Law & JudiciaryNews

Retouching of electoral law unsettles polity

By Rex Enabulele, Joshua Omoloye, Sampson Onyebuchi

Peoples Democratic Party (PDP) has said that the Abia state High Court that nullified clause 85 section12 of the Electoral Act was contrived, vowing to appeal the judgment State.

The party also said that for the fact that some presidential aspirants are already purchasing the nomination forms will not in any way invalidate the outcome of the 37 man committee set up to determine the zoning of the party’s presidential ticket.

Justice Evelyn Ayandike of the Abia State High Court had Friday in Umuahia nullified clause 84 section 12 of the Electoral Act on the grounds that the provision conflicted with Nigerian citizens’ rights guaranteed by the 1999 constitution. The judge noted that the Nigerian constitution already has a provision that mandates appointees of government seeking to contest elections to resign at least 30 days to the date of the election.

The judge, therefore, ruled that any other law mandating such appointees to resign or leave office at any time before that date “is unconstitutional, invalid, illegal null and void, to the extent of its inconsistency to the clear provisions of the Constitution”. She also ordered the Attorney-General of the Federation, to forthwith, delete the said section 84(12) from the body of the Electoral Act, 2022.

But the opposition PDP yesterday described the judgement as “contrived to truncate the nascent democracy”, explaining that it is studying the court judgement with the intention of taking necessary legal steps, including appealing the judgement.

Speaking with journalists in Abuja , the National Publicity Secretary of the PDP, Debo Ologunagba said, “the judgement is a contrived judgement with the intention to put a road blocks to democracy and the electoral processes.

26 NASARAWA: H. E. MIKE ABDUL 27 NIGER: PROF. JERRY GANA 28 OGUN: HON. DAISI AKINTAN 29 ONDO: DR. OMOTAYO DAIRO 30 OSUN: PROF. ADEWALE OLADIPO 31 OYO: SEN. HOSEA AYOOLA AGBOOLA 32 PLATEAU: H. E. JONAH DAVID JANG 33 RIVERS: H. E. RT. HON. CHIBUDOM NWUCHE 34 SOKOTO H. E. ATTAHIRU BAFARAWA 35 TARABA: H. E. DARIUS ISHAKU 36 YOBE: ALH. ADAMU MAINA WAZIRI 37 ZAMFARA: H. E. BARR. MAHADI ALIYU GUSAU PDP presidential zoning committee Cautioning party leaders not to compromise PDP policy, he insisted that the south deserves the party’s presidential ticket this time around. He therefore warned them not to compromise party’s position.

He also asked Atiku to abide by the zoning policy which has become an unwritten convention that has guided PDP in the past. He added: “I have cautioned the Peoples’ Democratic Party, PDP, for the umpteenth time, that it will be sacrilegious and morally reprehensible to continue to indulge Alhaji Atiku Abubakar and.other Northern aspirants in the race on who emerges the Presidential candidate of the party for the 2023 election.

“I have repeatedly said that for the sake of justice, equity and fairness, the ticket should be ceded to the Southern part of the country. This is how to promote party cohesion, unity and oneness of purpose.

It was in realization of that, that the Southern axis allowed their Northern brothers to take a shot at the presidency alone and all alone in 2019. Now that it should be the turn of the South, you see the leadership of the party talking with its tongue in cheek.”

“The said judgement apart from being contrived did not follow due legal processes. “We have our suspicions. The suit was filed less than a week.

The Attorney General betrayed his office as a government appointee with interest and the processes was manipulated with the Action Alliance (AA) who was the plaintiff without putting the National Assembly who is the defendants on notice.

“The processes was manipulated because the Attorney General of the Federation would be a direct beneficiary of the judgement. He is a government appointee and not a public servant who has a 35 years guarantee in office.. 30 days is for political appointees, therefore he is a direct beneficiary of the court order.”

The PDP wondered why the National Assembly a defendant, was not put on notice and the suit was filed less than a week. The opposition parties added, “You cannot be in office and use public funds to further your political aspirations – as Governor Kayode Fayemi of Ekiti State did.

“We are studying the case file with the intention of taking appropriate measures including appealing the judgement. We in the PDP is worried in the hurry and rush.” On the presidential aspirants rushing to obtain nomination forms and not waiting for the outcome of the 37-man committee that would determine the zoning of the presidential ticket, Ologunagba said, “We are a party of due processes.

That any one has obtained a nomination form does not in anyway invalidate the report of the 37 man committee when they submit their report. “The 37 man committee is a decision of the National Executive Committee (NEC) and it must be implemented one way or the other.”

He explained that the PDP has processes, saying it will always obey its rules and guidelines. Also many lawyers, among them, Senior Advocates of Nigeria (SANs) have criticized the court judgment. Labour Party (LP) has also vowed to appeal the ruling Revealing the party’s position on the matter, the National Publicity Secretary of LP, Abayomi Arabambi, said the judgment as delivered is antithetical to status of the combined effect of Sections 66(1)(f), 107(1)(f), 137(1) (g) and 182(1)(g) of the 1999 Constitution, which says “ a person shall not be qualified for election in Nigeria if the candidate is a person employed in the civil or public service of the Federation or of any state and has not resigned, withdrawn or retired from the employment at least thirty (30) days before the date of the election”.

According to him, these simple provisions were meant only for person’s employed either as civil servants or public servants who intend to contest an election in Nigeria must have resigned his or her position at least 30 days before the date of election.

He said: “Again Section 84(13) further provides that “where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for the election shall not be included in the election for the particular position in issue”.

“The main question before the federal high court was that Political appointees are those referred to in Sections 66(1)(f), 107(1)(f), 137(1)(g) and 182(1)(g) of the 1999 as public servant.

“The lawful questions I am demanding here are: what is public service and who are public servants? Are “political appointees” public servants as envisaged under the 30 days rule because once a political party violates the provision of the Electoral Act in respect of political appointees in primaries, the party’s candidate shall be excluded from the general election for which the primary election was conducted meaning the party shall have no candidate at all in the election for which the primary was held.

“By the combined effect of Sections 66(1)(f), 107(1)(f), 137(1)(g) and 182(1)(g) of the 1999 Constitution, a person shall not be qualified for election in Nigeria if the candidate is a person employed in the civil or public service of the Federation or of any state and has not resigned, withdrawn or retired from the employment at least thirty (30) days before the date of the election.

“The simple interpretation of the above constitutional provision is that any employed civil servant or public servant intending to contest an election in Nigeria must have relinquished his or her position at least 30 days before the date of election, The Trumpet gathered.

“Section 84(12) of the Electoral Act makes provision in respect of resignation of political appointees before primary elections while Sections 66(1)(f), 107(1)(f), 137(1)(g) and 182(1) (g) of the 1999 Constitution make provision for 30 days resignation rule for employees in the Public Service; the two are clearly distinct and must not be confused, either innocently or mischievously, as the same.

Concluding, Arabambi said the case of SEGUN ONI v. FAYEMI & ORS (2019) LPELR46622(CA) where court said “a Minister, being a political appointee, is not an employee in the Public Service of the Federation and therefore not constitutionally obligated to abide by the 30 days resignation rule for an employee in the Public Service, the lower court thus lack jurisdiction to set aside the judgement of a superior court which is in this case was a court of appeal.

“On this strength of the position of Law, I shall be asking my team of lawyers to urgently request for the certified true copy of proceedings in the suit number FHC/UM/CS/26/2022 to appeal the judgment as it’s against the spirit of justice, equality and fair play,” he added.

Also, two human rights lawyers , Femi Falana and Mr. Ebun-Olu Adegboruwa, both senor advocates of Nigeria (SAN) have faulted the court verdict.

The senior lawyers in separate reactions said the decision of the court was a great error and cannot stand the test of time. For instance, Falana pointed out that sections 66 (1) (f), 107(1) (f),137 (1) (f) and 182 (1) (f) of the Constitution relied upon by his lordship required persons employed in the public service of either the federal government or state governments.

Specifically, former President of west African Bar Association (WABA) s aid: “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.”

Falana argued that by virtue of Section 318 of the 1999 Constitution, political appointees “are not included in the list of persons employed in the public service.

To that extent, Section 84 (12) of the Electoral Act was annulled on a very faulty ground. “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,” he added.

To Adegboruwa, 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.

“Why do you want to hold on to your office as a political appointee and at the same time be a candidate in an election? May Nigeria not happen to us in this way?” Similarly, another human rights lawyer, Dr. Kayode Ajulo, said the judgment could not stand in the face of the law.

He also predicted a higher risk for political office holders who may want to take advantage of it. He raised three observations thus: *The Judgment of the Court is per incuriam *Political appointees are not public servants *The National Assembly is a necessary party and has a right to set same aside on Appeal *Compliance with the judgment of the trial court is a booby trap for the ruling APC.

He said: “While the position of our laws is clear to the effect that judgments of courts are valid until set aside on appeal no matter how erroneous they might be, however, considering the ratio decidendi of the decision of the court viz-a-viz the expediency and imminent consequence of the decision of the court on our political administration and party politics, it is therefore imperative to pensively dissect the judgment of the court in the light of the spirit of the Constitution and position of the Apex Court.

“Let us get a point clear: it is undoubted that Courts of superior record by virtue of Section 6 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), have the power to declare an Act of the National Assembly unconstitutional, null and void to the extent of its inconsistency.

“Moreso, a plethora of authorities have established the principle that where a provision of an enactment by the legislature conflicts with the express provision of the Constitution, the said extant law shall be declared null and void. “That is the essence of Section 1(3) of the 1999 constitution as Amended.

It provides that ‘If any other law is inconsistent with the provision of this constitution, this constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.’

“It is however instructive to note that in cases where legislation is contested for being in conflict with provisions of the Constitution, the courts have only one duty: ‘to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former.

See the cases of U.S. v. Butler et al (1936) 297 U.S 1 (and Marwa & Ors v. Nyako & Ors (1980) LPELR-2936 (SC). “In the case under review, the learned trial judge noted that the provision of Section 84 (12) of the Electoral Act is inconsistent with the provision of Sections 66 (1) (f), 107(1) (f), 137 (1) (f) and 182 (1) (f) of the Constitution.

“Suffice to state that a pensive juxtaposing of the Sections of the Constitution relied upon by the learned trial judge require persons employed in the public service of either the federal government or state governments. “What is more, the provision of Section 318 of the Constitution as to who qualifies as a public servant is unambiguous. Similarly, decisions of Court abound on this clear position.

See Dada V. Adeyeye (2005) 6 NWLR (Pt. 920), 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.

“It therefore implies that the decision of court, with respect, is per incuriam and the ratio of court cannot find coverage under the Sections of the Constitution cited by the learned trial judge to arrive at the decision. “Based on the doctrine of judicial precedents, it is quite the opposite that the Appellate Court will set aside the decision of the trial court.

“For those who have the mind to think, the perdurable questions to ask include: *Why was the suit filed in far away Umuahia, Abia State?

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Why were the National Assembly and Independent National Electoral Commission not joined as parties to the suit? “To answer these thoughtprovoking questions, attention must be readily drawn to the fact that the National Assembly who is the authority empowered by Section 4 and 228 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Independent National Electoral Commission who is empowered to regulate the conduct of election in Nigeria by virtue of Section 153 of the Constitution respectively ought to have been joined by the Plaintiff as necessary parties to the action.

“While it is not the duty of a judge to force on a Plaintiff the party to be sued, however judicial authorities abound to the effect that where a judge considers that a necessary party has not been joined to an action, it can suo motu make an order for the joinder of such necessary party.” Ajulo said the swift reaction of the Federal Government and the office of the Attorney General of the Federation to the court ruling “leaves too much to be desired of the ruling All Progressives Congress.”

“If the All Progressives Congress should rely on the ephemeral judgment of the Court and proceed to permit Political Appointees to vote and contest at its primaries and conventions, the same is a disaster going somewhere to happen. “What readily comes to mind is the decision of the Supreme Court in Zamfara State where the Apex Court held that there were no validly elected candidates in the various elective positions in the state from the APC.

“In lending my two cents, it is not a triumph neither is it time for drunk fanfare for the All Progressives Congress. “The leadership of the party must be very circumspect in preventing a repeat of what happened in Zamfara State,” he added.

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