By Mike Ozekhome

INTRODUCTION

SECTIONS 84 AND 318 OF THE CONSTITUTION CONSIDERED (Continues)

Last week, we commenced our analysis of sections 84(12) and 318 of the 1999 Constitution. Today, we x-ray these sections further to demonstrate that the sections have been so gravely misinterpreted that the NASS could frontally assail the sanctity of the Constitution by enacting section 84(12) of the amended Electoral Act.

More significantly, we must look at the definition of “public officer” in part 1 of the 5th schedule of the Constitution. There, a “public officer” is defined as “a person holding any of the offices specified in part II of this schedule. The person holding the said offices specifically include, amongst others, the President; Vice President; Senate President and his Vice; Speaker of the House of Representatives; Governor; Deputy Governor; CJN; Justices of the Supreme Court; Appeal Court; Attorney General of the Federation and of States; Ministers and Commissioners; SGF; Ambassadors; Chairman; Members and Staff of CCB/CCT; of LGCs; Statutory corporations and companies in which the federal or state Governments or LGCs have controlling interest.”

This category of persons therefore fall within the scope of “public officers” and “public servants”. I humbly submit therefore that political appointees fall within the scope of public servants, such as to enjoy whatever favours are granted to persons within the public service of the Federation or of the State. “Service” is defined by by the Cambridge Dictionary as “as helping or doing work for someone”; “or providing a particular thing that people need”.

The word “includes” as defined Meridian Webster Dictionary, means “to take in or comprise as a part of a whole or group”. It becomes clear therefore that section 318 did not exhaustively list all those envisaged as “public servants”. Those listed merely comprise of “a part of a whole or group”, and nothing more. Can anyone seriously argue that ministers, Commissioners and such persons who are in the “service” of the Federation and States in different capacities are therefore political appointees not then in the public service of such governments? I humbly submit that the cases of DADA V ADEYEYE (2005) 3 NWLR (920) 1; ONI V FAYEMI (supra);  WILSON V AG FEDERATION (supra); AG BENDEL STATE  v AIDEYAN (supra); ADAMU V TAKORI (supra); have been grossly misapplied and misinterpreted exponents of the now struck down section 84(12).

In any event, why should the NASS be involved in legislating for political parties as to who should be their contestants or voting delegates, thus restricting their constitutionally guaranteed rights?  In deepening the plenitude and amplitude of democracy, are the political parties not entitled to be accorded the freedom and latitude to regulate their own activities? I think they are.

Why then should the NASS make a law discriminating against political appointees when they themselves are free to contest, vote and be voted for as delegates at the same congress and conventions? How fair is that, on both moral and legal grounds, aside its unconstitutionality as I have strenuously pointed out above?

NO DIFFERENCE BETWEEN VOTING AT GENERAL ELECTIONS AND VOTING AT POLITICAL PARTY CONGRESSES OR CONVENTIONS

I have heard the argument that the eligibility to vote or be voted for only affects general elections, and not elections at party congresses or conventions. I humbly disagree. Voting is voting; and election is election, whether at a general election, or at an election to elect candidates of political parties at party conventions or congresses. Both have to do with exercising one’s right to make a choice as between two or more candidates at an election through the ballot, or a show of hands. This is clear from the provisions of sections 82, 83 and 84 of the Electoral Act, 2022 (as amended). As in any general election, election by a political party at its congress or convention is invalid without the involvement of INEC. “Every registered political party shall give INEC 21 days notice of any convention, congress, conference or meeting convened for the purpose of ‘merger’ and electing members of its executive committee, other governing bodies or nominating candidates for any of the elective offices specified in this Act” (section 82(1)). See also sections 82 (2) and 82 (4).

The clincher is found in sections 82 (5), which provides that “failure of a political party to notify the Commission as stated in subsection 1 shall render the convention, congress, conference or meeting invalid”.

The non-observance of this critical provision was part of the reasons both the Court of Appeal and Supreme Court declared the votes cast at the 2015 APC primaries in Zamfara state “wasted votes”. I personally handled both cases against the APC. The Supreme Court agreed with my invocation of the doctrine of “consequential relief”, which I had commended to it, and ordered that the CANDIDATE of the political party (NOT the POLITICAL PARTY) that had the next highest number of votes and constitutional spread in the local Government Areas of Zamfara State should produce the next Governor. That was how Dr Bello Mohammed Matawalle became Governor of Zamfara State under the platform of the PDP. See APC & ANOR VS. KABIRU MARAFA & 170 ORS (2020) 6 NWLR (Pt 1721) 383; APC & ORS VS KARFI & 2 ORS (2017) LPELR – 47024 (SC).

This point becomes clearer when one reads section 84 (3) of the Electoral Act, 2020, as amended. It prohibits a political party from imposing nomination qualification or disqualification criteria, measures, or conditions on any aspirant or candidate for any election in its Constitution, guidelines, or rules for nomination of candidates for elections, except as prescribed under section 65, 66, 106, 107, 131, 137, 177 and 187 of the Constitution. Why will the same NASS audaciously ignore section 84 (3) and make section 84 (12) and (13) in the same Act to bar certain persons from contesting in those same elections which it had warned political parties not to go into, when the Constitution itself has not specifically provided for such? Respectfully, the provision of section 84(12) is not only strange, but bizarre.

We must bring in here the rule of statutory interpretation, to the effect that the provisions of the Constitution are to be read as a whole; and not in parts. Can such critics argue that the same Constitution will take away with the left hand in sections 84 (12) and 318 what it has itself donated in sections 40, 42, 65 (1) and (2), 66 (1), 106, 107 (1), 137 (1) (g), 147 (4), 182 and192 (3), thereof? Can it be argued that the same section 84 which in it sub-section (3) forbade political parties from imposing nomination qualifications or disqualifications criteria, or impose conditions on aspirants or candidates for any election, will turn around in subsections 12 and 13 to outrightly ban such candidates from voting or being voted for, simply because they are political appointees? I think not. See the cases of Nafiu Rabiu v. The State (1980) 8-11 SC-130; Abegunde v. Ondo State House of Assembly & Ors (2015) LPELR-24588 (SC), wherein the Supreme Court emphasized the need to read provisions of the Constitution together as a whole and not in parts.

Some people have cited in aid of their arguments the provisions of section 228(a) of the 1999 Constitution which provides that:

“The NASS may by law provide guidelines and rules to ensure INTERNAL DEMOCRACY within political parties, including making laws for the conduct of party primaries, party congresses and party conventions”.

This section actually encourages INTERNAL DEMOCRACY within political parties, which is designed to open up the political space and give every member a feeling of belonging. It was never designed or intended to restrict such members from voting and being voted for. The section actually frontally defeats section 84 (12) and (13) of the Electoral Act, 2022, as amended, and renders them unconstitutional, null and void.

THE JUDGMENT OF THE HIGH COURT IN UMUAHIA

It is with the solid background of the law and constitutionalism espoused above that I totally agree with the judgment recently delivered by Honourable Justice Evelyn Anyadike of the Federal High Court, Umuahia Division. She scored the bull’s eye in striking down the offensive subsection 12 of section 84 of the new Electoral Act in Suit No. UM/CS/26/2022: CHIEF NDUKA EDEDE V AG FEDERATION.

Most critics have never even cared to read the full order made by Justice Anyadike, so as to understand its true import and purport. She did not just restrict her order to only political appointees as is erroneously widely believed. She actually extended it to “any political appointee, political or public office holder”, as envisaged (according to these critics) in sections 84 and 318 of the 1999 Constitution. She actually aligned her order with these sections with the intention to deepen, widen and liberalize the political space. She thus held as follows:

“1. I Declare that Section 84(12) of the Electoral Act, 2022, cannot validly and constitutionally limit, remove, abrogate, disenfranchise, disqualify, and oust the constitutional right or eligibility of any political appointee, political or public office holder to vote or be voted for at any Convention or Congress of any political party for the purposes of nomination of such person or candidate for any election, where such person has “resigned, withdrawn or retired” from the said political or public office, at least 30 days before the date of the election”.

2. I Declare that the provisions of Section 84(12) of the Electoral Act, 2022, which limits, removes, abrogates, disenfranchises, disqualifies, and ousts the constitutional right and eligibility of any political appointee, political or public office holder to vote or be voted for at any Convention or Congress of any political party for the purposes of nomination of such person or candidate for any election, where such person has “resigned, withdrawn or retired” from the said political or public office, at least 30 days before the date of the election, is grossly ultra vires and inconsistent with Sections 6(6)(a) & (b), 66(1)(f), 107(1)(f), 137(1)(g) and 182(1)(g) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and therefore unconstitutional, invalid, illegal, null, void and of no effect whatsoever.
3. I hereby nullify and set aside Section 84(12) of the Electoral Act, 2022, for being unconstitutional, invalid, null and void to the extent of its inconsistency with Sections 66(1)(f), 107(1)(f), 137(1)(g) and 182(1)(g) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
4. I hereby order the Defendant (The Attorney General of the Federation) to delete the provisions of Section 84(12) from the Electoral Act, 2022, with immediate effect.”

I respectfully agree with this judgment which remains valid until set aside by a higher appellate court. See the cases of AGBON-OJEME V. SALO-OJEME (2020) LPELR 49688(CA); NKWOKEDI & ORS V. OKUGO & ORS (2002) LPELR-2123(SC); EKPE V. EKURE & ANOR (2014) LPELR-24674(CA); UNITY BANK V. ONUMINYA (2019) LPELR-47507(CA). We shall continue our discourse next week, by God’s grace.

FUN TIMES

“Four men are in the hospital waiting room because their wives are having babies. A nurse approaches the first guy and says, “Congratulations! You’re the father of twins.” “That’s odd,” answers the man. “I work for the Minnesota Twins!” A nurse then yells the second man, “Congratulations! You’re the father of triplets!” “That’s weird,” answers the second man. “I work for the 3M company!” A nurse goes up to the third man saying, “Congratulations! You’re the father of quadruplets.” “That’s strange,” he answers. “I work for the Four Seasons hotel!” The last man begins groaning and banging his head against the wall. “What’s wrong?” the others ask. “I work for 7 Up!”-Anonymous.

THOUGHT FOR THE WEEK

“The illegal we do immediately. The unconstitutional takes a little longer.” (Henry Kissinger).