Section 84 (12) of the Electoral Act 2022 – The Constitutional Question

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By Chijioke Obute 

Overview: 

The Electoral Act 2022 recently passed by the 9th National Assembly came with a lot of expectations. This particular Act has been in the offing for quite a while. The 8th National Assembly had done so much work on the then Electoral Bill as it worked round the clock to get it passed and assented to before the 2019 General Elections. This was however not to be. The Act before its passage especially in the build up to the 2019 General Elections became a thing of national interest following the seismic clamour for its passage. This was principally because of the quest for Electronic Transmission of Votes. Understandably, for some clandestine reasons/interests, notwithstanding the multiple transmissions of the Bill by the 8th Assembly to the President for his Assent, the President was not moved to sign the Bill into Act. 

Upon the inauguration of the Ahmed Lawan and Femi Gbajabiamila led 9th National Assembly the coast became clear for the passage of the Electoral Act. The reason was the cosy relationship that was ushered in by the new leadership of the National Assembly between the Executive and the Legislative arms of the government. The Bill was passed in January 2022 and same was transmitted to the President for assent. On Friday, 25 February 2022, the Bill was eventually signed into Law by the President. Great cheer of course greeted the much awaited and expected Electoral Act 2022.

Section 84 (12) of the Electoral Act 2022 And the Constitutional Question

Following the enactment of the Electoral Act 2022 which had repealed the Electoral Act 2010, and the attendant euphoria that greeted same, however, this euphoria was short-lived for some set of people. The Act had come with a novel provision in its Section 84 subsection 12. That particular Subsection expressly outlaws the participation of political appointees either as delegates or candidates in the primary elections of political parties in Nigeria. The import of that subsection is that for any political appointee to be eligible to vote or stand for primary elections in Nigeria, such a person must first resign his position.

This particular provision was seen as a clandestine and deliberate move by the 9th National Assembly to whittle down the powers of the Executive Arm, particularly the state governors who employ their appointees in unduly controlling and manipulating the parties prior to the party primaries and afterwards. For perspective, Section 84 subsection 12 of the Electoral Act 2022 provides as follows:

“No political appointee at any level shall be a 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”

Of further relevance to this provision is the provision of section 84 subsection 13 of the Act, it provides as follows:

“Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue.”

Examination of Section 84 (12) Vis-à-vis Other Laws

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From a face value consideration of this provision, it can rightly be regarded as discriminatory and possibly inconsistent with section 42 of the Nigerian 1999 Constitution as amended. Again, for perspective that section provides thus:

(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person: –

(a) be subjected either expressly by, or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or

(b) be accorded either expressly by, or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.

(2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.

(3) Nothing in subsection (1) of this section shall invalidate any law by reason only that the law imposes restrictions with respect to the appointment of any person to any office under the State or as a member of the armed forces of the Federation or member of the Nigeria Police Forces or to an office in the service of a body, corporate established directly by any law in force in Nigeria.

From the foregoing provisions of Section 42 of the 1999 Constitution, it does appear the provisions of Section 84 (12) of the Electoral Act 2022 is indeed discriminatory. Upon the passage of the Act, at the point of the President assenting to same, he had clearly raised eyebrow to this section and had urged the National Assembly to immediately set in motion steps at amending(deleting) that section. This the 9th National Assembly has failed and or refused to do.

More still, the 1999 constitution already made provisions on eligibility or otherwise of civil and public officers for elections in Nigeria. The combined reading of sections 66(1)(f), 107(1)(f), 137(1)(g) and 182(1)(g) of the 1999 Constitution, is to the effect that “a person shall not be qualified for election in Nigeria if the candidate is a person employed in the civil or public service of the Federation or of any state and has not resigned, withdrawn or retired from the employment at least thirty (30) days before the date of the (general) election”.

The simple interpretation of the above constitutional provision is that any employed civil servant or public servant with intention to contest any election in Nigeria must have relinquished his or her position at least 30 days before the date of election. This provision is however peculiar to civil and public servants. This entails that for non-civil and non-public servants this requirement is not applicable. Incidentally, the Courts have held that political appointees do not fall under civil or public servants as they hold office at the absolute discretion of their boss that appointed them. See the case of SEGUN ONI v. KAYODE FAYEMI & ORS (2019) LPELR-46622(CA), where the Court of Appeal held that a minister being a political appointee is not a civil nor a public servant and is not caught up by the 30 days pre-election resignation condition. This case is still the law today as there is no Supreme Court decision upturning same. The appeal of that decision to the Supreme court was dismissed on the ground of late filing.

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It is instructive to note that the decision of the Court of Appeal in Oni v. Fayemi (supra) is in line with the provision of Section 318 of the 1999 constitution as amended. That particular section listed those it referred to as civil and public officers. Political appointees were not listed, as such the maxim that the express mention of a class implies the exclusion of the ones not mentioned applies. This maxim is better expressed in its latin equivalent thus: expression unius personae vel rei, est exclusion alterius or inclusion unius est exclusion alterius.

From the foregoing, it is safe in my humble opinion to say that the 30 days period for election does not apply to political appointees. See also the case of ADAMU V. TAKORI (2010) ALL FWLR (P. 540) 1387 C.A. and PPA v. PDP & ORS (2009) LPELR-4865(CA). The effect of these decisions in my humble opinion is that “the provision of Section 84(12) of the Electoral Act which applies to political appointees cannot and is not inconsistent with sections 66(1)(f), 107(1)(f), 137(1)(g) and 182(1)(g) of the 1999 Constitution since they have different persons in contemplation”.

Further discourse on this will be to consider its constitutionality vi-a-vis section 42 of the 1999 constitution. It is my humble view that section 84(12) of the Electoral Act 2022 will not scale the constitutionality test/hurdle placed by section 42 (1)(a) of the 1999 constitution. The provision of section 84 (12) of the Electoral Act 2022 appears to offend the provision of Section 42(1)(a) of the 1999 constitution. That provision is in my humble opinion, discriminatory as against the political appointees. The effect of this is that a lawful and valid challenge of that section will not survive vis-a-vis section 42(1)(a) of the 1999 constitution.

Judicial Pronouncements on  Section 84(12) of the Electoral Act 2022

Upon the passage and assent of the Electoral Act by HE @M.Buhari on 25 February 2022, the issues thrown up by Section 84(12) of the Act became an issue that stakeholders felt needed the Courts’ interpretation and intervention. Consequently, that section has been the subject of litigation by persons seeking interpretation, intervention and consequent deletion of the section on the basis of inconsistency with some constitutional provisions of the 1999 Constitution.

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In a Suit instituted by Nduka Edede, a lawyer and chieftain of Action Alliance AA, before the Federal High Court, Umuahia Division with Suit number: FHC/UM/CS/26/2022 wherein the Attorney General of the Federation (“AGF”) was sued as the Defendant, the Federal High Court in its considered Judgment delivered by Honourable Justice Evelyn Anyadike on Friday, 18 March 2022, held that Section 84(12) of the Electoral Act 2022 is inconsistent with Sections 66(1)(f), 107(1)(f), 137(1)(g) and 182(1)(g) of the 1999 Constitution and as such unconstitutional, null and void and of no effect whatsoever. The judex further ordered the AGF to immediately delete the subsection. A Judgment the AGF had indicated interest to comply with.

However, on Wednesday, 11 May 2022, the Court of Appeal sitting in Abuja, had quashed the Judgment of the Federal High Court. Ruling on an appeal filed by the Peoples Democratic Party (“PDP”), the panel of the Court of Appeal presided by Justice Hamma Akawu Barka held that the Federal High Court in Umuahia lacked requisite jurisdiction to entertain the case because the plaintiff, Nduka Edede, lacked the locus standi to have filed the suit in the first place.

The Court of Appeal further held that Edede did not establish any cause of action as he did not establish that he was directly affected by the section. The Court of Appeal therefore struck out the suit. However, the Court in pronouncing on the substantive subject of Appeal held that “the provision of Section 84(12) of the Electoral Act 2022 was unconstitutional because it violated Section 42 (1a) of the Constitution and denied a class of Nigerian citizens their right to participate in an election”.

On Friday, 10 June 2022, the Apex Court after taking arguments from parties reserved Judgment on the interpretation of Section 84(12) of the Electoral Act 2022. HE @M.Buhari and the AGF had approached the Apex Court seeking interpretation of the subsection. 

Conclusion

Having come this far, it is the view of the writer that the subsection in issue is fraught with thorns and will almost not survive the hammer of the 1999 Constitution. Section 1(3) of the 1999 Constitution has provisions on the supremacy of the constitution. Section 84(12) of the Electoral Act 2022 will fail the constitutional test not because of the provisions of Sections 66(1)(f), 107(1)(f), 137(1)(g) and 182(1)(g) of the 1999 Constitution as they apply to different entities, but principally because of its offence against section 42(1)(a) of the 1999 Constitution.

Chijioke Obute Esquire (Cjnorsh2008@gmail.com)

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