Both possess PhD in Law, but hold contradicting views on the constitutionality of a legal code. Top NBA operative, Dr. Monday Ubani and acknowledged constitutionalist, Dr. Kayode Ajulo made their presentations.
Provision is unconstitutional —Ubani
To the excitement of all and sundry, especially to those patriotic Nigerians that desire sound electoral legal framework for our fledgling democracy, the assent of the President of the Amended Electoral Bill was a welcome development and was greeted with wide applause.
The truth of the matter is that Nigerians will never get it right with leadership if the electoral legal framework remains archaic and bereft of principles that ensure that the votes of the majority count.
The Amended Electoral Bill introduced some innovations, particularly the reception of limited e-voting and holistic e-transmission of electoral results. The major aspect of our electoral stages where manipulations graduate to infamy is at the stage of collation and counting of electoral results. All kinds of malfeasance including criminal input of strange figures in the electoral result sheets usually occur at this stage.
To cure to a certain extent the bizarre input of un-earned votes by the electoral umpire, the nation canvassed and compelled the legislators to insert the clause that adopted electronic transmission of results to eliminate the meddlesomeness of human interference in the system that usually give birth to strange electoral victories at the poll.
Sound and welcome development you will agree with me. However the President after much persuasion decided to assent to the bill but with a caveat that the National Assembly should ensure that Section 84(12) of the Act be amended as its provision offends the express provision of the constitution pertaining to the rights of certain political class (appointed political office holders) to associate and participate in the political system in the country.
The offending Section provides that “No political appointee AT ANY LEVEL shall be 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”.
S84(13) further provides that “where a political party fails to comply with the provision of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue.”
This section, truly speaking, disenfranchises political office holders who are appointees of the governor or president from participating at the primary election of the party either as a delegate or as a candidate.
When President Buhari was signing this law and was raising his preliminary objection to it, many of us including my humble self did not see the harmful effect as seen by him. The Section is a very dangerous provision.
We had felt that President Buhari’s complaints and delay in signing the bill was a delay too many and that he should just sign the bill and let us move on as a nation. Recall that the first time the bill was passed and brought to President Buhari, he refused assent citing the provision on party primaries as his reason. Tempers grew and voices were raised against the decline. The bill when returned was amended to reflect the wish of the President.
It was a great relief to many Nigerians when the President eventually assented to the bill but with a very serious objection. He sought and received assurance from the leadership of the National Assembly that they will accede to his request to amend the offensive section.
With the initial reluctance of the President to sign the Bill despite majority voice that he should, nobody was ready to look at the genuineness of the President’s complaints this second time around despite the fact that his complaints may have some undisputable weight.
A careful perusal of the Act reveals a sinister motive meant to pave way to the “elected office holders” to have an undue advantage over and above every other political office aspirant in Nigeria. This is pure evil and should not be allowed to stand. This Section really offends the provision on the fundamental right against Discrimination. Section 42 of the 1999 Constitution provides as follows:
- (1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:-
(a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or
(b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.
(2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.
(3) Nothing in subsection (1) of this section shall invalidate any law by reason only that the law imposes restrictions with respect to the appointment of any person to any office under the State or as a member of the armed forces of the Federation or member of the Nigeria Police Forces or to an office in the service of a body, corporate established directly by any law in force in Nigeria.
The summary of the above provision is that it will amount to violation of right against discrimination if someone is denied a right or position that another person of his class or group is allowed to enjoy.
Section 84(12) restricts a political appointee from contesting or voting in the primary election of his political party unless he resigns but the same law allows legislators, governors, local government chairmen who are members of the same political class with the Appointees to remain on their seats to vote and be voted for. This appears absurd, illogical and unacceptable.
The court of Appeal in Segun Oni Vs Kayode Fayemi has described political appointees as not Public Servants who are bound by the mandatory 30 days resignation clause that they must comply to if they must contest election.
The Supreme Court did not disturb this decision as it upheld the decision of the Court below by dismissing the appeal sorely on the ground that Segun Oni filed his appeal out of time.
That decision remains a precedence till date. In other words political appointees are not public servants employed in the public service that should resign from office before running for an office.
If the constitution of 1999 as Amended and approved by the decision of the Court of Appeal in Segun Oni Vs Fayemi held the view that a political appointee is not bound to resign from office 30 days before election as Section 318 of the Constitution never qualifies him or her as a Public Servant where does S 84(12) derive its validity to disenfrachise the office of political appointee from voting and contesting for a primary election in his political party?
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 for conflicting with the supreme provision of the constitution. That is the essence of S1(3) of the 1999 constitution as Amended. It provides and I quote “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”.
If the grundnum of the land does not disqualify a political appointee from voting and contesting for an election in his political party, the new Amended Electoral Act does not possess the requisite vires to so do, and as long as it tends to do this, it has to be set aside as it runs contrary to the express provision of the 1999 constitution with regards to Right against Discrimination, Association etc. The validity of this assertion shall be so tested in our vibrant judiciary.
It isn’t —Ajulo
It is no more news that President Muhammadu Buhari on Friday, 25th February, 2022 signed the Electoral Act 2022 into law. It suffices to recall that the said Bill was signed into law after it has suffered protracted delay and setbacks both from the Presidency and the National Assembly, particularly on the provision of the Bill which relates to mandatory direct primaries.
It is pertinent to recall that during the ceremony, Mr. President voiced his reservation with respect of the provision of Section 84(12) of the new Law. According to the statement credited to Mr. President, he noted that the said provision is in conflict with extant constitutional provisions.
He further noted that Section 84(12) 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 case where it holds earlier than 30 days to the national election.
The above reservations credited to the President forthwith generated reactions, reprimands and diatribe from political pundits, lackeys and constitutional legal minds.
It is on the above premises that it is imperative to pensively consider the provisions of Section 84(12) of the new Electoral Act vis-a-vis relevant provisions of the Constitution in the bid to ascertain the legality or otherwise of the provision of the Act.
What does Section 84(12) of the Electoral Act, 2022 provide?
Section 84(12) “No political appointee at any level shall be voting delegates or be voted for at the Convention or Congress of any political party for the purpose of the nomination of candidates for any election”.
A literal interpretation of the above 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.
(The question is) whether the provision of Section 84(12) is in contravention with the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Firstly, it must be noted that the provision of Section 84(12) of the Electoral Act derives its validity from the Constitution and same does not contravene the provision of the Constitution. 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 a post at 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 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 election. *See Section 137(1)(g), 182(1)(g) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).*
Having stated the above, the perdurable question to ask is whether a political office holder is a public servant under the provisions of the Constitution.
By virtue of Section 318(1) of the 1999 Constitution, public service of the Federation means 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;
The Section also makes similar provisions for public service of the State. One can argue that the reason for the requirement of resignation of a public servant before election is to ensure neutrality of persons in the Executive Administration of the Government at all levels and to prevent partisan politics in the civil service. Notably the Public Service Rules prohibits a Civil Servant from being involved in partisan politics. So if you want to be involved in partisan politics, you must resign.
*Section 4 article 030402(g) of the Public Service Rules* categorically states that “Engaging in partisan political activities” is one of the significant examples of serious misconduct. See also the decision of the Supreme Court in the case of *Independent National Electoral Commission v Musa & Ors. (2003) 3 NWLR Pt. 806 pg. 72.*
It is quite succinct to state that by the dint of the provisions of Section 318(1) of the Constitution of the Federal Republic of Nigeria as highlighted above, a political office holder is not a public servant or in the public service. See the case of *OJONYE V. ONU & ORS(2018) LPELR-44223(CA)* where the Court held that political appointees hold office at the pleasure of the Chief Executive and they are not public servants as provided for under the Constitution.
It is apposite to note that the position of the law is that the express mention of one thing in a statutory provision or schedule, excludes the other. See *Udoh V OMHB (1993) 7 SCNJ (Pt. 2) 436, 444.* Since the Constitution expressly states that a public servant must resign within a period of 30 days before the conduct of the election, the said section does not include political office holders. Hence, political office holders cannot take coverage under these provisions of the Constitution.
On whether Section 84(12) of the Electoral Act, 2022 disenfranchises political office holders as guaranteed under the provision of Section 40 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), it must be stated pronto and very clearly too that the right to assemble freely and associate with other persons as provided in Section 40 and the right to form a political party as provided for under Section 221 of the Constitution has not been derogated from by the provision of Section 84(12) of the Electoral Act.
The said provision has not preclude political appointees from becoming a member of a political party or to vote at general elections. It only precludes them from voting as a delegate at the party’s convention and congresses. This regulation only deals with the internal affairs of political parties. Moreso, a political appointee does not hold the office as of right but at the pleasure of the Chief Executive.
Having established the legality of the provision of Section 84(12) of the Electoral Act, 2022, it is pertinent to state that most of these political appointees have ended up using their offices to intimidate political opponents of their principals during party primaries in a bid to retain their jobs.
Moreso, the Section of the Act was designed to create a level playing ground for all aspirants during congresses and conventions. It is instructive to note that the Section does not in any way undermine the rights of political appointees to hold office or participate in primaries or main elections.
and then