Section 84(12) of the Electoral Act: Implications of the federal high court judgment on Nigeria’s failing democracy

The Federal High Court, sitting at Umuahia presided over by Honorable Justice Evelyn Anyadike declared that Section 84(12) of the Electoral Act, amended in 2022 as unconstitutional, null and void. The said Section 84(12) of the Electoral Act provides 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 such person or other candidates for any election.  Since the judgment was delivered there have been debates in both legal and political circles justifying and criticizing the Judgment.

The Constitution of the Federal Republic of Nigeria, 1999 (as amended, now several times) provided in Sections 66(1)(f), 107((1)(f), 137(1)(f) and 182(1)(f) that public servants who are employees of government must resign at least THIRTY DAYS to the day of the election they are contesting in. The question is, are political appointees the public servants referred to in Sections 66(1)(f), 107((1)(f), 137(1)(f) and 182(1)(f) of the Constitution? A lot of decisions of the appellate Courts have been referred to by scholars of bothsides of the divide. However, I am struggling to see how Section 84(12) of the Electoral Act conflicts with Sections 66(1)(f), 107((1)(f), 137(1)(f) and 182(1)(f) of the Constitution. Political appointments are not pensionable jobs. They are not subject to payment of gratuity and the holders serve at the pleasure of the President, Governor, Minister or the Head of MDAs employing them. Do we now, say that government consultants are also public servants because they are being paid by government for their services? Certainly, No; the Constitution did not subject political appointees to any restrictive statute and I fail to see how Section 84(12) discriminates against any person or violates any person’s fundamental right.  There is no doubt that the Judgment of the Federal High Court, Umuahia may set Nigeria backward in its drive for an enduring, fair, credible and transparent political process.

The Judgment has now given legal authority to all political appointees to sit heavily and calmly in their offices, submit their nomination forms and contest their party primaries while still occupying their office; and of course still holding rallies and using the paraphernalia, facilities and privileges of their offices to harass and intimidate their political opponents. Imagine the Governor of the Central Bank of Nigeria, while still remaining as CBN Governor, holding rallies and campaigning for the office of the President of Nigeria for the next one year; or the respected Professor Itse Saga, SAN who is a political appointee of the Federal Government holding campaign rallies in Lagos, Kano and Rivers States for the office of the President of the Federal Republic of Nigeria. Do we now say that the Nigerian Ambassador to the United States andthe High Commissioner to the United Kingdom are free to abandon their jobs, come back home and campaign for any political office while still remaining as Ambassador and High Commissioner? There must be a limit to shame and impunity. Unfortunately, the Federal High Court’s Judgment will now make political appointees to throw caution to the winds.

Telling political appointees that they are free to campaign by virtue of the Federal High Court’s Judgment till February, 2023 or at least one month to the election is a licence to abandon their offices while they are still collecting the remunerations and perks of their offices. The nation suffers. The people suffer and nothing happens or moves till the election is over. In civilized climes, no political appointee needs to be asked before resigning long before contesting for any election. As a matter of fact, it is a crime in some Western Countries for political appointees to use government facilities, privileges and perks to advance their political aspirations to elective offices.

It is sad day for Nigeria. As rightly observed by Femi Falana, SAN within 11 days, the case was filed, processes served, case heard, judgment delivered at the Federal High Court, Umuahia; and also another record is broken when without the ink on the Judgment drying up the Attorney General of the Federation announced that he was going to comply with the Judgment; whereas there are thousands of Judgments and orders of various Courts against the Federal Government and its agencies which have been begging for compliance, for many years. A country where the AGF, the Chief Law Officer of the Federation chooses which Judgment or order of Court to obey is on the precipice of self-destruction.

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“Absolutely, When we came with the Buhari government in 2015 I became the minister. We were committed to a roadmap to establish a National Carrier, to concession the airports, to set up a leasing company, to establish cargo facilities and we have been doing that.”

On why the Buhari government wanted a national carrier, the minister responded: “Nigeria is situated at the centre of Africa, equidistant from all locations in Africa. 30.4 million square kilometres miles, 1.5 billion people, very green land. If Central and Eastern Africa is the belt of the continent, then Nigeria is the buckle. 200 million people and rising middle class, propensity to fly is high. Nigeria is a candidate for National Carrier.”

Sirika who insisted that the coming national carrier will be private sector driven added; “Private. Yes. 5 per cent government and no government stepping right in that company, no government control, no membership of government on board. Totally private and committed.

“Whatever we say we will do as a government since 2015, it has happened. that is why Tim Clark of Emirates, Qatar Airways and all of them are looking to go into Nigeria in multiple frequencies and multiple landing points because Nigeria is the right place for the airline business.

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