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On March 18, 2022, a Federal High Court sitting in Umuahia Abia State, declared Section 84(12) of the newly amended Electoral Act, 2022 as illegal and a violation of the provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

The judge, Justice Evelyn Anyadike in her ruling, held that Sections 66(1)(f); 107(1)(f); 137(1)(g); and 182(1)(g) of the 1999 Constitution already stated that appointees 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.

In view of this, she directed that Section 84(12) of the Electoral Act, 2022 be struck down as it cannot stand when it is in violation of the clear provisions of the Constitution.

Recall that President Muhammadu Buhari signed into law the Electoral Act on February 25, 2022. But on March 1, Mr. Buhari wrote a letter to both chambers of the National Assembly requesting them to delete Section 84(12) of the Electoral Act.

Prior to his letter to the National Assembly, Mr Buhari had expressed his dissatisfaction with that particular section of the Electoral Act. He stated this emphatically on the day he signed the Bill into law, noting that the Section constitutes a fundamental defect, as it is in conflict with extant constitutional provisions.

What Exactly is in Section 84(12) of the Electoral Act?

This particular Section of the Electoral Act states that “No political appointees 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”.

What this means in simple terms is that a political appointee (like ministers, commissioners, special advisers, personal assistants, etc), be it at the federal or state level is not allowed to be a voting delegate or be voted for in a political party primary. And since such an individual was not allowed by the provision of Section 84(12) of the Electoral Act to be a delegate or be voted for in the political party’s primaries, thus, he/she cannot be a candidate for an election.

The only way such an individual would be a candidate is if he/she resigns before the party’s primaries, and political parties are mandated by Section 29(1) of the Electoral Act to conduct their primaries and submit the list of candidates at least 180 days (i.e 6 months) before the date appointed for a general election.

In a situation where a political party fails to comply with Section 84(12) of the Electoral Act, subsection 13 of the same Section states that the political party’s candidate shall not be included in the election for the particular position the candidate has filled in for.

Perhaps because there are reports of some political appointees in this current administration intending to vie for some political positions in the upcoming general elections, or that political appointees have historically contested elections while holding their positions or intend to continue to do so, there have been several debates or push for Section 84(12) of the Electoral Act to be deleted, relying on the provisions of the 1999 Constitution which Justice Anyadike, the Judge of the Federal High Court in Umuahia, Abia State also relied upon in her ruling.

What the Provisions of the Constitution say About Appointees of Government Seeking to Contest Elections

While delivering her judgment, Justice Anyadike cited 4 Sections in the 1999 Constitution. Here’s what each Section says.

According to Section 66(1)f of the Constitution, (1) no person shall be qualified for election to the Senate or the House of Representatives (f) if he is a person employed in the public service of the Federation or of any State and has not resigned, withdrawn or retired from such employment 30 days before the date of the election.

Section 107(1)f states that (1) “No person shall be qualified for election to a House of Assembly (f) if he is a person employed in the public service of the Federation or of any State and he has not resigned, withdrawn or retired from such employment thirty days before the date of election”.

Sections 137(1)g and Section 182(1)g make reference to individuals who want to contest for election to the office of President and Governor, respectively.

Section 137(1)g says that such a person (i.e the individual contesting for the office of the President) is not qualified if he/she is a person employed in the civil or public service of the Federation or of any State, and he/she has not resigned, withdrawn or retired from the employment at least thirty days before the date of the election.

Section 182(1)g is for individuals who want to run for the office of the Governor of any state. It states that “No person shall be qualified for election to the office of Governor of a State if – being a person employed in the public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days to the date of the election”.

It was based on these provisions of the 1999 Constitution that the Judge of the Federal High Court sitting in Umuahia directed that Section 84(12) of the Electoral Act, 2022 be struck down. The judgment has however been met with mixed reactions and has generated debates among legal practitioners.

On the Umuahia High Court Judgment

Ariyo-Dare Atoye, the Executive Director of Adopt a Goal Initiative (AGI) and one of the frontliners in the push for the Electoral Act to be signed into law told us that the National Assembly acted rightly on Section 84(12). “Political appointees give the Executive arm an undue advantage during party conventions and congresses for elective office. Political appointees seeking elective office deny other aspirants a level playing field if they remain in the office during the primaries”, he said.

According to Atayo, Sections 66(1)f; 107(1)f; 137(1)g; and 182(1)g of the 1999 Constitution which the judge cited in her judgment did not cover political appointees because they are not public servants.

Mr Atoye explained that “there are a plethora of cases in which the status of a public servant has been defined. One of the cases is that of ADAMU V. TAKORI (2010) ALL FWLR (P. 540) 1387 C.A”. The Court of Appeal held that a political appointee like the Attorney-General is not a public servant employed in the service of the federation or of a state and is therefore not covered by Section 318(1) of the Constitution”.

He reiterated that political appointees are not public servants that they exist at the pleasure of the appointors who can hire and fire without recourse to the public service rule which is not the case for a public servant, as the Executive cannot fire a public servant without going through the laid down procedure in the Public Service Book.

Mr Atoye further explained that by global convention, once political appointees are interested in public office, they resign immediately before the party’s timetable is out.

He stated that the matter the judgment on Section 84(12) of the Electoral Act will not stop at the outcome of the “forum shopping” in Abia State, and therefore advised that all political appointees who are seeking to contest their party primaries should not ignore the provisions of Section 84(12) until the Supreme Court has settled the matter.

Meanwhile, yesterday, the House of Representatives and Senate stated that they will appeal the judgment of the Federal High Court, Umuahia asking the Attorney-General to delete Section 84(12) of the Electoral Act, 2022.

By Tonnie Iredia

In most democracies, the term ‘election’ means far more than its voting segment of casting ballots which many erroneously over-patronize. In truth, election is not an event but a process of inter-related events which must holistically be handled to get an undisputed winner.

Before the casting of ballots, segments such as the registration of voters, the delimitation of electoral constituencies, the nomination of flag bearers through party primaries and electioneering campaigns must be seamlessly concluded. After these, election is still not over until the casting of ballots, collation of votes, declaration of results, inauguration of winners and the settlement of election disputes have been concluded.

Many people lose elections in Nigeria because they fail to appreciate the true meaning and nature of election with its many dimensions. In the last few years, the segment on the settlement of election disputes has seized the front burner of the country’s electoral process as political parties have learnt to devote ample time, energy and resources to the segment.

Many factors have greatly contributed to the elevation of the settlement of election disputes to the foremost election segment in Nigeria. Among the factors are a) commercialized political system which encourages players to adopt a fight to finish approach, b) weak internal democracy in the nation’s political parties, and c) finality of judicial decisions which enables the judiciary to reverse any electoral victory even where the decision upturns the evident verdict of voters.

The scope of disputes is widened by the opportunity of an election tribunal where politicians can disagree with election figures as well as another chance where courts are allowed to deal with matters on eligibility. This has emboldened a poor spirit of sportsmanship in which politicians hop from one platform to another in the hope that one strategy might just pay off. However, no one can stop any person from using the platforms because they exist within the framework of the rule of law. Anyone with appropriate ‘locus’ can thus approach the judiciary which naturally has its own bad eggs.

The above background establishes why the political opponents of Governor Godwin Obaseki of Edo state have been in court with the objective of reversing the reelection of the governor at the September 19, 2020 governorship contest in the state.

In a suit marked FHC/B/CS/74/2020, they urged the court to not only invalidate Obaseki’s candidacy but to also restrain INEC from recognising him as a contestant in the gubernatorial contest because Obaseki, according to them, forged his academic credentials. But the University of Ibadan which issued the certificate in question sent her Deputy Registrar Legal to the court to testify in favour of the governor. Based on this, Justice Ahmed Mohammed of the Federal High Court, Abuja who presided at the hearing rejected the unsubstantiated claims by the plaintiffs.

As if propelled by instinct to break the case in simple terms for all to comprehend, Justice Mohammed explained that for the Plaintiffs to insist that Obaseki forged his certificate, even after the school confirmed the genuineness of the document, was akin to alleging that someone has no father, even in the presence of the person’s father.

One would have thought that such wise counselling was enough to halt the case because the ruling appeared quite convincing. Indeed, as if they clearly understood the judgment and that it further reinforced the voters’ actual mandate, market women in Benin City, the Edo state capital, danced round major streets in the City to celebrate their governor. But that was not the perspective of the plaintiffs about the case.

They were instead dissatisfied with the high court decision and decided to approach the Appeal Court to challenge the judgment of the lower court. Last Thursday March 18, 2021, Justice Stephen Adah of the Court of Appeal Abuja Division reiterated Justice Mohammed’s earlier verdict, but this time, with costs in favour of Governor Obaseki, his party and the electoral body. Some people would regard the entire episode as an unnecessary waste of the rather precious time of our courts which have piles of files of poor litigants unattended to because of the nature of our politics.

Sadly, the trend of the refusal of our politicians to play by the rules is even more disgusting in another state where on the same day as Obaseki’s case, two different courts made contradictory rulings on the same matter. The issue had to do with an election to the vacant seat of the Imo North District in the Senate which was held on December 5, 2020. Though won by the APC, no candidate was returned as elected because of a dispute between two candidates of the party.

Last Thursday March 18, 2021, Justice Taiwo Taiwo of the Federal High Court, Abuja having convinced himself that Senator Ifeanyi Ararume was the authentic candidate of the APC ordered INEC to issue Ararume with a certificate of return within 72 hours. While the over-joyed candidate and his supporters were still rejoicing, an Owerri High Court presided over by Justice E. O. Agaba made a pronouncement which clearly reversed the order, leaving the people of Imo North Senatorial District without representation in the Senate. Considering that our clime has since become a society of electioneering without end, no one can fathom when this would end.

Thus, except care is taken to reverse our now entrenched political culture of distraction to governance, either at the legislative or executive branch, it is our society that would remain shortchanged. In the case of Edo, one can only hope that our politicians would allow Obaseki to concentrate on governance so as to improve the living standards of the people. Our fears are supported by precedents.

In 2018, when it became clear that the APC which produced Governor Obaseki in his first term was the same one that was distracting him over their pursuit of personal gains, I appealed to them in my article titled “Edo APC: Let Obaseki work” published on September 9, that year. A year later, the distraction had become unbearable amidst threats of widespread infectious diseases; with no politician listening to the warnings by the World Health Organization (WHO). This made me to write another article titled “Edo politicians: Remember Lassa Fever” published on January 25, 2020 with a plea to our politicians to allow the governor face the health challenges of our people especially those in Edo North where the disease had claimed casualties.

The new distraction after the elections has been frivolous political litigations. While election petitions and some other substantive cases can entrench democracy, the idea of suffocating our judicial system with shallow cases is unacceptable. We need to particularly denounce the boring case against Godwin Obaseki in which his opponents made no effort to painstakingly investigate their allegations before testing them in court.

As the case of the degree certificate forgery has shown, neither those who made the allegation, nor their witnesses visited the University of Ibadan to verify their claim of forgery. They merely compiled a series of allegations in the hope that one might work. It all started with the politics of exclusion in which APC concocted stories to arrive at a predetermined end at the party primaries stage, but to transplant and more than once represent such political rascality of concoctions to courts of different jurisdictions is deplorable.

Court of Appeal

Why Section 84(12) of Electoral Act 2022 scares Nigeria politicians

What Exactly is in Section 84(12) of the Electoral Act?

What the Provisions of the Constitution say About Appointees of Government Seeking to Contest Elections

On the Umuahia High Court Judgment

Boring legal cases against Governor Obaseki

In most democracies, the term ‘election’ means far more than its voting segment of casting ballots which many erroneously over-patronize. In truth, election is not an event but a process of inter-related events which must holistically be handled to get an undisputed winner.