News Analysis: Electoral Act, Section 84(12) and the unending controversy

Has the controversial generated by the provision of Section 84(12) of the Electoral Act been laid to rest with the ruling by the Federal High Court in Umuahia, Abia State, which declared it a violation of the Constitution?

The controversy was stoked by President Muhammadu Buhari, who while signing the new Electoral Act into law in February, called the attention of the National Assembly to that particular section, which he said must be expunged because it violated the Constitution and breached the rights of government appointees.

The clause reads: “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 President further wrote to both chambers of the National Assembly, seeking amendment, by way of deleting the provision. But the Senate rejected the amendment during plenary.

Senator Enyinnaya Abaribe (Abia South), while contributing to the debate, aimed his salvo at political appointees who want to eat their cake and still have it.

He said: “There are certain things that we see, which we think we don’t even have to come here to debate.

“One of those things is the fact that in every democracy all over the world, there are certain rules, which we don’t need to be told about. And that is that you cannot be a referee and a player on the same field. It is either you’re a referee or a player.

“So, every other place in the world where democracy is practiced, including Nigeria, we don’t need to be told that if we want to run for office, we have to resign. That is a sine qua non that we don’t even need to debate.

“Yet here we are today in Nigeria, and people think they can sit in an office, become candidates, continue to sit in that office until the date of election and contest the election.

“So, how would we continue to debase democracy in this way?

Another Senator, Smart Adeyemi (Kogi West), said it is undemocratic to be a judge in one’s own case.

He said: “One of the hallmarks of democracy is justice, fairness and equity.

“Indeed, Mr. President, it is a settled matter in law that you cannot be a judge over your own case.

“In any election, where people have the added advantage of holding executive power, either directly, by proxy or by appointment, for such people to have access and compete with others who came from the street, I think it is an unjust society.

“Therefore, Mr. President, I disagree with all the arguments on the need to consider a decision that has already been settled.”

As potent as the arguments by the two senators may have been, Justice Evelyn Anyadike, held that the section was unconstitutional, invalid, illegal, null, void and of no effect whatsoever, saying it ought to have been struck out.

The case against the section was instituted by a lawyer and chieftain of Action Alliance (AA) party, Mr. Nduka Edede, who had joined the Attorney General of the Federation as the Defendant

He had asked the court to determine whether Section 84(12), when read together with Sections 66(1)(f) 107(1)(f)(137(1)(f) and 182(1)(f) of the 1999 Constitution, was not inconsistent.

The court in the suit, marked FHC/UM/CS/26/2022, agreed with the submissions, and ordered that Section 84(12) of the Electoral Act was inconsistent with the rights of Nigerian citizens.

But Nigerians have been baffled with the speed with which the Federal Government through the office of the Attorney General of the Federation and Minister of Justice promised to give effect to the court judgment.

“The judgment of the court will be recognized by the government printers in printing the Electoral Act.

“The Act will be gazetted factoring the effect of the judgment into consideration and deleting the constitutionally offensive provision accordingly.

“The provision of Section 84(12) of the Electoral Act 2022 is not part of our law and will be so treated accordingly.

“This is in line with the dictates of chapter 7, Part 4, Section 287 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) on enforcement of decisions that makes it a point of duty and obligation on all authorities and persons to have the judgment of the Federal High Court, among others, to be enforced,” Umar Jibrilu Gwandu, Special Assistant on Media and Public Relations Office of the Attorney General of the Federation and Minister of Justice said immediately after the verdict.

The ruling favours some political office holders, including the Attorney-General himself, the Vice President, Minister of Transportation, among others, who are eyeing elective positions in 2023.

Former Lagos lawmaker and a member of the All Progressives Congress (APC) in Lagos, Adebowale Olasoji, said there was nothing wrong with the judgement, which he said is in line with what is obtainable anywhere presidential system of government is been practiced.

But Lagos lawyer, Ebun-Olu Adegboruwa (SAN) said the judgement should be challenged by human rights groups and lovers of democracy.

He said: “Judgment of the Federal High Court, Umuahia, ‘nullifying’ section 84(12) of the Electoral Act: May the judiciary (lawyers and judges) not destroy Nigeria in our lifetime.

“The Electoral Act is an act of the National Assembly. How can you ‘nullify’ an Act without joining the institution that made the Act, so that they can be heard concerning what they did?

“When a defendant (Federal Government) rejoices over a judgment delivered against it as a party, then you know there is problem in Nigeria.

“Let the National Assembly, the political parties and NGOs appeal against the judgment as interested parties.

“Why do you want to hold on to your office as a political appointee and at the same time be a candidate in an election?

“May Nigeria not happen to us in this way.”