Funmilayo Odude, Legal Practitioner, Damod Law Practice

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Making a case for Section 84(12) of the Electoral Act 2022 20 Jun 2022

President Muhammadu Buhari signed the amended Electoral Act into law on the 25th of February this year. Section 84(12), since the passage of the law, has been the subject of several litigations. A Federal High Court sitting in Umuahia, Abia State, on the 18th of March, nullified the provisions of the section on the ground that it was inconsistent with the provisions of the Constitution and denies a section of the populace a chance to participate in elections.

The Court of Appeal, in May, nullified this judgment in an appeal filed by the Peoples Democratic Party (PDP). The judgment of the Court of Appeal was, however, not arrived at based on the consideration of the substantive suit – the interpretation and validity of the provisions of Section 84(12) – but on the issue of jurisdiction. The Court held that the lower court did not have the requisite jurisdiction to hear and determine the suit because the plaintiff who had filed the suit lacked the locus standi (standing/right to sue), as he did not disclose a cause of action that endued him with the right to approach the court on the subject matter.

The Governor of the Central Bank of Nigeria (CBN), Godwin Emefiele, filed his suit on the 5th of May. His position in the suit was that he should not be disqualified from running for the office of President of the country merely because he occupies the office of Governor of the Central Bank. He argued that the provisions of the Constitution allow him to retain his leadership position at the CBN until at least thirty days to the date of the election. He, however, subsequently withdrew the suit and it was struck out on the 23rd of May.

The withdrawal was probably necessitated by the decision of the Court of Appeal overturning the decision of the Federal High Court referred to above. The suit filed by the President and the Attorney General of the Federation (AGF) against the National Assembly at the Supreme Court on the same issue - validity of the provisions of Section 84 (12) of the amended Electoral Act – is the latest on the subject.

As of the time of writing this article, the extant decision of the court on the matter is that of the Court of Appeal nullifying the judgment of the Federal High Court, which had earlier declared the provision unconstitutional. The provision of Section 84 (12) of the Electoral Act 2022, therefore, subsists and is the current position of the law.

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.” The failure to comply with these provisions is quite dire. Section 84 (13) provides that “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.”

The legal argument against this provision is that it is inconsistent with the provisions of Sections 40, 42, 66(1)(f), 107(1)(f), 137(1)(g) and 182(1)(g) of the 1999 Constitution. The combined effect of these provisions is that a person is not 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 election. Thus, any employed civil servant or public servant intending to contest an election in Nigeria must have relinquished his or her position at least 30 days before the date of the election.

Are the provisions of Section 84 (12) of the Electoral Act inconsistent with the above provisions of the Constitution? Where the Constitution has made provisions with respect to a particular issue, and as in the instant case, made specific timelines with respect to the doing of an act, can another provision of a legislation create a different set of timelines in respect of the same or similar issues? Would doing that amount to being inconsistent with the provisions of the Constitution? My argument in respect of this is that it does not.

The Constitution does not portend to be an exhaustive document but the foundational structure or grundnorm for law, governance, and administration of justice for the country. It is, therefore, not expected that subsequent laws cannot be enacted over a matter just because the Constitution has made some provisions. What the Constitution forbids is where the provisions of the legislation are inconsistent with the provisions of the Constitution. I do not believe that additional provisions on a matter, or as in this case, additional conditions, amounts to inconsistency.

What would amount to inconsistency in respect of the instant discourse, for instance, would be provisions of a legislation permitting public or civil servants to run for office while still maintaining their employment up until the date of the election. That would clearly be inconsistent with the provisions of the Constitution listed above. Provisions adding other conditions are not inconsistent; they are additional provisions.

Therefore, even if the provisions of the Constitution and Section 84(12) of the Electoral Act covered the same persons, and I do not believe they do, creating an additional standard of resignation before primaries do not negate the provisions of the Constitution providing thirty days before the elections. It is not inconsistent; it does not negate the provisions of the Constitution.

In any event, I align with the position of the lawyers that have argued that political appointees are not public or civil servants. Section 318(1) of the 1999 Constitution defines public service of the Federation to mean the service of the Federation in any capacity in respect of the Government of the Federation and provided a list that includes members of staff of the legislative houses, the courts, statutory commissions and corporations, government-owned and government-run educational institutions, government-owned companies and members or officers of the Armed Forces of the Federation or the Nigeria Police Force or other Government security agencies established by law. There is equally a similar provision for public service of a state under the same section.

The Electoral Act unfortunately does not define political appointees, but the courts have had occasion to do so and to differentiate between political appointees and public servants. In the case of Adamu v Takori, the determining factor, which the Court of Appeal used in differentiating public servants from political appointees, is the mode of appointment. The subject matter in the suit was the Attorney General and Commissioner for Justice of Zamfara State and the court found that as his appointment was done without recourse to the Civil Service Commission of the State, he was not a public servant within the definition of the Constitution. The court went on to make a distinction between a “public officer in the service of a State” and “a public officer employed in the Service of a State”. According to the Court of Appeal, “only a public officer employed in the service of the Federation or a State is caught by the provisions of Section 318 (1) of the Constitution of the Federal Republic of Nigeria 1999.”

In another case of PPA v. PDP & ORS also decided by the Court of Appeal, the Court defined public service as “government employment” and “public servants as officers or public employees in the employment of the government.” Differentiating between those that are employed in the government of a state from those appointed by the governor of the state, the Court said: “unlike the employees or officers of government who ordinarily enjoy the characteristics of permanency and stability of service or employment, those appointed by the Governor such as chief of staff and civil commissioners are keeping their jobs at the pleasure of their Master, that is, the Governor. Whenever their Master ceases to hold office, they must also go. They swim or sink with him.” These are political appointees to which the provision of Section 84(12) of the Electoral Act applies and who are not covered by the constitutional provisions regarding public servants.

Also, in the popular case of Oni v. Fayemi & Ors, the court held that a minister of the Federal Republic of Nigeria, being a political appointee, is not an employee in the public service of the federation and therefore not constitutionally obligated to abide by the 30 days resignation rule for an employee in the public service.

It is almost expected in Nigeria that governance at a certain degree loses its already deficient efficiency and fervor about a year to the general election. This is the period when political jostling reaches a crescendo as political parties begin to prepare to conduct primaries to select their candidates for the general election. It not only distracts from the work of governance, but it also opens the office up for abuse, misappropriation of public funds and uneven advantage over opponents using public office.

Godwin Emefiele’s presidential aspiration (while remaining as CBN Governor), much more than anything else, is the most compelling argument in favour of Section 84(12) of the Constitution. Can it be imagined that a sitting governor of the CBN would become partisan, run for office against opponents while still retaining such a sensitive office? The fact that it was not only thinkable but also almost actualized is the reason why we cannot rely on the sense of judgment of our political appointees but must legislate it.

Section 84(12) protects the electorate. The provision does not deny any person’s right to partake in elections. The right should be exercisable only when the undue advantage that a political office gives has been stripped off a currently unelected aspirant to an elective office.

Funmilayo Odude is a Partner at Commercial and Energy Law Practice (CANDELP).