ELECTORAL ACT AND THE MOUNTING CASUALTIES IN APC: More troubles coming
- 30 days’ notice of resignation not sufficient due to dates of primaries
- Unlawful section 84(12) exposed by court of appeal whose hands were tied.
- Request for extension of deadline for primaries to INEC refused
The current Electoral Act (as amended) seems to be the ultimate ticking time bomb for the ruling APC. Even the AGF, Abubakar Malami SAN, often touted as their infamous dooms day plane, designed to protect the system from impending disaster is himself a casualty under section 84 (12) which he sought to oust. He should be blamed for doing a very bad job.
After the signing ceremony in February, Buhari asked the national assembly to delete section 84(12) of the Electoral Act, saying the provision violates the provisions of the 1999 Constitution (as amended).
Section 84(12) of the electoral act says: “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.”
A few days after Buhari signed the act, the senate rejected the president’s request seeking to delete section 84(12) of the law.
THE IMPLICATIONS OF SECTION 84(12)
By the virtue of section 84(12), political appointees are meant to resign their appointment to be eligible as delegate in a political convention or candidate in an election.
The section also stipulates the penalty for political parties that nominate political appointees who did not resign.
Section 84(13) reads: “Where a political party fails to comply with the provisions of this act in the conduct of its primaries, its candidate for the election shall not be included in the election for the particular position in issue.”
WHO WHO ARE POLITICAL APPOINTEES?
Political appointees are persons appointed to hold a position in government.In some cases, the appointment of a political appointee is terminated at the expiration of the tenure of his principal. In our clime, Ministers, commissioners, advisers, and ambassadors can be referred to as political appointees.
BACKLASH OF SECTION 84 (12)
With less than 9 months to the 2023 elections, political appointees at the state level with political ambitions have started complying with section 84(12) of the electoral act by tendering their resignation letters, but some of them at the federal level — ministers — refused to resign until the president gave the marching order after Federal Executive council meeting of 12th May 2022.
Some analysts have argued that since political appointees like ministers, commissioners and ambassadors are listed as public officers in Schedule V, part II of the 1999 constitution; it is appropriate to say public officers are political appointees.
Those who disagree argue that political appointees are not in the same category as public officers mentioned in the constitution, and that the contentious clause was introduced by federal lawmakers to prevent political appointees from using public resources to finance their ambitions.
POLITICAL APPOINTEES AND PUBLIC OFFICERS
The 1999 constitution is silent on the phrase “political appointees”. Prior to the introduction of the clause on political appointees into the electoral act, political appointees usually rely on the provisions of the constitution on public officers as regards election matters.
Sections 66(1)(f), 107(1)(f), 137(1)(g) 182(1)(g) of the 1999 constitution stipulates that elected public officers, which include civil servants, who want to contest an election must have resigned their position at least 30 days to the date of the election.
These sections in the 1999 constitution make use of the phrase “being employed in the public service of the federation or any state”.
The big question is — are political appointees “employed” into the public service at the federal or state level?
Some analysts have argued that since political appointees are paid from the public funds, it is logical to conclude that they are “employed” in public service.
Section 318 of the constitution suggests that persons who work in government ministries, departments or any other government business at the federal or state level are under the “civil service of the federation or state”.
Schedule V, part II of the constitution listed persons who are public officers bound by the code of conduct stipulated in the constitution.
President, governors, federal and state lawmakers, attorney-generals, ministers, commissioners to mention a few are listed as public officers in schedule V of the constitution.
JUDICIAL PRECEDENTS
On numerous occasions, the judiciary has given interpretation on who is a public officer as mentioned in section 318 of the constitution.
In the case of Hon. commissioner for local government and chieftaincy affairs & Anor v. Oba Adeyinka Onakade (2016), the appeal court ruled that the local government commissioner is not a public officer and his appointment is at the mercy of the state governor, who appointed him.
In the case of INEC & other v. Chief T.A. Orji & ORS (2009), the appeal court ruled that the first respondent (chief of staff) and second respondent (commissioner) are not public officers and therefore qualified to contest for the offices of governor and deputy governor without the 30-day-before-election resignation notice stipulated in the constitution.
Rulings in the cases of Adamu v. Takori (2010), Asogwa v. Chukwu (2003), Dada v. Adeyeye (2005) and Oni v. Fayemi & ORS (2019) affirmed that political appointees are not public officers.
POLITICAL PARTIES RISK DISQUALIFICATION AMID LEGAL TUSSLE
On March 18, 2022 a federal high court in the suit marked FHC/UM/CS/26/2022 in Umuahia, Abia State, ordered the attorney-general of the federation to immediately delete section 84 (12) of the amended Electoral Act, 2022.
Justice Anyadike, held that Sections 66(1)(f), 107(1)(f), 137(1)(f) and 182(1)(f) of the 1999 Constitution already stipulated that appointee 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 and void to the extent of its inconsistency to the clear provisions of the Constitution.
Apparently pleased with the verdict, Malami, who recently declared his governorship bid, said the federal government will affect the judgment which ordered the removal of section 84(12) of the electoral act.
The national assembly, legal practitioners and the Peoples Democratic Party (PDP) have faulted the judgment, saying only the attorney-general was the respondent in the suit. The dispatch with which the judgment was delivered was also a subject of public criticism.
The national assembly and the PDP filed an appeal against the judgment.
On Wednesday May 11, the Court of Appeal Owerri in its ruling, the panel of judges headed by Hamma Akawu Barka struck out the suit marked: FHC/UM/CS/26/2022 filed by Edede before the Umuahia court and held that the federal high court Umuahia had no jurisdiction to hear the case because Edede lacked the locus standi to have filed the suit in the first place.
The court however added that the plaintiff did not establish any cause of action to have warranted his approaching the court on the issue because he did not establish that he was directly affected by the provision.
The appellate court, however, held that if the suit had been properly instituted, it would have ruled that the provision is unconstitutional because it violates section 42 (1)(a) of the constitution and denies a class of Nigerian citizens their right to participate in elections.
The Court of Appeal said if it were to decide the case on its merit, the provision is unconstitutional because it is in conflict with Section 42 (1)(a) of the constitution.
The court said the controversial clause in the Electoral Act denies a class of Nigerians their right to participate in elections.
With less than 30 days before the conclusion of the party primaries, it appears there will be a lot of casualties from both the APC and PDP side on those who delayed in putting in their resignation papers until now.
Could this the reason the APC, PDP and 16 other political parties are applying to INEC to grant them another 37 days to conduct its primaries which INEC has bluntly refused.
WE WILL SEE
