It’s an antithesis
By C.U. Daniels
AG has no statutory powers to delete a provision of an Act of the National Assembly. The gazettes are the Act of the legislative arm of Government and in their production by the executive arm the AG can not delete nor add any provision once signed into law by the Governor or President as the case may be. The President had directed the national assembly to work its review and went on and signed the electoral Act into law. That remains the law until it is amended in plenary. The court can declare without more that a provision in another valid law of national assembly is inconsistent, and void to the extent of its inconsistency with the provisions of the constitution of 1999 as amended. Nothing more. The Court may direct INEC to discountenance that provision as inapplicable for the time being till the national assembly amends the offending provision. That will be law until a superior Court declares otherwise and INEC is bound on notice to obey. To direct the AGF to delete a provision of an Act of Parliament is a relief strange to law. Second point is that the constitution actually provides 30 days to Election, is Primary election not Election covered by the electoral law to which the 30days relates. It should therefore be seen that the electoral Act merely amplifies the 30days to ‘election’ and not a breach. Where is the inconsistent any way. The constitution specified 30 days to Election not Elections. Primary election holds in May and that is the election within the contemplation of the constitution and the Electoral Act,and not general elections per se where only voting takes place after the candidates have emerged. Its in primary election that aspirants buy forms to run for an elective position requiring public servant who wish to vie for elective positions to resign 30days to election. That election under reference is the primary election and not the general election(s). This decision with due respect appears hasty and tailored to down play the necessity to the strengthening of best practice towards fair elections and public servants integrity not to be partisan while they midwife any election. Political appointees ought to resign prior to the election which starts in May 2022 by INEC timetable. My thesis is that the Electoral Law provision in question, which is the subject matter of the FHC judgment with utmost respect, as i believe in my view is not inconsistent with the provisions of 1999 constitution as amended. It is a good law made to address the obvious lapses inherent in the disobedience of that constitutional provision on the resignation of political appointees by 30 days to Election. The interpretation of the Electoral Act provision to mean only general elections is on a mischief rule. The ordinary meaning of that constitutional provision of 30days to election is the primary election. The electoral law provision is not in conflict after all with the provisions of the constitution, applying the golden rule in legal interpretation of statutes. This is yet another ambush to INEC strategic planning to conduct peaceful, credible and fair elections in Nigeria.
Chief C.U. Daniels, LLM, BL.
What next? The Electoral Act 2023, in perspective
By Yusuf Shehu Usman
They may have succeeded in getting a Federal High Court to push aside all the cases before it to give them the kind of Judgment they desire.
They got the court to hurriedly interprete the Consttitution and shoot down section 82 (12) and declare same illegal, unconstitutional, null and void to the extent the court believed it is inconsistent with the Consttitution.
It is very curious that this case was filed, heard and determined with unprecedented speed, considering the way the wheels of justice grind agonisingly slowly in our administration of justice in our Judicial system.
I will not be surprised if there were other Consttitutional cases pending before the same Court prior to the suit under reference in this post.
Furthermore, it is more curious that just yesterday, the Honourable Attorney General of the Federation boasted with crass arrogance that he will not resign and must remain on his seat till the end of his tenure.
This is an indirect admission by the Attorney General that he intends to participate in his party’s Convention and vote as a delegate and probably also contest in the Primaries as an aspirant, hoping to emerge as a candidate.
And he will do all these, while retaining his seat as a political appointee occupying the office of the Attorney General of the Federation.
This is definitely an affront to the provision of section 82 (12) of the extant Electoral Act at the time he made that boastful statement to the Press.
Also yesterday, the Attorney General told the press that they have three options namely; to challenge the provide of the Electoral Act before the court, to urge the National Assembly to reconsider the law or to just accept it as it is.
The Attorney General refused to disclose yesterday, that at the time he was addressing the Press, he had already filled a suit before a federal judge outside Abuja on behalf of the Executive arm of the government (which is a government that represents all of us), seeking to torpedo section 82 (12) of the Electoral Act.
This, i consider as witholding a vital information which the people are entitled to be informed about and it’s less than honest on the part of the Attorney General of the Federation
Is it therefore a surprise that a day after his defiant statement, and gbam!
There was a court Judgment in exactly the same terms as the Honorable Attorney General boasted about and delivered by a federal high court?.
Will it be wrong to state that the judgment was perfectly timed to coincide with the APC Convention, in which the Attorney General is set to take part as a delegate?
The sole purpose must be to get the Judgment delivered within such a time as to make it impossible to be set aside before the APC Convention and the Primaries both of which the Attorney General of Federation is alleged to have huge Political stakes in.
The Attorney General may have got what he an the President asked for
It’s now difficult to stop him from participating in the Convention and the Primaries.
This is because it may be difficult if not practically impossible, to get a contrary Judgment from the Court of Appeal.
Well, that is good for them even if embarrassing for the system and a short change for the National Assembly.
The most important thing is not just to qualify and emerge as a delegate at the convention and candidate in the Primaries.
That’s only half an achievement.
The biggest hurdle to cross is the general election, which going to be decided by votes and not Judgments
Let us wait and see how they will win the general election after the court “victory”.
Time will tell and the people will be the judges in the next phase of the drama.
Yusuf Shehu Usman min Abuja
Court Judgment is a booby trap for the ruling APC
By Kayode Ajulo
- 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
My attention has been drawn to the judgment of a Federal High Court sitting in Umaiha which declared the provisions of Section 84 (12) of the fledging Electoral Act, 2022 as unconstitional, null and void.
In a rather obfuscating manner, the Learned trial judge further directed the Attorney General of the Federation to “delete” the said section of the Act.
While the position of our Laws are clear to the effect that judgments of courts are vaild 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 expidency 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.
Power of Court to Declare an Act of the National Assembly Unconstitutional
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, 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 S1(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.
Suffices to state that a pensive justapoxing 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 apposite that the Appellate Court will set aside the decision of the trial court.
On forum shopping and failure to join the National Assembly as a Necessary Party .
For those who have mind to think, the perdurable questions to ask include:
Why was the suit filed in far away Umaiha, Abia State?
Why were the National Assembly and Independent National Electoral Commission not joined as parties to the suit?
To answer these thought provoking 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 regualte the conduct of elecrion 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 necesssry party has not been joined to an action, it can suo motu make an order for the joinder of such necessary party.
Without prejudice to the decision of the learned trial judge, we must reiterate that confidence in the judciariy must be upheld by all means and a reasonable man at all 1time must be able to retain his confidence in same. We must not allow political jiggery-pokery and desperacy destroy the fabrics of the Nigerian Judiciary. By way of allusion to the words of Niki Tobi JSC (of blessed memory) in the case of Buhari v INEC & Ors. (2008) LPELR-814(SC), the learned legal luminary from his wealth of wisdom advised on the need to be circumspect on issues bothering on politics and the judiciary thus:
The two professions do not meet and will never meet at all in our democracy in the discharge of their functions. While politics as a profession is fully and totally based on partiality, most of the time, judgeship as a profession is fully and totally based on impartiality, the opposite of partiality. Bias is the trade mark of politicians. Non-bias is the trade mark of the Judge. That again creates a scenario of superlatives in the realm of opposites. Therefore the expressions, “politician” and “Judge” are opposites, so to say, in their functional contents as above; though not in their ordinary dictionary meaning. Their waters never meet in the same way Rivers Niger and Benue meet at the confluence near Lokoja. If they meet, the victim will be democracy most of the time.
The judgment of the court is a Bobby trap for the ruling All Progressives Congress
The reaction of the Federal Government and the office of the Attorney General of the Federation to the evanescent decision of the Court leaves too much to be desired of the ruling All Progressives Congress.
It is instructive to note that the Peoples Democratic Party including other prominent political parties has concluded its Convention, if the All Progressives Congress should rely on the ephemeral judgment of the Court and proceed to permit Political Appointees vote and contest at its primaries and conventions, 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 position in the state from the APC.
In lending my two cents, it is not a triumph neither is it z time for drunk fanfare for the All Progressive Congress. The leadership of the party must be very circumspect in preventing a repeat of what happened in Zamfara State.
It is quite glaring that the tale of the future of the provision of Section 84 (12) of the Electoral Act is not that of an unrivalled woe, the National Assembly and Independent National Electoral Commission have a right to challenge the decision of the trial court as same is likely to set aside on appeal.
Kayode Ajulo, PhD, FCIArb UK
Analysis: Constitutional Validity Of Section 84 (12) Of The Electoral Act, 2022
By Festus Ogun
The Electoral Act, 2022 was recently signed into law by President Muhammadu Buhari. One of the newly introduced clauses in the new Electoral Act is Section 84(12) which provides that anyone holding a political office – ministers, commissioners, special advisers and others – must relinquish the position before they can be eligible to participate in the electoral process either as a candidate or as a delegate.
Section 84(12) of the Electoral Act, 2022 provides thus:
“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”.
The implication of the above is that political appointees who intend to be voting delegates or stand as aspirants for an elective positions in a primary election shall first of all resign their appointments. For a political appointee, the failure to resign appointment before voting as a delegate or standing as an aspirant in a primary election is a violation of the Electoral Act and further renders the primary election null and void and illegal.
IMPLICATION FOR POLITICAL PARTIES
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”.
Thus, where 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. Put simply, where a party allows a substantive political appointee to vote as delegate or participate as an aspirant in a primary election, the party shall have no candidate at all in the election for which the primary was held.
Political parties must therefore be thorough in the screening process of delegates and aspirants, by ensuring that all political appointees participating in any primary election show credible evidence that they have resigned their position. Should a political party be negligent enough to allow a political appointee participate in primaries, it could cost them a chance to contest in the general election and where they manage to scale through the electioneering process and subsequently win, it could be a ground for nullification of the election; which gives the political party with the second highest vote cast an opportunity to emerge as lawful candidate. APC & ORS V. KARFI & ORS (2017) LPELR- 47024 SC
IS SECTION 84(12) OF THE ELECTORAL ACT, 2022 CONSTITUTIONAL?
There have been contentious positions as regards the constitutionality of Section 84(12) of the Electoral Act, 2022. In fact, President Muhammadu Buhari protested the constitutionality of this controversial provision when making public presentation of the newly assented electoral law. Those who opposed to its retention have argued that it violates the provisions of Sections 40, 42, 66(1)(f), 107(1)(f), 137(1)(g) and 182(1)(g) of the 1999 Constitution of the Federal Republic of Nigeria, as amended (hereinafter referred to as the 1999 Constitution).
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 questions that follow therefore are: what is public service and who are public servants? Are “political appointees” public servants envisaged under the 30 days rule?
Section 318(1) of the 1999 Constitution defines public service of the Federation to mean the service of the federation in any capacity in respect of the Government of the Federation and includes:
Clerk of other staff of the National Assembly or of each House of the National Assembly;
Member of staff of the Supreme Court, the Court of Appeal, the Federal High Court, the High Court of the Federal Capital Territory, Abuja, the Sharia Court of Appeal of the Federal Capital Territory, Abuja, the Customary Court of Appeal of the Federal Capital Territory, Abuja or other courts established for the Federation by this Constitution and by an Act of the National Assembly;
Member of staff of any commission or authority established for the Federation by this Constitution or by an Act of the National Assembly;
Staff of any area Council;
Staff of any statutory Corporation established by an Act of the National Assembly;
Staff of any educational institution established or financed principally by the Government of the Federation;
Staff of any company or enterprise in which the Government of the Federation or its agency owns controlling shares or interest;
and Members or officers of the armed forces of the Federation or the Nigeria Police Force or other government security agencies established by law;
There is equally a similar provision for Public Service of a State under the same Section. From the above, it can be deduced that the Constitution is clear on who falls under the category of public service of the federation or of a state. Political appointees are not included. And the law is settled, like the water of Babylon, that in a constitutional provision, the express mention of one person or thing is the exclusion of another or the inclusion of one is the exclusion of another; respectively as contained in the Latin maxims: expression unius personae vel rei, est exclusion alterius or inclusion unius est exclusion alterius. See: MILITARY GOVERNOR OF ONDO STATE V. ADEWUNMI (1988) 3 NWLR (PT. 82) 280 AND ATTORNEY-GENERAL BENDEL STATE V. AIDEYAN (1989) 4 NWLR (PT. 118) 646
The mere fact that the Constitution has clearly defined who public servants are means political appointees are excluded and therefore not public servants.
Our Court of Appeal in PPA v. PDP & ORS (2009) LPELR-4865(CA) specifically held that political appointees and political office holders are not “Public Servants” and cannot be regarded as such under the Constitution. The court further held, per Olukayode Ariwoola, JCA (As he then was), that:
“The fact that Section 318(1) of the Constitution listed those it classifies as persons in the public service means that others not listed, such as, chief of staff and civil commissioner are not to be regarded as person in the public Service or persons who are public servants envisaged by Section 182(1)(g) of the Constitution. The fact that a person earns salary and allowances, lives in government quarter and drives in government vehicle does not, without more, make such a person an employee of government in the public service of the State as provided by the Constitution.”
Similarly, in the case of ADAMU V. TAKORI (2010) ALL FWLR (P. 540) 1387 C.A., the Court of Appeal held that a political appointee like the Attorney-General is not a public servant employed in the service of the federation or of a state and is therefore not caught by Section 318 (1) of the Constitution.
More recently, in the case of ONI v. FAYEMI & ORS (2019) LPELR-46622(CA) where the bone of contention was whether a Minister of the Federal Republic of Nigeria is an employee in the Public Service who must resign before contesting an election, the court held that 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.
On the strength of the above cited judicial precedents, it can be safely argued that political appointees are not employees in the Public Service and so cannot be covered by the 30 days constitutional provisions of resignation before the date of an election. It is also clear that unlike public servants, political appointees have no permanent and established Service Contract in the public service and can be hired and fired at will by the Chief Executive that made the appointments.
Apparently, the Constitution does not expressly or impliedly provide whether a political appointee must resign before it can contest election, as the 30 days rule is only applicable to employees in the Public Service. Thus, in the absence of a constitutional provision in this respect, the National Assembly has the inherent constitutional and legislative powers to enact Section 84(12) of the Electoral Act which does not violate or offend any Constitutional provision. 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.
On the second leg, the reliance on Sections 40 and 42 of the 1999 Constitution is equally faulty. Section 40 provides for the right to peaceful assembly and association. It beats the imagination how Section 84(12) of the Electoral Act infringes on the constitutional right to peaceful assembly and association. Mere resignation, for the purpose of participating in primary, does not violate an Appointee’s right to associate with the Chief Executive or whosoever.
Curiously, the right guaranteed under Section 40 is not absolute. Section 45(1) of the 1999 Constitution empowers the National Assembly to make law that could reasonably derogate from the right to freedom of association. In this instance, the National Assembly validly enacted the Electoral Act, 2022.
Again, Section 42 of the 1999 Constitution provides for the right to freedom from discrimination. Again, it is my humble submission that this section of law cannot be a legally sound ground to declare Section 84(12) as invalid. Section 42 of the Constitution simply provides that no Nigerian shall be discriminated against on the basis of ethnicity, place of origin, sex, religion or political opinion.
Then, I am compelled to ask: How does the requirement that a political appointee should resign before participating in primary election discriminatory on the basis of ethnicity, place of origin, sex, religion or political opinion? On another leg, one could ask: discrimination against whom exactly?
Significantly, subsection 3 of the same Section 42 relied on by the antagonists of Section 84(12) empowers the National Assembly to make law that “imposes restrictions with the respect to the appointment of any person to any office under the State”. This, to my understanding, gives another legal justification to Section 84(12) of the Electoral Act, 2022.
In the final analysis, it is important that we query the sincerity of the majority of those advocating against Section 84(12) of the Electoral Act, 2022. Is it a case of public interest, political mischief or greed? It is respectfully submitted that any attempt to nullify or frustrate the sacred provision of Section 84(12) of the Electoral Act, 2022 will fail as it is constitutionally valid, legally sound and imperative for the sanitization of our polluted political atmosphere.