BRIEFINGNOTES
The Court of Appeal sitting in Abuja last Wednesday held that Section 84(12) of the Electoral Act, 2022 contravenes the provision of Section 42 (1)(a) of the Constitution. Ejiofor Alike writes that the court’s declaration has vindicated President Muhammadu Buhari, who had requested the National Assembly to delete the controversial section to no avail
In an apparent move to whittle down the overbearing influence of governors in the emergence of candidates of political parties, the National Assembly had inserted the controversial Section 84 (12) into the Electoral Act, 2022. Section 84 (12) of the Electoral Act bars serving political office holders, including commissioners, ministers and special advisers, from participating as delegate for the primaries in their respective parties or as candidates for any election.
It was a strategy by the federal lawmakers to clip the wings of governors who use their hordes of political appointees to determine who gets the parties’ tickets for all elective positions. When the bill was submitted to Buhari for his assent, he raised the alarm on the unconstitutionality of this section.
The president had expressed concerns in his letter to the National Assembly that the clause in the Electoral Act would disenfranchise serving political officers. He could have returned the bill to the National Assembly but because the Electoral Act would be used to conduct the 2023 general election, there was a time limit allowed by the law for it to be amended before the election. This time limit was already elapsing. There was no time for Buhari to return it to the federal lawmakers unless it was not going to be used for the 2023 elections.
Again, Buhari was already being accused of insincerity to reform the country’s electoral system because of his previous refusal to sign the bill. So, he signed the bill based on the condition that the lawmakers would delete the section.
The president was said to have received adequate assurances by the leadership of the National Assembly that lawmakers would revisit the clause as soon as the president signed the bill into law.
Unfortunately, it was a shock to him when the two chambers of the National Assembly rejected the bill he sent to them to delete the illegal section.
The unanimous refusal of both chambers to remove the clause after it had been passed had obviously bruised the ego of the presidency.
However, as pressure was being mounted on the lawmakers to honour the gentleman’s 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.
The suit was marked: FHC/ABJ/CS/247/2022.
In his ruling, Justice Inyang Ekwo restrained the National Assembly from tampering with the Act. 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 on March 18 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 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. She held 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. A top chieftain of the Action Alliance (AA), Nduka Edede, filed the suit. Unfortunately, the National Assembly which passed the bill was not joined in the contentious suit.
Barely few hours after the judgment, Malami said he 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,” Malami argued.
But the Owerri Division of the Court of Appeal ordered Malami, and others to suspend the execution of the judgment of the Federal High Court, which struck down Section 84 (12) of the Electoral Act. A three-member panel of the appellate court led by Justice Rita Pemu, made the order in a ruling granting a request by the PDP to be joined as a party to the appeal challenging the judgment of the lower court.
The appellate court, in its ruling, ordered parties to refrain from taking steps capable of frustrating the pending appeal against the contested judgment.
But respite came the way of Malami when the Court of Appeal on Wednesday declared the controversial Section 84 (12) of the Electoral Act as unconstitutional even though it set aside the judgment of a Federal High Court, Umuahia, which voided this provision.
The appellate court held that the lower court lacked the jurisdiction to entertain the suit and subsequently voided the judgment of Justice Anyadike.
In a unanimous decision, the three-member panel of the appellate court presided by Justice Hamma Barka held that the Federal High Court, Umuahia, had no jurisdiction to have entertained the case in the first case because the plaintiff, Edede, did not have the legal authority to initiate the suit.
The panel acknowledged that there are divergent views on what they should do in the circumstance, “having arrived at the decision that the lower court lacked the necessary jurisdiction to entertain the action, in the first leg.”
While they submitted that there was the need and duty to avail the apex court a view on the matter being agitated, the panel subsequently delved into the merit of the suit. It held that the said Section 84 (12) was unconstitutional because it breaches Section 42 (1)(a) of the Constitution by denying a class of Nigerian citizens their right to participate in an election.
The court held that “the provision of Section 84(12) of the Electoral Act 2022 specifically targets political appointees and disqualified them from being voting delegates or from being voted for at convention or congress of any political party for the purpose of the nomination of candidates for any election. This provision does not disqualify any other class of person.”
“Section 84(12) of the Electoral Act expressly subjects them to disabilities and restrictions from other citizens of Nigeria, other communities, political interests and political views and thereby contravenes the provision of Section 42 (1)(a) of the Constitution and thereby null and void,” Barka said.
With the Appeal Court’s decision, Buhari has been vindicated at last.
