Okorafor Chidiebere John
Section 84(12) of the Electoral Act is one of the controversial provisions (if not the most controversial) of the Electoral Act, 2022. Barely 3 months if its existence since 25th February 2022, the electoral Act has series of lawsuits seeking its interpretation. Most of the suits hinge on the purport of Section 84(12) of the Act. What is the Section and what is it not? Let us find out.
I will reproduce the section and attempt a pragmatic interpretation as well. Section 84(12) provides:
“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”.
Foremost, take notice that the section only relates to primary election of political parties and not general election. Be informed equally that for one to be voted for in the general election, such one must have participated in a party’s primary from where he/she will be voted to bear the flag of that party in the general election and herein, lies the link.
Take further notice that the section seeks to disqualify some persons from voting or been voted for in the primaries but such disqualification does not raise the issue of infringement on the fundamental right to vote of a person. This is because the disqualification is only for party’s primary.
Armed with the foregoing notices, let us now dive into the section proper. In order to do justice to the section, I will raise some questions and answer them accordingly. So:
- Who is disqualified from voting or been voted for at a party’s convention/primaries under the section?
- If the person sought to be disqualified wants to vote or be voted for, what must he/she do?.
- What is the mischief sought to be remedied by the section?
- What obtains in other jurisdictions/climes?
Now, if I am able to provide answers to the questions raised at the end of my analysis, then it would be appropriate to conclude that I have discharged the burden I assumed in this piece. I will begin at once.
2.0 WHO IS DISQUALIFIED FROM VOTING OR BEEN VOTED FOR IN THE PARTY’S CONVENTION OR PRIMARIES UNDER SECTION 84 (12)?
The answer is simple: POLITICAL APPOINTEES are so disqualified. A readily question that flows from the above answer is “WHO ARE POLITICAL APPOINTEES”? Surprisingly, the Electoral Act took the concept for granted and so, the Act did not define who a political appointee is. The only way out is for me to attempt proffering a definition. I will not do this alone.
My Lord justice Evelyn Anyadike at the FHC, Abia State Judicial Division in Suit No FHC/UM/CS/26/2022 held that section 84(12) can be juxtaposed with sections 66(1)f, 107(1)f, 137(1)g and 182(1)g of the 1999 Constitution (as amended)the above sections of the constitution apply to public servants. Thus, His Lordship apportioned the meaning of public servant to political appointees. Consequently, the erudite judge held that section 84(12) is bad for infringing on the various sections Constitutions. I will return to this shortly.
With utmost humility to the respected view of my Lord, I share a different opinion. Upon appeal of the said judgement, the Court of Appeal, Abuja Division in CA/OW/87/2022 overruled the trial court but further held curiously that section 84(12) Electoral Act infringes on section 42(1)a of the Constitution. I will leave the Court of Appeal judgement as it does not aid in explaining who a POLITICAL APPOINTEE is. Since my Hon. Justice Anyadike equated POLITICAL APPOINTEES to PUBLIC SERVANTS, I will examine the two concepts to know whether there are the same and one thing.
I will begin with Public Servant/Officer. Section 18 of the Interpretation Act defines Public Servant/Officer to mean a member of the public service of the Federation within the meaning of the constitution of Nigeria or Public Service of the State”. Section 318 of the Constitution then provides a very long list of persons regards as being in public service of both the Federation and the State and would therefore be regarded as public servants/officers. The length of the list notwithstanding, it is not exhaustive as the Constitution itself uses the word, “means” suggesting that other officers not expressly mentioned may yet qualify as public servants ejusdem generis.
The meaning of Political Appointees are not forthcoming. I will apportion meaning to the expression simply by stating that a political appointee is a person appointed politically (as against merit). In this sense, political appointee means a person appointed into a position on the basis of the contribution of the appointee during the campaign or political escapade of him that appointed. I will adopt this as my working definition. This explanation coincides with the meaning of the concept in other climes as we shall soon confirm.
Comparatively, public servants are appointed on merit while political appointees are appointed on basis of politics. This view becomes unassailable when one painstakingly take a tour through the list of public servants in Section 318 of the Constitution. It remains to be said that in the light of the forgoing, a political appointee is not a public servant. It is not difficult to differentiate political appointee from public servant. At all times, the question to ask is How or on What basis was the appointment made? Meanwhile, it is the mode of appointment that determines whether a person is a public servant or political appointee. This was also the decision of the Court of Appeal in ADAMU V TAKORI (2009)LCN/3084(CA). Also, political appointees go with their appointer while public servants remain in office until retirement. He that appoints appointees can relieve them at his whims and caprices but this is not the case in public service. Moreso, political appointees are accountable to their appointer while Public Servants account to the public.
It is on the basis of the forgoing that the judgement of Justice Anyadike does not go down well with me.
3.0 IF THE PERSON SOUGHT TO BE DISQUALIFIED WANTS TO VOTE OR BE VOTED FOR, WHAT MUST HE/SHE DO?
A political appointee who desires to vote or be voted for during primaries has a simple task. HE MUST RESIGN. Section 84(12) requires a person to not be a political appointee for him to vote or be voted for. So, if a person is a political appointee, he must not vote or be voted for. He is disqualified. He must not be a political appointee for him to vote or be voted. A political appointee is no longer a political appointee if he is sacked, removed, or resigns. In this case, resigning may be the best option. To put it straight, a political appointee must resign from his appointment for him to vote or be voted during convention/primaries. On this point, I see no justification for the Court of Appeal in holding that Section 84(12) infringes on Section 42(1) a. There is no discrimination whatsoever. The philosophy is simple and may be put forward thus:
“If you want to be voted for, you must belong to a party (we know not the doctrine of independent candidacy in our polity yet). If you belong to a party, you must do what party members do including what is statutorily required of the party including Section 84(12) of the Electoral Act 2022. If you cannot do it, then you shall not be voted for”. Simple! There is no right without limitation including the right to life which is the greatest right available to anyone.
4.0 WHAT IS THE MISCHIEF SOUGHT TO BE REMEDIED BY THE SECTION?
This is the crux of this analysis. There is what is called power of incumbency in the political arena. The power aids someone in a position to utilize mercenaries available to him by virtue of the position in pursuing another preferred position. It is power of incumbency that makes second term a birthright in Nigeria. Be informed that power of incumbency is not only known in Nigeria or African. It is known the world over although quite minimal in developed societies.
Section 84(12) and by extension, the sections of the Constitution referred above are all attempt to watch against a political appointee taking advantage of the position he/she occupies in pursuing a political position to the disadvantage of his opponent who at the time of the party’s primary does not have such mercenaries at his disposal. Indeed, section 84(12) aims at achieving equal pedestal to all candidates at the party’s primaries. This is the jurisprudential justification of the section. An instance is apt at this stage.
Mr. Abubakar Malami, the Hon incumbent AGF had indicated interest for Kebbi State Gubernatorial post. Can you fathom what he can do with his current position in pursuit of the office. Can you also imagine the degree of advantage he has over any other person eyeing the office? This is a good example of what the section 84(12) Electoral Act desires to abhor. I can give more examples including the expressed desire of Mr. Godwin Emefiele (the incumbent Governor of the CBN) for the office of the presidency. You must abreast yourself with the CBN works closely with INEC in organizing elections for you to appreciate this analogy.
Do not mix up issues. Section 84(12) Electoral Act does not disqualify holders of such office from contesting any desired position. It only requires them to resign 180 days before the general election. This is to enable an equal playground for contesters. There cannot be any more laudable provision in the Nigerian law than Section 84(12), Electoral Act 2022.
5.0 WHAT OBTAINS IN OTHER JURISDICTIONS/CLIMES?
I have earlier said that political appointee is not only known in Nigeria. Political appointment is made everywhere in the world. Now, in other parts of the world, when a political appointee desires an elective position, what does he do?
In a sane environment, whenever a political appointee desires any elective position, HE HONOURABLY RESIGNS HIS APPOINTMENT. Where then lies the bone of contention? Is ours not a sane environment or is it that our men would not resign honourably (probably because our men are not honourable men)? I leave you to answer this two questions.
The Nigerian polity is growing; so is our democracy. Since we have refused to change, change has come to us (Change not as handed down by the APC-Buhari led Administration). We must embrace the changes as they come. Every right thinking person must appreciate the good intents of the draftsman of section 84(12) of the Electoral Act. He deserves an accolades instead of ill-borne criticisms levied against him.
As an aside, one cannot understand part of Justice Anyadike ruling empowering the AGF to delete Section 84(12) of the Electoral Act. From where will the AGF obtain the power with which to carryout the Court’s injunction or does the Court intend to command the impossible? Too y questions without forthcoming answers.
Whenever the opportunity avails the Supreme Court (as it will so soon be), I look forward to seeing the apex Court do justice to Section 84(12) by reading the spirit of the law into the section.
Okorafor Chidiebere John