Electoral Act: National Assembly to Appeal Court Judgment Deleting Section 84(12)

•Lawmakers file complaint to NJC against Judge for empowering Malami

• Gbajabiamila vows not to allow parliament to be ridiculed 

•Urges AGF to desist from implementing ruling 

•Obeying court order, work in progress, says AGF

Deji Elumoye, Sunday Aborisade and Udora Orizu in Abuja

Both Chambers of the National Assembly yesterday made resolutions to appeal a court judgement which nullified Section 84 (12) of the Electoral Act 2022.

The Senate and the House of Representatives respectively announced their resolve to challenge the court ruling after their plenary sessions.

But the Attorney-General of the Federation (AGF) and Minister of Justice, Abubakar Malami, has said implementing the court ruling was a work in progress.

A Federal High Court sitting in Umuahia, had in its verdict, ruled against the provisions of Section 84(12) of the newly amended Electoral Act 2022 passed by the National Assembly.

Justice Evelyn Anyadike, in the judgment, had held that the Section of the Act was unconstitutional, invalid, illegal, null, void and of no effect whatsoever.

The Judge said it ought to be struck down as it could not stand because it was in violation of the clear provisions of the Constitution.

Consequently, the court ordered the Attorney General of the Federation to “forthwith delete the said Subsection 12 of Section 84 from the body of the Electoral Act.”

However, in a unanimous decision at plenary, the red chamber resolved to, “appeal the judgment for the Court to set the judgment aside”

Citing under order 42 of the Senate Standing Orders on Personal Explanation, Senator George Thompson Sekibo (PDP, Rivers East) during plenary, challenged the judgment of the court on Section 84(12).

He cited Section 4 of the 1999 Constitution (as amended). Sekibo stated that the National Assembly was empowered by virtue of Its provisions to make laws for the peace, order and good governance of Nigeria.

He added that Section 228 lists such functions to include making laws to ensure internal democracy within political parties.

The section provides in part that, the National Assembly may by law provide guidelines and rules to ensure internal democracy within political parties, including making laws for the conduct of party primaries, party congresses and party conventions.

It also included the conferment on the Independent National Electoral Commission (INEC) of powers as may appear to the National Assembly to be necessary or desirable for the purpose of enabling the Commission more effectively to ensure that political parties observe the practices of internal democracy.

The motion had 84 co-sponsors apart from Sekibo.

The motion was titled, “urgent need to appeal the Judgment of the Federal High Court Umuahia on Suit No.: FHC/UM/CS/26/2022 on Section 84(12) of the Electoral Act 2022.”

Sekibo drew the attention of his colleagues to the judgement of the Federal High Court in Umuahia, Abia State, in a suit marked FHC/MU/SC/26/2022.

The judgement faulted the provision of Section 84 (12) of the Electoral Act 2022 and declared it unconstitutional, invalid, illegal, null void and of no effect.

Section 84(12) of the Electoral Act 2022 states as follows: “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.”

The lawmaker observed that the judge in his ruling held that Section 81(12) of the Electoral Act 2022, was inconsistent with Sections 66(1)(f), 107(1)(f), 137(1)(g) and 182(1)(c) of the 1999 Constitution of the Federal Republic of Nigeria as amended.

He noted further that Section 4(1)(2) and (3) of the 1999 Constitution as amended vested the power of lawmaking for the Federal Republic of Nigeria on the National Assembly.

He argued that in furtherance to the powers vested in the National Assembly, the 1999 Constitution under the roles of the Executive in Item D that deals with political parties in Section 228(a)(b) and (c) confers more powers on the National Assembly, more particularly on political parties and effective management of the electoral process by the Independent National Electoral Commission (INEC).

He noted that the Electoral Act 2022 enacted by the National Assembly followed due process, adding that Section 84(12) of the Act exclusively refers to nomination conventions and congresses called for candidates’ selection and not participation in the general election which Sections 66(1)(f),137(1)(g) and 182(1)(g) referred to.

According to him, the interpretation of the meaning of the words ‘civil service’ and ‘public service’ in Section 318 was unambiguous, saying, “there’s a difference between the civil service or public service and political appointment.”

He added that, “the Senate of the Federal Republic of Nigeria should show concern on the judgment especially when she was not given opportunity to represent herself in a matter such as this that emanates from her legitimate functions.”

Sekibo warned further that, “letting the judgment go without concern will become a precedence on which any person could go to court and obtain judgment to ridicule the good intentions of the National Assembly as an institution.”

The Senate, accordingly, resolved to appeal the judgment in suit FHC/MU/SC/26/2022 for the court to set aside the judgment, noting that same was reached without due consideration of the Constitutional interpretation in Section 318 of the 1999 Constitution as amended.

House to Appeal Judgement Nullifying Section 84(12)

In a related development, the House of Representatives at plenary yesterday, resolved to appeal the judgement of the Federal High Court sitting in Umuahia, asking the Attorney General of the Federation, Abubakar Malami (SAN) to delete section 84(12) from the electoral act amendment bill recently signed into law by President Muhammadu Buhari.

The lawmakers also resolved to file a complaint to the National Judicial Council (NJC) against the conduct of the Judge, Evelyn Anyadike, who gave judgement against the National Assembly despite not being parties to the suit.

The resolutions of the lawmakers were sequel to the adoption of the prayers of the motion moved by the Speaker of the House, Hon. Femi Gbajabiamila, who converted as a motion, the matter of privilege on the issue presented by Hon. Sada Soli (APC, Katsina).

Members of the House, across party lines took turns to condemn the court judgement, describing it as encroaching the principle of separation of powers.

Soli described the court judgement as an attempt to oust the jurisdiction of the parliament in making laws by directing an appointee of the executive to delete a law made by National Assembly.

Making reference to a legislative law report of Nigeria on Olisa Agbakoba versus National Assembly, page 2100, paragraph 15, he said the court cannot import into the constitution what the legislators never intends, adding that the courts of law while interpreting the constitution have no power to bring into it what the legislators didn’t provide for.

He said, “the judgement given with respect to section 84 (12) of the electoral act, the intention of the legislator was to address the issue of political appointees which was never in anywhere in our constitution. This is to give a level playing ground to all participants, that was the wisdom of the legislature.  The court can’t interpret what the legislators didn’t intend. Our intention was to address the issue of political appointees.

“Mr. President was advised in his communication to this House with respect to section 84(12) requesting the parliament to delete that section. I’m sure that advise is given by the Attorney General. The advice in that letter to the parliament by the President was to delete; the court is giving an executive appointee the power to encroach on the principles of separation of powers.

“This is a clear cut infringement of collective good of all parliamentarians to make laws. Our privilege has been breached.”

Corroborating Soli’s stance, Minority Leader Hon. Ndudi Elumelu (PDP, Delta) said the judgement offends the principle of separation of powers.

While calling for condemnation of the judgement, he suggested to his colleagues to write a petition to NJC on the conduct of the Judge.

Elumelu said, “Section 66 (1f), section 107 (1g) , section 137 (1g) and section 182 (1g) that talks about a public servant who is perhaps is interested in contesting for House of Assembly, these sections I quoted deals with the manner which such civil servant can be eligible to contest for election.

“The same way it deals with issues of National Assembly, presidential and governorship election. I’m taken aback, in the constitution where there’s separation of powers and where we have been given the provision to make laws, that somebody is trying to do our job.

“I had expected the judiciary to interpret and in the course of interpretation can still refer back to National Assembly to say please do this but not asking that the executive should do the job of the National Assembly.”

Similarly, Hon. Ibrahim Olarewaju (APC, Ekiti) advised the lawmakers to either appeal the judgement as interested party or file a law suit, adding that they could also complain formally to NJC about the judge who gave this kind of judgement.

Also, the Chief Whip of the House, Hon. Tahir Monguno (APC, Borno) was of the view that the court violated the principle of fair hearing by not reaching out to the National Assembly, hence the proper step to take is to appeal that decision so it can be set aside.

On his part, the House Leader Hon. Alhassan Ado-Doguwa (APC, Kano) said the parliament should not allow the judiciary to indict them unnecessarily or do their job.

Doguwa said, “Whatever decision this very court in question took to effect this kind of judgement against an innocent institution, doing our noble job.

“We are custodian of laws and laws must be obeyed in this country; we must make a strong statement and condemn this; we should not allow the judiciary as an institution to not only indict us unnecessarily but we must make them understand we must leave to Caesar what is Caesar and leave to gods what’s gods.”

In his ruling, Gbajabiamila noted that while he agrees that President Muhammadu Buhari was entitled to take legal advice from the AGF, Abubakar Malami, he however won’t allow the institution which he heads currently to be ridiculed under his watch.

The Speaker, described the plaintiff as a meddlesome interloper who is worried about something that doesn’t affect him.

Why wondering why the judgement was taken in Abia State where the defendants don’t reside, Gbajabiamila said the judiciary while interpreting a law as stipulated in the constitution should have come to the parliament for clarity.

He therefore ordered the AGF, Malami to desist from implementing the court ruling until the matter is resolved.

He said, “I read this judgement on the pages of newspapers. The first thing I did was to call the legal department and my office to find out if we were ever served with the processes and they said we were not served.

“This House could not have been served because we were not made a party to the suit. I believe President Muhammadu Buhari relies like he should on legal advice that’s given to him. I think he relied on the legal advice that was given to him, that this matter was unconstitutional.

“However I cannot sit here and allow the institution which I head currently to be ridiculed under my watch. I have a sacred responsibility to make sure that we leave this 9th Assembly with our head held high and knowing that we have done everything we can to protect this institution and deepen our democracy.

“Our attempt with this 84(12) section was to deepen democracy, unfortunately it was taken to court, not minding that there was a mischief the National Assembly sought to cure. Assuming the law is ambiguous, when you are interpreting it then you go to the mischief rule to get the full clarity of what was intended.”

Gbajabiamila added, “What’s more curious to me is the fact that the supposed plaintiff in this case, had no injury that he had sustained in the matter. Unless I’m wrong, I don’t know him to be a political appointee that was affected by the law.

“He was really nothing more than a meddlesome interloper. Also what’s even more curious was the fact that the powers of the legislature were usurped. Under any guise you cannot touch a piece of legislation unless it’s done by those who have constitutional authority to do so. “We have to appeal this judgement and have it set aside for the sake of posterity and for the records. So I appeal to the Attorney General to tarry and not go into the functions of the National Assembly because apparently he intends to carry out the order of the court. He should stop and desist for now until this matter is settled. And we should write a formal complain to NJC.”

Malami: Obeying Court Order Removing Section 84(12) from Electoral Act is Work in Progress

Meanwhile, Malami said implementing the ruling of a competent court of law was a work in progress.

Malami made this known yesterday, while speaking with newsmen at the State House, Abuja, at the end of the weekly virtual Federal Executive Council (FEC) meeting presided over by Buhari.

Prodded to give update on the implementation of the ruling by the federal high court in Umuahia, Abia State, the AGF said the process was still on.

He said: “My clear response is the fact that truly there exist a court judgment. By the judgment, the court directed the Office of the Attorney-General, to take the necessary steps to delete the provision, which in essence implies that the provision should not form part of our laws.

“Whether it has been deleted, or has not been deleted, is indeed a function of agencies of government and associated relevant parastatals, but the true position of it in that respect, is the fact that government printers, and indeed Law Reform Commission, among others, that are responsible for the codification and gazetting of our laws, are working naturally, hand in hand with the Office of the Attorney-General for the purpose of ensuring that what goes into our laws are indeed in line with the provision of the law.

“So what I am saying in essence, it is indeed a work in progress against the background of the fact that the Law Reform Commission is involved statutorily, which is a parastatal under the Office of the Attorney-General, is a party to the process of codification.

“The government printers, which are saddled with the responsibility of gazetting our laws on the request of the Office of the Attorney-General is equally involved.

“Above all, as you rightly stated, the possibility of an appeal is equally there. So, what I am saying in effect is deletion of section 84 Subsection 12 is a work in progress and is being considered as such”.

Buhari had while signing the revised Electoral Act on February 25, 2022, raised an objection against the section, noting that it stands in direct contravention of the 1999 Constitution (amended).

The section reads: “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.”