Unending Controversy over Electoral Act

The resolution by the National Assembly to appeal the judgment of the Federal High Court in Umuahia, nullifying Section 84(12) of the Electoral Act 2022, and the determination of the Attorney General of Federation to ensure that the provision completely expunged from the Act, have shown that the controversy will linger for a long time, Udora Orizu writes

The last has certainly not been heard of the controversy over the deletion of Section 84(12) of the Electoral Act 2022, following the decision of the Senate to appeal the judgment by a Federal High Court in Umuahia, the Abia State capital.

The Senate’s decision came after the House of Representatives also resolved to appeal the judgment. The House described the judgment as an aberration and vowed to appeal against the verdict. It contended that the court has no right to interfere with the powers of the National Assembly to make laws. The Senate’s resolution was reached during plenary last Wednesday, following the consideration of a motion entitled, “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.”

 The motion was sponsored by Senator George Thompson Sekibo (Rivers East) and co-sponsored by 79 other senators.  Sekibo, in his presentation, drew the attention of his colleagues to the judgment of the Federal High Court in Umuahia, in a suit marked FHC/MU/SC/26/2022.

The judgment 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 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 controversial section implies that except a political office holder or public servant resigned from office three months before the commencement of party primaries, he or she was barred from taking part as delegate in primary or candidate of political party.

Sekibo observed that the judge in his ruling said that Section 84(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 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 in the National Assembly.

Sekibo 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 candidate selection and not a 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 precedent on which any person could go to court and obtain a judgment to ridicule the good intentions of the National Assembly as an institution.”

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

While signing the amended bill into law on February 25, 2023, President Muhammadu Buhari had urged the National Assembly to expunge Clause 84(12) of the Act. But no sooner did the president sign the bill into law than the National Assembly refused to delete the controversial section. And while there was pressure on the lawmakers to honour the gentleman agreement they reached with the president,  the opposition Peoples Democratic Party (PDP), filed an ex-parte motion against the federal government at the Federal High Court in  Abuja seeking to stop attempts to tamper with the Act.

In the suit as defendants were President Buhari along with the Attorney-General of the Federation (AGF) and Minister of Justice, Senate President, Speaker of House of Representatives, Clerk of the National Assembly, Senate Leader, House of Representatives Leader and INEC.

Also joined as defendants in the suit marked: FHC/ABJ/CS/247/2022 are the Deputy Senate President, Deputy Speaker, House of Representatives, Deputy Senate Leader and Deputy House of Representatives Leader.

The main opposition party prayed the court for an order of interim injunction restraining Buhari and other defendants from refusing to implement the duly signed Electoral Act or in any manner withholding the Electoral Act from being put to use, including the provisions of Section 84 (12) of the said Act pending the resolution of the suit.

It also applied for an order of the court stopping the National Assembly from giving effect to President Buhari’s request to remove Section 84 (12) or take any step that will make the provision inoperative pending the resolution of the motion on notice for interlocutory injunction.

The grouse of the PDP is that President Buhari having assented to the bill, cannot give any directive to the National Assembly to take immediate steps to remove Section 84 (12) or any section of the Act on any ground whatsoever.

In his ruling, Justice Inyang Ekwo restrained the National Assembly from tampering with the Act. He said the Electoral Act, having become a valid law, could not be altered without following the due process of law.

Specifically, the court restrained President Buhari, the AGF and the National Assembly and other defendants in the suit from removing Section 84 (12) or preventing it from being implemented for the 2023 general election.

While the order by Justice Ekwo had sparked debate as to whether the court can bar the National Assembly from performing its duties, a Federal High Court sitting in Umuahia penultimate week, declared the disputed section of the Act as “unconstitutional, invalid, illegal, null, void and of no effect whatsoever.”

Justice Evelyn Anyadike who presided over the court directed that the section “be struck down as it cannot stand when it is in violation of the clear provisions of the Constitution.”

She ordered the Attorney-General of the Federation (AGF) to “forthwith delete the said sub-section 12 of section 84 from the body of the Electoral Act, 2022”.

The judge while delivering judgment in a suit marked FHC/UM/CS/26/2022 held that Sections 66(1)(f), 107(1)(f), 137(1)(f) and 182(1)(f) of the 1999 Constitution already stipulated that appointees of government seeking to contest elections were only to resign at least 30 days to the date of the election and that any other law that mandated such appointees to resign or leave the office at any time before that was unconstitutional, invalid, illegal null and void to the extent of its inconsistency to the clear provisions of the Constitution.

The plaintiff, Nduka Edede of the Action Alliance, had approached the court to seek proper interpretation of Section 84(12) of the New Electoral Act, 2022.

Unlike the amended Electoral Act, Justice Anyadike’s judgment, according to stakeholders, was based on the provisions of the 1999 Constitution, which requires any public office holder to only resign from office 30 days before an election to avoid conflict of interest.

This is clearly spelt out in section 137(1)(g); section 66(1)(f); section 182(1)(f) and section (107(1)(f) for President, Senate or House of Representatives, Governors and State Assembly respectively.

For the presidential election, Section 137 (1) (g) of the 1999 Constitution (as amended) provides for instance that: “A person shall not be qualified for election to the office of the President if being a person employed in the civil or public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days before the date of the election.”

As if it was waiting for the relief, hours after the judgment, the AGF’s office gave the federal government’s position through the minister’s Special Assistant on Media and Public Relations, Dr. Umar Jibrilu Gwandu.

Gwandu said the minister would accordingly give effect to the court judgment in line with the dictates of the law and the spirit of the judgment. He further pledged that the judgment would be recognised by government printers in printing the Electoral Act.

”The Act will be gazetted factoring the effect of the judgment into consideration and deleting the constitutionally offensive provision accordingly.

“The provision of Section 84(12) of the Electoral Act 2022 is not part of our law and will be treated accordingly.

“This is in line with the dictates of chapter 7, Part 4, Section 287 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) on enforcement of decisions that make it a point of duty and obligation on all authorities and persons to have the judgment of the Federal High Court, among others, to be enforced.”