Otunba Ben Oguntuase
The justices at the Court of Appeal, in their judgement on February 12, 2019, in the Segun Oni vs Fayemi eligibility case, said: “The Chambers Dictionary defines the noun employee as a person employed for wages or salary.” Wherever they got this from, let it also be noted that The Chambers Dictionary in its most current edition also defines the noun employee as “a person who works for another in return for payment.”
The justices concluded that “a Minister is not employed for wages or salary,” and therefore “a Minister, even though, in the public service of the federation was not an employee in the public service.” Their chosen reference dictionary, Chambers, states that an employee is “a person who works for another in return for payment.”
According to Collins English Dictionary, “an employee is a person who is paid to work for an organisation or for another person.”
Even an employee on temporary contract is still an employee!
According to Wikipedia, “salary is the periodic compensation received for work done usually on monthly basis.”
Wikipedia extensively defined wage as “a monetary compensation (or remuneration, personnel expenses, labour) paid by an employer to an employee in exchange for work done. Payment may be calculated as a fixed amount for each task completed (a task wage or piece rate), or at an hourly or daily rate (wage labour), or based on an easily-measured quantity of work done.
Wages are part of the expenses that are involved in running a business.
Payment by wage contrasts with salaried work, in which the employer pays an arranged amount at steady intervals (such as a week or month) regardless of hours worked, with commission which conditions pay on individual performance, and with compensation based on the performance of the company as a whole. Waged employees may also receive tips or gratuity paid directly by clients and employee benefits which are non-monetary forms of compensation. Since wage labour is the predominant form of work, the term “wage” sometimes refers to all forms (or all monetary forms) of employee compensation.”
Employment is a relationship between two parties, usually based on a contract where work is paid for, where one party, which may be a corporation, for profit, not-for-profit organization, co-operative or other entity is the employer and the other is the employee. Employees work in return for payment, which may be in the form of an hourly wage, by piecework or an annual salary, depending on the type of work an employee does or which sector she or he is working in. Employees in some fields or sectors may receive gratuities, bonus payment or stock options. In some types of employment, employees may receive benefits in addition to payment. Benefits can include health insurance, housing, disability insurance or use of a gym. Employment is typically governed by employment laws, regulations or legal contracts.
It should never have been difficult to understand that Article 2 of the 2014 Guidelines was never intended for civil servants but political office holders at executive level. Political parties don’t usually set the rules for civil servants. It was clearly meant for politicians on full-time appointments.
On the provisions of the Constitution and the party guidelines: The Constitution in Section 182 (1) states that: No person shall be qualified for election to the office of governor of a state if
(g) Being a person employed in the public service of the federation or of any state, he has not resigned, withdrawn or retired from the employment at least 30 days to the date of the election; or
Similarly, the party in Section 2 of its Guidelines titled Minimum Requirements prescribes that:
Any aspirant seeking public office on the platform of the party shall not have:
- Been convicted or sentenced for an offence involving dishonesty or found guilty of contravention of the Code of Conduct within a period of 10 years before the date f the election.
- Remained as an employee of the public service within 30 days preceding the date of an election.
- Been convicted for embezzlement or fraud by a judicial commission of inquiry or a tribunal set up under the Tribunals of Inquiry Act, or any other law by the Federal or state government which conviction has been accepted by the Federal or state government.”
The Constitution and Party Guideline in this respect are virtually the same as far as intention is concerned. It is clear that what the party did was to repeat the provision of the constitution in its guidelines with the guidelines emphasising “aspirant” meaning that the election under reference is the primary election which features aspirants and not candidates.
Recognising that election is a process, the constitution does not make any explicit distinction by way of reference to either aspirant or candidate. This provides sufficient latitude for the parties to be more explicit in their guideline without being in conflict with the provisions of the constitution.
The constitution says “…30 days to the date of the election.” There are two elections – the primary and the general. The 1999 Constitution (as amended) did not state which election it refers to but we can deduce it is referring to the general election because of the use of the word “candidate.” It is in the same token that we can deduce that the party guideline refers to the primary election because of the use of the word “aspirant.”
The real intention of the framers of the guideline:
It is inconceivable that the party will be making laws solely for political participation for civil servants whose employments are governed by Civil Service Rules. Civil servants participation in politics are well covered by these rules. Who the framers of the guidelines had in mind could only have been those appointed into public office. Elected officials are not included because their tenures have been specifically provided for in the statutes. Other public servants have their provisions in their code of employment and could not have been the category intended by the framers of the guidelines. For example, a commissioner of police is a public servant whose employment is regulated by the Police Service Rules which clearly specifies what steps he/she has to take to participate in electoral politics and this is without prejudice to whatever internal requirements a political party may impose.
If because of Section 318(1) of the 1999 Constitution (as amended), Section 2 of APC’s 2014 Guidelines for the Nomination of Candidates for Public Office is not applicable to a minister while being an aspirant, then the same Section 318 (1) of the Constitution will make Section 182 (1) of the Constitution not applicable to a minister while being a candidate for public office. This could not have been the intention of the framers of the two documents.
It is the desire of the framers of the constitution and those of the party guidelines to ensure a level-playing field for all contestants. The framers certainly never intended to underwrite for public officers such as a minister of the Federal Republic or a commissioner in a state the risk of electoral contest using the public office they occupy in the clear absence of a comparable facility for other contestants. This is part of the true meaning of the phrase “level-playing field.”
The justices used Black’s Law Dictionary to define the word “includes” in S.318(1) of the constitution but resorted to the pedestrian level of using The Chambers Dictionary (and not even the current edition) to obtain the definition of the word “employee.” Even when that dictionary defines “employee as a person employed for wages or salary”, the Appeal Court justices concluded that a minister of the Federal Republic is not employed for salary. So what is the classification of the income of a minister while serving full time as a public officer? The judges ducked under the presumed nature of the tenure of minister when they said a minister “has no permanent and established service contract in the public service. So service as minister is not based on a permanent-established contract of service?” Yet we all know that a minister is not a consultant to government. We also know that in many instances, there are temporary employees (who can also be summarily dismissed) even in the public service!
Therefore, the term employee cannot be defined alone by the nature of the tenure of the service contract, be it permanent or temporary. In any event, the Code of Conduct and the Oath of Office a minister takes are all part of the elements of the minister’s service contract. The question to wonder about is, was it simply a matter of convenience that the Appeal Court judges gave a narrow interpretation of the word “employee,” quoting from an old edition of a dictionary which has a very current edition and avoided altogether any reference to Black’s Law Dictionary which they used to define the word “includes” earlier in their judgement? Or did this narrow or restrictive approach become so expedient given the proximity of the judgement to the presidential election?
A critical element lacking in the decision of the Court of Appeal judges is that they failed to ask themselves and resolve the query:
- “What is the purpose (or objective) behind the party guidelines to the effect that an aspirant being an employee in the public service of the state or the federation cannot contest a primary election?”
Had they properly guided themselves in this way, they would naturally have been led to the next query.
“Which class of person does this provision of the party guidelines target or contemplate?”
And this second query should have inexorably led to the last and final query
“Does a serving minister the Federal Republic of Nigeria come within the contemplation of the guildlines?”
This line of inquiry would naturally have eliminated
1.Civil Servants subject to the Civil Service Rules of state or Federal governments
2 Persons in the private sector who are employees of companies
3 Academics and lecturers on full-time service contracts
And every other person(s) whose term of employment either requires full-time service, on a salary and the terms of the employment are such that you cannot be in such employment and participate in electoral politics. All these classes of persons are regulated by the terms of the employment itself.
Given the above scenario, it is inconceivable that the party guidelines would be inapplicable to a serving minister or a political office holder whether employed or appointed and whether remunerated or not.
It is simply absurd and contrary to good sense and public order and due process that whilst being a minister, a person should be permitted to be an aspirant and to contest for office of governor of a state in a party primary. To assert otherwise would defeat the intention of the Party Guidelines (which must be to ensure that all aspirants contest under fair rules that ensure some measure of equality before the electorate) in other words, a “level-playing field.”
The failure of the Court of Appeal to embark on and discover the intention behind the party guidelines and then to give effect to that intention is a regrettable abdication of their judicial duty.
As the final appellate court, the Supreme Court is well positioned to correct this grievous lapse of the Court of Appeal and this is the challenge the Segun Oni appeal to the Supreme Court represents.
Otunba Ben Oguntuase writes from Lagos