The last has certainly not been heard of the controversy over the deletion of Section 84(12) of the Electoral Act 2022, with human rights lawyer, Mr. Femi Falana, accusing the Attorney General of the Federation, Mr. Abubakar Malami, of manipulating the Federal High Court into issuing conflicting decisions on the legislation, Alex Enumah writes
A Senior Advocate of Nigeria (SAN), Mr. Femi Falana, last week stirred the hornet’s nest when he accused the Attorney General of the Federation and Minister of Justice, Mr. Abubakar Malami (SAN), of manipulating the Federal High Court to issue conflicting orders on the validity of Section 84(12) of the Electoral Act, 2022.
Falana said Malami pretended not to be aware of the restraining order of the Federal High Court in Abuja barring him from tampering with the legal provision. He accused Malami of ignoring the Federal High Court order and vowing to implement that of the Umuahia division of the court, which ordered the deletion of the clause from the law.
In a statement providing some details of the decisions of three divisions of the Federal High Court on the matter, Falana blamed Malami for allegedly manipulating the court into issuing the conflicting orders. He said Malami, cannot, therefore, pick and choose which of the orders to obey or disobey.
“It is trite that the Attorney-General cannot choose and pick the orders of the court to obey or disobey. More so, when it is undoubtedly clear that the Attorney-General deliberately set out to manipulate the Federal High Court to issue conflicting orders in a desperate move to annul section 84(12) of the Electoral Act,” Falana said.
In a decision that comfortably align with President Muhammadu Buhari’s earlier protest against the controversial legal provision, the Umuahia Division of the Federal High Court in Abia State, had on March 18, nullified Section 84(12) of the Electoral Act.
Section 84(12) of the Electoral Act 2022: “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 provision implies that except a political office holder or public servant resigned from office three months before the commencement of party primaries, he or she, including ministers, commissioners, or other officeholders, was barred from taking part as delegates in primaries of political parties, and therefore cannot be a candidate for elections.
In her verdict, the judge, Justice Evelyn Anyadike, who presided over the court, held that the section was “ unconstitutional, invalid, illegal, null void and of no effect whatsoever” and ordered the AGF who was the sole defendant in the suit, to “forthwith delete the said Subsection 12 of Section 84 from the body of the Electoral Act, 2022.”
The judge anchored her decision on the grounds that the provision conflicted with the constitutional provision that already gives political appointees who intend to contest in an election to resign at least 30 days to the election.
She added 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 judge consequently ordered the AGF to “forthwith delete the said sub-section 12 of section 84 from the body of the Electoral Act, 2022”.
While many lawyers had faulted this reasoning, arguing that political appointees are not part of the category of persons required by the constitution to resign at least 30 days to the election, Malami has shown extra-ordinary interest in ensuring the striking down of the Section 84(12) of the Electoral Act, which would have forced him out of office early to realise what is believed to be his ambition to contest the 2023 governorship election in Kebbi State.
But chronicling two previous rulings of the Federal High Court in Abuja and Ibadan, Oyo State, on the same matter, Falana said Malami desecrated the office of the AGF by engaging in “forum shopping” to get a favourable verdict.
“No doubt, this is the first time in the entire history of Nigeria that the office of the Attorney-General of the Federation has engaged in forum shopping for favourable orders of the Federal High Court or any other court. It is high time the dangerous manipulation of the Federal High Court was stopped as the nation prepares for the 2023 General Elections,” a statement issued on Sunday by Falana read.
The human rights lawyer pointed out that while the Abuja court barred Buhari, the AGF and the National Assembly from tampering with the newly amended Electoral Act, the Ibadan division of the federal court declined jurisdiction on the matter.
On March 8, 2022, Justice Inyang Ekwo, the judge, had in a ruling on an ex parte application by the opposition Peoples Democratic Party (PDP), held that the amended Electoral Act, having become a valid law, must not be unduly tampered with.
Specifically, the court restrained President Buhari, the AGF and the National Assembly and other defendants in the suit from removing section 84 (12) of the Electoral Act or prevent it from being implemented for the purpose of 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 section 84(12) of the Act as “unconstitutional, invalid, illegal, null, void and of no effect whatsoever,” to the joy of Malami and his cohorts.
However, Falana lamented that when the suit with the same issues arose in Umuahia, the AGF who was the sole defendant in the case, refused to draw Justice Anyadike’s attention to the two preceding rulings of her colleagues in Abuja and Ibadan. He listed the other suits in which the two preceding rulings had been delivered to include one filed in Abuja with suit number, FHC/ABJ/CS/247/2002 (PDP versus President, Federal Republic of Nigeria & 8 others). The other, with suit number, FHC/IB/CS/32/2022, he said, was filed in Ibadan by Chief Oyewole Bolanle against the AGF.
“From the foregoing, it is crystal clear that even though the two lawyers who represented the Plaintiffs in Suit Nos FHC/IB/CS/32/2022: Chief Oyewole Bolanle v Attorney-General of The Federation and FHC/UM/CS/26/2002: Chief Nduka Edede v Attorney-General Of The Federation are based in Ibadan, Oyo State and Umuahia, Abia State, the two cases filed by them were similar in every material particular.
“Hence, the two questions formulated for determination and the four similar reliefs sought by their clients in the two cases filed at the Ibadan and Umuahia judicial divisions of the Federal High Court are in pari material.
“Even though the plaintiffs are different, the Attorney-General of the Federation is the sole defendant in both cases. It is doubtful if the similarities in the two cases can be said to be mere coincidence,” the human rights lawyer said.
He said the AGF, despite being a defendant in all the cases, did not draw the attention of both Ibadan and Umuahia divisions of the Federal High Court to the Abuja division’s restraining order.
“Neither did the Attorney-General disclose to the Umuahia judicial division of the Federal High Court that the Ibadan judicial division had struck out a similar case for want of locus standi,” he added.
He also said the judge in the Umuahia division “ought to have struck out the fresh case before her as it constituted a gross abuse of court process” given that the case pending at the Ibadan judicial division of the court “was well reported in the print and electronic media”.
Hours after the court in Umuahia handed down its verdict, Malami, as if he was waiting for the relief, quickly issued a statement vowing to implement Justice Anyadike’s orders by deleting the legal provision which he described as “offensive” from the law.
But Falana tackled him querying the speed in enforcing the latest ruling while pretending not to be aware of the earlier restraining order issued against him and others over the same issue. Should Malami go ahead to delete the provision as he vowed to do, Falana said the AGF risks facing the consequence of contempt of court.
The senior advocate argued that unless the valid and subsisting order of the Abuja Judicial Division of the Federal High Court is set aside either by the trial judge or an appellate court, the AGF cannot delete section 84(12) of the Electoral Act.
“We submit, without any fear of contradiction, that unless the valid and subsisting order of the Abuja Judicial Division of the Federal High Court is set aside either by the trial Judge or an Appellate Court the Attorney-General of the Federation cannot delete section 84(12) of the Electoral Act,” Falana contended.
But Malami has denied Falana’s allegations, insisting that his actions are all in compliance with the law. A statement by his spokesperson, Dr. Umar Gwandu, read in part: “It only takes the figment of the imagination of mischief makers to think or assume that the Attorney General of the Federation and Minister of Justice will stoop so low to do what they claimed. The Attorney General of the Federation is a strong advocate of equality before the law and non-discriminatory universal application of laws that do not disenfranchise citizens and not contradict the provisions of the Constitution and the extant laws.”
While pledging Malami’s “commitment to ensuring justice, equity, fair play” in the discharge of his responsibilities, Gwandu said the AGF “was made a defendant in the case” concerning the new Electoral Act.”
Malami had previously insisted that his position on the controversial legal provision was in defence of constitutionalism and protection of the constitutional rights of every Nigerian to vote and be voted for in elections.
