The Political Spectre Looming in the Entire Amended Clause

NASS v BUHARI
I have, as always, in this outing, tried to avoid discussing the politics of the amendment brouhaha, and concentrate only on my dissertation of the law on the subject-matter. Otherwise, if we were to look at the politics of it, many questions immediately spring up for answers. For example, when did we ever witness the 9th NASS oppose President Buhari’s budgets, bills, letters, actions or requests? When did the NASS ever challenge or overrule Buhari’s nepotic, prebendalistic, tribalistic, cronyistic, religious and sectionalistic appointments in the last seven years? I cannot remember. Or, can you? When did the “Mr-take-a-bow” Senate (my pet name for the present red chamber, for never ever properly screening public appointees – always telling them to take a bow and go); and for always kowtowing to Mr President’s serial requests for humongous loans that haemorrhage Nigeria, ever oppose Buhari? We are talking about loans that await us like booby traps and sentinels, at the door steps of generations yet unborn. I cannot remember when the NASS ever opposed Buhari. Or, can you?
The Role of the Attorney-General in this Suit
When did the Attorney-General of the Federation, Abubakar Malami, ever refuse to appeal a judgement and spontaneously act on the judgement with such automatic alacrity, in obeying Justice Anyadike’s order of court, as we just witnessed? Remember how court judgements and orders were serially disobeyed in the El Zakzaki and Ibrahim Dasuki cases? Would Malami have taken the same steps, if the judgement had gone against him and the Government? I think not.

The Issue of Joinder
Why were the NASS (which initially passed the law), and INEC the implementor of the law not joined in the suit, at least, as Interested and Proper parties, even if not as Necessary parties? See GREEN v GREEN (1987) NWLR (PT 61) 481.

Voidance or Deletion?
Why would the Attorney-General seek to delete the offensive Section 84 (12), as ordered by the Judge? A court’s duty stops at voiding an Act or law; but not to delete or repeal it. That is a job for the Legislature or the Law Revision Commission. When did the Attorney-General (a top player in the Executive) possess statutory powers to delete Acts of the Legislature, when laws are normally gazetted by the Legislature after the President and Governor have respectively signed bills into law? One should have thought that merely voiding the Act was sufficient until future amendment of the Act and consequential deletion of the offensive section, based on the court’s judgement in striking it down.

Venue of the Suit
By the way, why was the case filed at FHC in far away Umuahia, Abia State, when the Attorney-General works and resides in Abuja; and when the NASS and INEC (interested parties) are also located in Abuja? Was it an act of forum-shopping and Judge-shopping? I do not know. Or do you?

Locus Standi
On locus standi, I do not agree with those who questioned the locus standi of Chief Nduka Edede, the Plaintiff. Every Nigerian has the locus standi, to question the validity of any statute he believes is unconstitutional.
In the case of AKINPELU & 20 ORS v AG OYO STATE (1985) 5 NCLR 557, it was held as follows:
“In my view, the question of locus standi vis-à-vis our present Constitution, cannot be adequately thrashed out without considering the effect of Section 4(8) of the Constitution…. In other words, the subsection places on the court a supervisory jurisdiction over the legislative powers by the National Assembly and a House of Assembly. As any citizen is affected by a new law enacted by the legislature, it seems to me therefore, that such citizens should be accorded the right to challenge the constitutionality of such enactment. In the case in hand, I accept his evidence adduced by the Plaintiffs, that they reside in Lagelu Local Government and that they pay rates to Lagelu Local Government Council”.
In line with this trend of thought, the court in EJEH v AG, IMO STATE (1985) 8 NCLR 390, relied on the causa célèbre of ABRAHAM ADESANYA v PRESIDENT OF THE FEDERATION (1981) 2 NCLR 358, and laid down three principles thus:
“ (1) It behoves any person who is convinced that there is an infraction of the provisions of the Constitution, to be able to go to court and ask for appropriate relief, if relief is required.
(2) A Defendant should be wrong in challenging the locus standi or the capacity of a Plaintiff to sue, when the cause of action is intended to keep the law and the Constitution of the country serene and inviolate.
(3) Any person whose interest, obligation or rights are regulated by any law of general application is an interested party in a cause, matter or suit involving the determination of the validity or constitutionality of such law, notwithstanding that such a person is not made a party in the proceedings”.
In the said case of ADESANYA (supra), cerebral Justice Kayode Eso, JSC (of blessed memory) had held, most lucidly that:
“It has to be accepted that our Constitution has undisguisedly put the Judiciary in a pre-eminent position, a position unknown to any other Constitution under the Common Law, where the Judiciary has to see to the correct exercise of the legislative powers by the National Assembly”.    
There are too many questions begging for answers, in the way and manner the amendment was handled.

Way Out of the Apparent Conundrum
To avoid the present confusion and apparent bad blood generated by the protagonists and antagonists of Section 84(12), the following steps could be taken immediately:
Firstly, NASS should, in its ongoing Constitutional amendment exercise, amend Section 66(1)(f) of the Constitution, to specifically include the following category of persons: “all political appointees by whatever name called” , as persons who must give 30 days notice to be able to contest election.
Secondly, NASS itself, political parties, politicians, Lawyers, NGOs, members of the Civil Society and all those who are aggrieved by Justice Evelyn Anyadike’s judgement, should apply to the Court of Appeal for joinder in the suit as interested parties to force an appeal, or prosecute any appeal arising therefrom. This is legally permissible under the Constitution (Section 243), if the party sought to be joined can show that he ought to have been joined in the suit. Court of Appeal Act and Rules. See the cases of MUDASIRU & ORS v ONYEARU & ORS. (2013) LPELR- 20354 (CA); KATAMI v KATAMI (2018) LPELR- 46417 (CA); MOUKARI & ANOR v WILLIAM & ORS (2021) LPELR-54860 (CA); IN: RE ELEMA (2018) LPELR- 46233 (CA); WAZIRI v GUMEL (2012) LPELR-2843 (SC). I believe such an application will be granted, without much ado. Thirdly, where the Attorney-General wilfully refuses to appeal the judgement, such aggrieved persons can challenge the deletion of Section 84(12) in a fresh suit. Let us develop our jurisprudence. Let us expand new vistas, and expound the frontiers of the law through judicial decisions. Let us situate our arguments within the proper legal regime and constitutional organogram of our laws, devoid of political sentiments, emotions and morality. There is a wide gulf between the “lex lata” (the law as it is) and the “delege ferenda” (the law as we would want it to be). I have observed that, many analysts usually anchor their arguments on morals and ethics. Jurisprudence and law are not morality. Such moralists are advised to seek refuge at the pulpits in our churches, monasteries; or mosques; or even shrines. But, certainly not hard-cold law. (Concluded).        

THOUGHT FOR THE WEEK
“Justice in the life and conduct of the State is possible, only as first it resides in the hearts and souls of the citizens”. (Plato)