Section 84(12): Appraising the Validity Tussle between the Nigerian Constitution and the Electoral Act

By Onifade Adeolu

Introduction

Recently on May 20 2022, the national Assembly was reported to have pressured president Buhari on signing the amendment of Section 84(8) of the electoral act, which some analyst have described as a way of altering the electoral process in the middle of the game. This simultaneously is followed by the Supreme Court joining Rivers state government to the suit instituted by the Attorney General of the Federation and the Nigerian President on April 29^th 2022. The suit which was marked SC/CV/504/2022 was filed in other to nullify section 84(12) of the electoral act and to further render the section inconsistent with the provisions of the 1999 constitution of the federal republic of Nigeria.

Prior to this the electoral Act was signed into Law by President Muhammadu Buhari, on February 25 2022; the electoral Act which was first up for amendment during the 8^th republic was unsuccessful under the leadership of Senator Bukola Seraki and former speaker Yakubu Dogara. However law Makers in the 9^th Assembly successfully amended the Act which President Muhammadu Buhari withheld his assent back in November 2021 due to a plethora of issues ranging from conducting primary election, Security Challenges and possible manipulations of electoral processes by the political players as part of the reasons for his decision not to assent to the bill. However on March 1, President Buhari wrote a letter to both chambers of the National assembly asking them to delete section 84(12) of the Electoral Act.

Fast forward to March 18, 2022, a Federal high court sitting in Umuahia, Abia state, declared section 84(12) of the newly amended electoral act 2022 as illegal and a violation of the Provisions of certain sections in the 1999 constitution of the federal republic of Nigeria as amended. The judge Justice Evelyn Anyadike in her ruling held that the following sections 66(1) (f); S 107(1); S 137(1)(g); S 182(1)(g) of the 1999 constitution already stated that appointees of the 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. This eventually brings us back to the Attorney General of the federations and president Suite which has the Rivers state government joined it as plaintiffs, expected to be heard before the court on Thursday, May 26^th 2022 by the Supreme Court. This begs the question on what is the validity of Section 84(12) of the Electoral Act 2022.

WHAT REALLY DOES SECTION 84(12) OF THE ELECTORAL ACT CONTAINS?

Section 84(12) of the Electoral Act, it states that:

No Political appointees at any level shall be a voting delegate or be voted for at any convention or Congress of any political party for the purpose of the nomination of candidates for any election

The implication of the above only indicates that political appointees like ministers, commissioners, Special Advisers, and Personal Assistants be it at the federal or state level are not capable of being a voting delegate or voted for in a political party primary. As a result of these provisions outlined in section 84(12) of the Electoral Act, it only means that such people mentioned above cannot be voted in a political parties primaries and thus he or she cannot be a candidate for an election, thereby leading to the possible disenfranchisement of citizens seeking political ambitions.

The only way such people can become a candidate is if He/She resigns from the Political appointment before the primaries of the political party. Furthermore, the political parties are mandated by Section 29(1) of the electoral Act 2022, to ensure that their Primaries are conducted and the list of their candidates is submitted at least 180 days, that is 6 months before the date appointed for the general elections.

According to history, some politicians have recently been able to vie for political positions while holding appointed political positions, or because some particular incumbent ministers are currently trying to vie for positions while still holding on to the ministerial appointment, this has generated a  whole lot of conversation and debates in recent week. Hence this has led to the call for Section 84(12) to be deleted from the Electoral Act. Relying on the provisions of the 1999 constitution, Justice Anyadike in Umuahaia Federal High court declared that Section 84 (12) of the electoral Act 2022, be struck out.

LEGAL IMPLICATIONS OF SECTION 84(12) OF THE ELECTORAL ACT FOR POLITICAL PARTIES.

In lieu of the provisions of section 84(12), Section 84(13) Provides that:

Where a political party fails to comply with the provisions 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 the issue.

Thus where a political party violates the provisions of the electoral act in respect of political appointees in Primaries, the parties’ candidates shall be excluded from the General elections for which the Primary election was conducted.

This, therefore, means that political parties must be thorough in their screening process of delegates and aspirants, by ensuring that all political appointees participating in any primary election show credible evidence that they have resigned if not this could serve as a bane to the collective interest of the political party in fielding a candidate for that general election, and if at all they scale through the electioneering process and subsequently win, it could basically be a ground for nullification of the election, which will result in giving the political party with the second-highest vote cast an opportunity of emerging as a candidate, as we see in the case of APC & ORS v. Karfi &ORS(2017) LPELR-47024 SC.

DEMYSTIFYING THE CONSTITUTIONALITY OF SECTION 84(12) OF THE ELECTORAL ACT 2022.

For weeks, the constitutionality of Section 84(12) of the Electoral Act 2022, has generated a lot of controversies, in fact, President Muhammadu Buhari, protested the constitutionality of this controversial provision when making a public presentation of the newly assented electoral law.

The opposition to its retention has been largely argued on the basis that it violates the provision of the 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.

In giving 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 public service of the federation of any state and has not resigned, withdrawn or retired from the employment at least 30 days before the date of the election.

This means that any employed civil or public servant intending to contest for election in Nigeria must have at least relinquished his or her position at least 30 days before the date of the election. However, another question would spring upon who is a Public Servant? And those political appointees are they Public Servant 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 each house of the National Assembly
• Member of the staff of the Supreme court, the court of appeal, federal high court E.tc
• Member of staff of any commission or authority established for the federation by this constitution or by any act of the national assembly
• The staff of any area council
• The staff of any statutory corporation established by any act of the national assembly
• The staff of any Educational institution established or financed by the federal government
• The staff of any company or enterprise in which the government of the federation or its agency owns controlling shares or interests
• Any member of the Nigerian armed forces of the federation or the Nigerian police force or other government security agencies established by law

From the above, it can be deduced that political appointees are not included. And the law is settled like the waters of Babylon, that is the constitution follows the Latin maxims expression unius personae vel rei, est exclusion alterius or inclusion unius est exclusion or exclusion unius est exclusion alterius, which means the express mention of one thing is the exclusion of another or the inclusion of one is the exclusion of another. This maxim was a principle used in the MILITARY GOVERNOR OF ONDO STATE v. ADEWUNMI (1988) 3 NWLR (PT. 82) 280 and also subsequently in the case of ATTORNEY-GENERAL BENDEL STATE v. AIDEYAN (1989) 4 NWLR (PT 118) 646

The major premise established by the constitution it is quite clear that the definition of public servants is not within the confines of political appointees, and therefore can be said that such political appointees are not public servants.

The 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, Olukayode Ariwoola, JCA (as he then was)

Said inter-alia:

The fact that section 318(1) of the constitution listed those it classifies as person in the public as persons in the public service means that others not listed, such as, the chief of staff and civil commissioner are not to be regarded as a person in the public servants envisaged by section 182(1)(g) of the constitution. The fact that a person earns a salary and allowances lives in a government quarter and drives in a government vehicle does not, without more, make such a person an employee of the government in the public service of the state as provided.

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.

In a recent case of Oni v FAYEMI & ORS (2019) LPELR-46622(CA) where there was a controversial issue of whether a minister of the federal republic of Nigeria Is capable of being an employee in the public service and must resign before he is allowed to run for election, the court held that a minister is 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.

Conclusion

With the foregoing premise, it is clear, it can be safe to say 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 Political appointees have no permanent and established service contract in the public service and as such cannot be hired or 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 the 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 power 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 the 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 laws 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 the 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 a 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 a 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.