The fear of Section 84(12) of Electoral Act

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Uba Group

Uba Group

BY BRIGHT JACOB

The simmering controversies trailing Nigeria’s amended Electoral Act may not be cooling down anytime soon as matters relating to Section 84(12) have pitched the Executive arm of Government against the Legislature.

Barely a month after President Buhari signed the Electoral Act Amendment Bill 2021 into law, a branch of the Federal High Court which sat in Umuahia, Abia State, nullified section 84(12) of the Act in what legal pundits described as “strange” because of the duration of the case (10 days). The court also ordered the Attorney General of the Federation and Minister of Justice, Abubakar Malami, to expunge the said section.

At the centre of the ruling was Justice Evelyn Anyadike, who in a suit marked FHC/UM/CS/26/2022, adjudged section 84(12) to have contradicted sections 66(1)(f), 107(1)(f), 137(1)(f) and 182(1)(f) of the 1999 Constitution.

Section 84(12) stipulates the inability of serving political appointees to vote or be voted for at the conventions or congresses of any political party, for the purpose of the nomination of candidates for any election in cases where it holds earlier than 30 days to the national election.

Though the suit at the Federal High Court, Umuahia, was filed by one Nduka Edede of the Action Alliance, Malami was alleged to be its pivot, as it is believed he nursed the ambition to be the next Governor of Kebbi State.

Before the amended Electoral Act was signed into law, it stayed so long on the President’s desk without his signature and generated so much disquiet in the polity so much so that there was uncertainty about the future of the general elections in 2023. When it was eventually signed on February 25 this year, the President didn’t fail to register his displeasure with the contentious section and said he would approach the National Assembly for its amendment.

When he eventually did, the Senate refrained from any amendment of the section, and instead threw Buhari’s letter out. Thereafter, the AGF voiced the Federal Government’s resolve to explore all legal options open to them to address the matter.

Reacting to the controversies the Electoral Act generated, a legal practitioner, Honesty Eguridu told The Point that it was because of the personal interest of “some people” the controversies arose.

“The judge has erred even if what he did at all was right. By ordering the AGF to do the work of the National Assembly, that alone in itself is wrong. It’s, therefore, a very germane point made by the National Assembly, and they are going to challenge that decision because legislation is their function”

He aligned himself with the position of the National Assembly, stating that a political appointee eyeing any elective position should resign their appointment before “you go into the ring”.

“The issue is that the Electoral Act is not supposed to cause confusion, just that some people, because of the interest they have, they’re making it look as if there is really a problem. Now, what the National Assembly is saying is that if you are a political appointee, like Ministers, Commissioners, and others holding a government position, and in that position, you’re supposed to be a steward to the public, or you’re in a position to influence decisions in your favour, it will not be fair on your part if you have an interest politically.

“You, first of all, resign that position before you go into the ring, because if you’re allowed to be in that position and you now go to the contest, you will not be effective in your job at that time, you’d be distracted. Secondly, you can sway things in your favour to the detriment of those competing with you, which is unfair. That is what the National Assembly is saying,” he said.

He noted that because some people in the Presidency were disgruntled with that arrangement, they went to their principal, the President, to have that section deleted from the Electoral Act.

“Buhari made a request for that section to be deleted because his people had gone to him and said it would affect their interest. Of course, everything is about selfish and personal interest from the camp of the presidency, which made them go and influence that decision they got at the Federal High Court in Abia State,” he explained.

Eguridu also noted that in judicial administration, cases were supposed to be filed in the locations where they arose, and it was surprising this one was filed in Abia State when the major actors were in Abuja.

His words, “There’s an operational rule in judicial adjudication (civil or criminal) that cases should be filed in the location where they arose. We call it a jurisdictional location. So, if a matter happened in Abuja, the courts in Abuja should determine it.”

Giving further insight, he said, “The court in Abuja should be the one that has the jurisdiction over the case, not the one in Abia State. The National Assembly is in Abuja, the Presidency that made the request is in Abuja, the AGF that was even ordered to delete that section is in Abuja.

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So why did you take the matter to Abia State? Of course, it’s for personal interest.”

On the court order that “gave” the AGF the role of the National Assembly by its order to delete the disputed section, Eguridu said the court erred in that judgement. He added that the decision by the National Assembly to challenge the judgment was in order since the AGF should not carry out legislative duties.

“There was another issue raised by the National Assembly. Why would you order the AGF to do the job of the National Assembly? Does it mean the AGF has the power to tamper with the laws made by the National Assembly? Why was the AGF the one ordered to delete, and not the National Assembly? That alone makes the judgement to be faulty. We call it an error in law.

“The judge has erred even if what he did at all was right. By ordering the AGF to do the work of the National Assembly, that alone in itself is wrong. It’s therefore a very germane point made by the National Assembly, and they are going to challenge that decision because legislation is their function,” he concluded.

In his submission, another senior lawyer, Fred Aigbadumah, said many controversies existed because issues having to do with candidates for election shouldn’t concern the Electoral Act, but should be “purely an intra-party affair” that can be sorted out by each political party.

“There are a lot of issues there that shouldn’t be an issue for the Electoral Act. They shouldn’t come up at all because issues, for instance, concerning candidates for elections should purely be an intra-party affair. If they’re talking about resolving a consensus candidate, why should it be part of the Electoral Act? Indeed, there are some issues that should not even come up at all. We are generating unnecessary hullabaloo,” he said.

Aigbadumah agreed that the AGF does not have the power to make or expunge any law, and stated that the judge who gave the ruling did not “look at the law very well” because Malami, despite being the number one law officer in the country, didn’t have the constitutional powers to do so, and laws should be amended and accented to by the President.

“The AGF does not have the power to expunge anything. It has to go back to the National Assembly because that judgement is against the rule of law or separation of power. I’m sure that the judge who gave that ruling did not look at the law very well,” Aigbadumah quipped.

Speaking further, he told our correspondent of the AGF, “He is just a part of the Executive. Even though he is the number one law officer of the country, and has certain powers, this one is a substantial power that should be only exercisable by the National Assembly, and accented to by the President.”

On the alleged political ambition of the AGF being the motivation for the imminent expunging of Section 84(12), Aigbadumah insisted that the ambition of the AGF does not have anything to do with his present position, but a question of the legality or otherwise, of such action.

“His ambition does not have anything to do with his present position. Anybody can have ambition, and it’s not something that can be hidden for long. Even if he is thinking of amending that section in his own interest, whether now or in the future, it is illegal. It is unlawful. It is null and void,” he declared.

Aigbadumah was of the view that barring political appointees would indeed be controversial. According to him, it was like restricting or controlling in a “wholesome” manner their votes or ambition so that they would be under the whims and caprices of those who appointed them. He affirmed that such action was inimical to the public interest and emphasised that a lot of controversies would still come up and challenges are thrown up, thereby making the courts to be faced with a deluge of cases, and concluded that it was all part of political development.

An aide to Abubakar Malami, in charge of Media and Public Relations, Umar Jibrilu Gwandu, said Section 84(12) was “discriminatory” because political appointees are expected to resign while members of the National Assembly are permitted to vote and be voted for.