 of the Constitution, political appointees were not included in the list of persons employed in the public service and as such Section 84 (12) of the Electoral Act was annulled on faulty ground.

“With respect, the learned trial judge fell into a great error. Sections 66 (1) (f), 107(1) (f),137 (1) (f) and 182 (1) (f) of the Constitution relied upon by his lordship require persons employed in the public service of either the Federal Government or state governments,” Mr Falana submitted.

“Specifically, each of the aforesaid sections provides that “No person shall be qualified for election into the Senate or House of Reps if: (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.”

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In his reaction, Mr Ahmed Raji (SAN), said the 30-day notice enshrined in the constitution was only for public servants, explaining that political appointees are not direct employees of the government.

“The one with 30 days which Nigeria’s constitution is talking about refers to civil servants and others in the government’s employ. The Electoral Act is referring to political appointees, like ministers, special advisers, personal assistants, others. These ones are not in employment with the government,” he explained.

“It (the Act) does not even spell out ‘six months’. What it says is, ‘Resign your appointment before you can go for primaries either as a delegate or as an aspirant.’ Since primaries will start six months before the election, that boils down to that (clause of six months).

“It doesn’t say six months (explicitly). If primaries can be conducted three months before the election, it is all well and good. We are talking of two different scenarios. One is talking of civil servants and public servants (people in employment), and it states clearly that, 30 days before the election, you must quit!”

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Mr Raji, who advised interested parties in the case to indicate and appeal against the judgement, wondered why it was speedily delivered.

“Anybody who is interested in the ruling can appeal it. You have to show your interest. Any of the defendants in the case can appeal it. I do not have the facts of the case, and until I read the judgment, I would not be able to clearly say what the judge is saying. When was this Electoral Act signed? That was a few weeks ago. How come a case was filed and judgment was given very early?” he pondered.

Senate declines comment

When contacted, the Spokesman of the Senate, Ajibola Basiru, said the red chamber 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.

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Mr Basiru, however, queried why the rush in implementing the court decision.

“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?” he asked.

“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?”

Section 84 (12) misinterpreted – Reps

In a voice note to newsmen in Abuja on Friday, the spokesman of the House of Representatives, Benjamin Kalu, similarly denied knowledge of the suit.

Mr Kalu reiterated the position of lawyers above, maintaining that the controversial section was being misinterpreted.

“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,” he said.

“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,” Kalu added.

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