By Obinna Kalu

One of the selling points of President MuhammaduBuhari during the 2015 presidential election campaign was his promise to champion the reformation of the electoral process, if elected, to guarantee the conduct of free, fair and credible elections. However, the initial attempt to reform the electoral system under his administration hit the rocks as he declined assent to the Electoral Amendment Bill of 2018 on the ground that the period the bill was passed and transmitted to him for assent was too close to the general election of 2019.

On February 25, 2022, President Buhari won the hearts of many Nigerians with the signing of the Electoral Act Amendment Bill into law. The Electoral Act, 2022 (hereinafter called “The Act”), thus repeals the Electoral Act No. 6, 2010, and it regulates the conduct of federal, state and area council elections. The Act, among other provisions, provides for the restriction of the qualification for elective office to relevant provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended), hereinafter called “the Constitution”; use of card readers and other technological devices in elections and political party primaries; timeline for submission of list of candidates; criteria for substitution of candidates; limit of campaign expenses; omission of names of candidates or logo of political parties; consensus candidature and non-eligibility of political appointees as voting delegates or aspirants.

From the day the Act came into force, divergent legal opinions have been expressed on the legality or otherwise of Section 84(12) of the Act. The section, which seeks to provide a level playing field for all political office holders, provides that “No political appointee at any level shall be 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.”

In fact, before assenting to the bill, President Buhari had placed a caveat on the perceived unconstitutionality of the section. In the President’s words, “It is imperative to note that the only constitutional expectation placed on serving political office holders that qualify, by extension as public officers within the context of the Constitution, is resignation, withdrawal or retirement at least 30 days before the date of the election…”

Sequel to the above pronouncement, a few days after signing the bill into law, President Buhari sent a letter to the National Assembly requesting it to consider immediate amendment of the Act by deleting Section 84(12) on the ground that it was ultra vires the Constitution by way of importing blanket restrictions to serving political officeholders.

Despite the reservation expressed by the President, the survival of the section was given ajuristic lifeline and flavour when Justice Inyang Ekwo of the Federal High Court, Abuja, in a ruling on an ex parte application filed by the Peoples Democratic Party (PDP), ruled that the “Electoral Act, having become a valid law, could not be altered without following due process.”

Consequently, the court barred President Buhari, Attorney-General of the Federation and Minister of Justice, and the Senate President from tampering with the new Electoral Act.

On March 10, 2022, the Senate overwhelmingly refused the request of the President to amend the Act. The rejected bill was titled “A Bill for an Act to amend the Electoral Act 2022 and for Related Matters, 2022.”

Thus, the Bill abruptly ended its journey to second reading and passage. The audacity of the Senate to “kill” this Bill came to many Nigerians as a surprise, given the unenviable and disgraceful tag of the 9thNational Assembly as a “rubber stamp” of the executive. In reaction to the rejection of the Bill by the Senate, the Attorney-General disclosed that Federal Government would explore all necessary options available concerning the Act, like re-presenting it to the National Assembly for amendment, judicial option, or accepting it as it was.

Striking down of Section 84(12) of the Electoral Act

On Friday, March 18, 2022, while delivering judgment in the suit marked FHC/UM/CS/26/2022, Justice Evelyn Anyadike of the Federal High Court, Umuahia, declared “that   Section 84(12) of the Electoral Act, 2022, cannot validly and constitutionally limit, remove, abrogate, disenfranchise, disqualify, and outs the constitutional right or eligibility of any political appointee, political or public office holder to vote or be voted for at any Convention or Congress of any political party for the purpose of nomination of such person or candidate for election, where such person has ‘resigned, withdrawn or retired’ from the said political or public office, at least 30 days before the date of the election”.The Court consequently ordered the Attorney-General to immediately expunge Section 84(12) of the Electoral Act on the ground that it was unconstitutional, invalid, illegal, null, void and of no effect whatsoever and cannot stand, as it was in violation of the clear provisions of the Constitution.

According to the judgment, “Sections 66(1)(f), 107(1)(f), 137(1)(g) and 182(1)(g) of the 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 office at any time before that was unconstitutional, invalid, illegal null andvoid to the extent of its inconsistency to the clear provisions of the Constitution.”

The above judgment waswidely greeted with mixed reactions from the public. While some people applauded it as sound and in tandem with extant laws, others view it as mere judicial shenanigan.

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As I shall demonstrate using legal authorities in the course of this essay, my view is that the judgment is laudable only to the extent of declaring Section 84(12) of the Act unconstitutional, null and void. On a flipside, I consider the aspect of the judgment that gave consequential order and power to the Attorney-General to immediately expunge Section 84 (12) of Act as defective and unnecessarily overreaching.

Propriety of the consequential order to the Attorney-General to delete Section 84(12) of the Act

The order and power given by the Court to the Attorney-General to delete Section 84(12) of theAct clearly amounts to usurpation and undue interference in the constitutional powers of the National Assembly. It would have just been enough if the court had stopped at invalidating the infringing Section 84(12), instead of clothing the Attorney-General with powers of lawmaking, which the Constitution in express terms exclusively reserves for the National Assembly at the federal level. Section 4(1) provides that, “The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation, which shall consist of a Senate and a House of Representatives.”

Section 4(2) provides that, “The National Assembly shall have power to make laws for the peace, order and good government of the Federation or any part thereof with respect to any matter included in the Executive Legislative list set out in Part 1 of the second schedule to this Constitution.”

The interpretative effect of the foregoing provision is that “absolute power to make laws for Nigerians, or alter relevant sections of the Constitution, as provided by the Constitution lies on the powers to any part of the National Assembly.”

Again, it is also instructive to note that the said power donated to the Attorney-General to delete the infringing section is in clear conflict with an earlier order made by a court of coordinate jurisdiction presided over by Justice Inyang Ekwo barringthe Attorney-General and two others from tampering with the Act.

The vexed issue of interpreting the meaning of public service, public servants and political appointees

Going forward, it will be essential to have a careful look at Section 318(1) of the Constitution so as to have a clear picture of the provisions, which form the basis of my submission that the aspect of the judgment which declared section 84(12) of the Act null and void, is flawless. Section 318(1) defines public service of a state/federation as service“in any capacity (emphasis mine) in respect of the Government”and it “includes service”(emphasis mine) of  Clerk or other staff of the legislature; judiciary staff;member or staff of any commission or authority established law;staff of any area or local government council;  staff of any statutory corporation; staff of any educational institution established or financed principally by a government ;  staff of any company or enterprise in which the government or its agency holds controlling shares or interest.

A critical analysis of Section 318(1) reveals that the category of persons mentioned thereof does not mean that the list of the group of persons who can be recognized as public officers is closed. The deployment of the phrases,“service of the State/Federation in any capacity” and “includes services as”,implies that there is no intention by the draftsmen of the Constitution to close upthe group of persons to be regarded as “public officers” under the section. Any contrary interpretation will result in manifest absurdity or repugnancy. Therefore, the most important factor should be to determine if the person in question is employed/appointed to perform a public service and paid from a public/government treasury either by the state or federal government. This is the implied meaning of the section and should be so applied to avoid a negation of the implied intention of the drafters of the Constitution.

There is no doubt that political appointees, as captured in section 84(12) of the Act, are not career public servants, but they are in the class of persons performing public service in the eyes of section 318(1) of the Constitution. Even though they may not be core public servants whose employments are protected by statutes, they are nonetheless operationally “in the public service” as contemplated by the combined interpretations of sections 66(1)(f), 107(1)(f), 137(1)(g) and 182(1)(g) of the Constitution which compel a person employed in the  public service of the Federation or of any state to resign, withdraw or retire from such employment 30 days before the date of election to the Senate, House of Representatives, House of Assembly, President or Governor. It is instructive to note that these sections talk about persons “in public service”generally and not confined only topublic servants whose employments are clothed with statutory flavor as was decided by the Supreme Court in a plethora of cases like Shitta-Bey v. Federal Public Service Commission (1981) NSCC 19; (1981)1SC 40.

While interpreting section 318 (1) of the Constitution, the court in the case of Hon. Seun & Ors vs. Hon Donaldson Abiodun Ajayi (Appeal No CA/IB/111/2010) pronounced: “I wish to observe that, in the construction or interpretation of provisions of the Constitution, the Courts are enjoined to give a purposeful construction so as to bring out the intention of the framers of the Constitution. In that respect, the various Sections of the Constitution are not to be construed independently of the other Sections of the Constitution. That is to avoid a situation where one Section is construed in such a way as to defeat the intendment of another Section. The same thing applies to the various Sub-sections or Paragraphs in the same Section of the Constitution. In other words the various Sections of the Constitution should be given a holistic consideration so as to give it a harmonious result”.

In nullifying section 84(12) of the Electoral Act, the Federal High Court, Umuahiacorrectly invoked its power under Section 315  (3) (a)-(d) of the Constitution which provides that  “Nothing in this Constitution shall be construed as affecting the power of a court of law or any tribunal established by law to declare invalid any provision of an existing law on the ground of inconsistency with the provision of any other law, that is to say- (a) any other existing law; (b) a Law of a House of Assembly; (c) an Act of the National Assembly; or (d) any provision of this Constitution.”

•Dr. Obinna Kalu writes from Lagos