Electoral Act Amendments: Lawyers Differ on Deletion of Section 84(12) Judgement

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Lawyers yesterday differed over the judgement of an Umuahia, Abia State federal high court that ordered the deletion of section 84(12) of the electoral act.

While one of them, Anthony Odebe said it was a wrong interpretation of some relevant sections of the 1999 constitution, the other person, Onyebuchi Ememanka said the judgment was in order.

It will be recalled that President Muhammadu Buhari while giving assent to the bill as it were picked holes with the section, contending that the section which provided that all political appointees with aspirations should resign their positions before elections was inconsistent with a section of the 1999 constitution (as amended).

He therefore called for the removal of the section for the act.

But in a swift manner, a federal high court in Abuja penultimate week barred  the federal government and the national assembly from tampering with the act, saying that having become a law, its validity can only be tested in court.

In a similar stance, the amendment refused to fly at the Senate during its second reading.

Yet, on Friday, another federal high court in Umuahia, Abia State granted the Attorney-General of the Federal, Abubarkar Malami SAN to go ahead and delete the section, insisting it was inconsistent with the provision of the Constitution.

In a swift response, Malami said the judgement will be implemented immediately according to the section 287 of the Constitution.

Reacting to the development on the phones, Odebe who is principal partner of A.N Odebe and Co.domicled in Port Harcourt, Rivers State said the interpretation was wrong.

He said that section 84(12) dealt specifically with the political appointees and not civil or public servants.

Odebe therefore urged the national assembly to immediately appeal the matter, saying it will not stand the test of judicial scrutiny.

He said: “The decision of the Federal High Court, Umuahia declaring the provisions of Section 84(12) of the Electoral Act is a wrong interpretation in relation to the provisions of Sections 66(1)(f), 107(1)(f), 137(1)(f), 182(1)(f), 66(1)(f), 107(1)(f), 137(g) and 182(1)(g) of the Constitution of the Federal Republic of Nigeria (CFRN) 1999.

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“The Sections of the 1999 Constitution referred to in the said judgement are not aimed at political appointees but persons employed in the public service of the federation, state and local government. In other words, the constitutional provisions require that public servants are to resign or withdraw from the public service 30 days before the general election (not primary election).

“Political appointees are not employees of the public service, neither are they public servants. The Supreme Court has already decided that political appointees, for example, ministers, commissioners, etc, are not employees in the public service as their time in office is not regulated by public service regulations.

“Therefore, Section 84(12) cannot be said to be in conflict with the constitutional provisions listed above, as it specifically refers to political appointees and not public servants.

“For avoidance of doubt, Section 318(1) of the CFRN 1999 clearly identifies who are public servants in Nigeria, and political appointees are not included.

“The Provisions of Section 84 (12) of the Electoral Act refers to Primary Elections of Political Parties, that is, internal party mechanisms to select person(s) to contest for general elections and it is these general elections that the Constitution of the Federal Republic of Nigeria  (1999) as amended referred to.

“The Constitution did not concern itself with the internal party primary elections which is a lacuna that the Electoral Act in Section 84(12) has filled. The two scenarios are quite different and distinguishable and there is no conflict between the Provisions of the Construction and that of the Electoral Act.

“In my considered opinion, the National Assembly should immediately lodge an Appeal against the decision of the Federal High Court, Umuahia either as a Party or as an Interested Party and thereafter file a Motion to Stay Execution of the said Judgment”.

Also, in his own view, Ememanka who is the Chief Press Secretary, CPS, to Abia State Governor, Okezie Ikpeazu said that the National Assembly wasted its legislative time in enacting the provision which according to him was inconsistent with the Constitution.

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In his reaction titled “Much Ado About Nothing”, he said that no act of the parliament can supplant the Constitution.

“Section 84(12) of the Electoral Act: Much Ado About Nothing

“Yesterday, Justice Evelyn Anyadike of the Federal High Court sitting at Umuahia struck down the above section of the new Electoral Act.

“That section barred political office holders from taking part in the elections except they resign their appointments almost one year to the date of the General Elections.

“In enacting that sub section, the National Assembly was motivated by needless emotions other than objectivity and respect to the dry letters of the constitution.

“Since the constitution made very clear and unambiguous provisions on this issue giving such persons a definite time line for resignation, the attempt by the National Assembly to change it was a clear waste of legislative time.

“No Act of the National Assembly can supplant the provisions of the Constitution.

“When the President noticed this anomaly and wrote to the National Assembly to delete that offensive subsection, the Senate rejected the request in another display of needless emotions.

“We operate a constitutional democracy. That subsection couldn’t have survived even the simplest Judicial scrutiny.

“If the National Assembly had issues with that constitutional provision, they ought to have amended that part of the constitution which gave such appointees 30 days before the date of the General Election to resign.

“The attempt by the National Assembly to use the Electoral Amendment Bill to change the constitution amounts to shaving a man’s head in his absence.

“The constitution is the Supreme Law of the land and any other Law or Act which is in conflict with the Constitution is void to the extent of the inconsistency.

This is elementary law.

“Justice Anyadike’s judgment is not the first of such judgments and won’t be the last”, he said.

It will be recalled that the Spokesman of the House of Representatives, Hon. Ben Kalu, a lawyer, too, had on Friday night said that the House will await the Certified True Copy, CTC, of the judgement before making its further position known on the matter.

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“The House of Representatives is not aware of this legal matter, whether we were a necessary party or not. It is important to note that it is out of place to comment on a judgement we are yet to see the copy. So we will make comment on it once we receive the certified true copy.

“We have read from the media that the judgement bothers on section 84(12) of the electoral Act which was signed into law by Mr President recently.

“It’s important to let Nigerians know the mindset of the legislature, the intentions while drafting the 84(12) section. As you know for electoral reform to be efficient it has to be transparent and accountable and inclusive as possible, and it has to be fair for it to be credible.

“If any of these ingredients is missing towards achieving a credible election, it affects the whole picture. That was why we wanted to address the conduct of appointed officers, political office holders who are used as tools during conventions and congresses. It’s important that process is considered to enable us have a credible process that will be above board. Many have argued that it offends the provisions of the constitution with regards to 66 and a couple of other provisions that border on how a person qualify or disqualify for election and also the notice of 30 days before election. That’s for public servants, we are talking about political appointees and section 318 defines who a public servant is and it doesn’t include appointees. So the ability to differentiate the two will help us understand what the electoral act is trying to do as against what is being believed that it is offensive to the constitution. When we get the judgement, we know whether that differentiation was clear or not. Electoral Act addresses Political appointee, the constitution addresses public servants”, Kalu said.



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