National Assembly to appeal controversial judgement on Electoral Act

The Senate has passed a motion seeking to appeal the judgment of the Federal High Court, Umuahia, Abia State, on Section 84(12) of the Electoral Act 2022.

The Senate, in the motion, seeks to follow appropriate channels to ask the Court of Appeal to set aside the judgment.

The motion, titled “Urgent need to appeal the Judgment of the Federal High Court, Umuahia, on Suit No: FHC/UM/CS/26/2022, on Section 84(12) of the Electoral Act 2022″, was sponsored by George Sekibo (PDP-Rivers) and 81 Senators.

The judgement

Nduka Edede, a member of the Action Alliance (AA), had approached the court for the nullification of the said section on the ground that it conflicts with the 1999 Constitution.

He picked the Attorney General of Federation and Minister of Justice, as the only defendant, leaving out other important bodies such as the National Assembly and the Independent National Electoral Commission (INEC) with high stakes in the making and operation of the Electoral Act.

In her judgement on Friday, Evelyn Anyadike, agreed with the plaintiff that the provision violated the constitutional rights of Nigerian citizens.

She stated that sections 66(1)(f), 107(1)(f), 137(1)(f) and 182(1)(f) of the 1999 Constitution already provide that appointees of government seeking to contest elections were only to resign at least 30 days before the date of the election.

The Senate’s motion

Mr Sekibo in his lead debate, observed that a court in Umuahia, Abia, had in a suit marked FHC/MU/SC/26/2022, faulted the provision of Section 84(12) of the Electoral Act 2022, and declared it unconstitutional, invalid, illegal, null, void and of no effect.ⓘ

Section 84(12) of the Electoral Act 2022 states as follows:

“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.”

Mr Sekibo said the Judge, Evelyn Anyadike, in her ruling said that Section 84(12) of the Electoral Act 2022 was inconsistent with Sections 66(1)(f), 107(1)(f), 137(1)(g) and 182(1)(g) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

“Notes that for ease of reference, the sections relied upon in the judgment as stated above are as follows:

“Section 66(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 election.

“Section 107 (1)(f) (1): No person shall be qualified for election to a House of Assembly if – (f) 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.

“Section 137(1)(g) (1): A person shall not be qualified for election to the office of President if: (g) being a person employed in the civil or public service of the Federation or of any state, has not resigned, withdrawn or retired from the employment at least thirty days before the date of the election.

“Section 182(1)(g) 182 (1): No person shall be qualified for election to the office of Governor of a State if (g) 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.

“Note further that Section 4 (1,2 and 3) of the 1999 Constitution of the Federal Republic of Nigeria as amended vested the power of law making for the Federal Republic of Nigeria on the National Assembly.

“The legislative powers of the Federal Republic of Nigeria shall be vested in a National Assembly for the Federation, which shall consist of a Senate and a House of Representatives.

“Aware also that in furtherance to the powers vested in the National Assembly, the 1999 Constitution under the roles of the Executive in that deals with political parties in Section 228 (a, b and d) confers more powers on the National Assembly, more particularly on political parties and effective management of the electoral process by the Independent National Electoral Commission (INEC).

“That the National Assembly may by law provide – (a) guidelines and rules to ensure internal democracy within political parties, including making laws for the conduct of party primaries; party congresses and party conventions.

“(b) The conferment on the Independent National Electoral Commission of powers as may appear to the National Assembly to be necessary or desirable for the purpose of enabling the Commission more effectively ensure that political parties observe the practices of internal democracy, including the fair and transparent conduct of party primaries, party congresses and party conventions,” Mr Sekibo explained.

Due process

He said the Electoral Act 2022 enacted by the National Assembly followed due process of the provisions of the 1999 Constitution.Advertisements

He said the Senate believes that Section 84 (12) of the 2022 Electoral Act exclusively refers to nomination, conventions and congresses organised for candidates selection and not participation in the general election, which Sections 66(1)(f), 107(1)(f), 137(1)(g) and 182(1)(g) were referring to.

He said it was his belief that the interpretation of the meaning of the words ‘Civil Service’ and ‘Public Service’ as provided in Part IV of the 1999 constitution as amended constitution, on Interpretation, Citation and Commencement in Section 318 of the constitution, was unambiguous.

He said there was a difference between the civil service or public service and political appointments.

He said that the Senate should show concern on the judgment, especially when opportunity was not given to it to represent itself in a matter that emanated from her legitimate functions.

Mr Sekibo expressed concern that allowing the judgment to go without concern would become a precedent on which any person could go to the court and obtain judgment to ridicule the good intentions of the National Assembly as an institution.

The senators unanimously voted in support of the motion.

Reps tackle Malami

Meanwhile, the House of Representatives also on Wednesday resolved to appeal the controversial judgement.

It also decided to petition the Nigeria Judicial Council (NJC) over the circumstances surrounding the procedure of the suit in court.

In addition, the House asked the Attorney General of the Federation and Minister of Justice, Abubakar Malami not to execute the directive of the court to allow it to appeal the judgement.

These resolutions followed a point of order raised by the Minority Leader, Ndudi Elumelu (PDP, Delta) on Wednesday.

The debate

The Chief Whip, Mohammed Monguno (APC, Borno), said the judge erred on the principle of fair hearing.

He declared the judgement as a clear “violation of the elementary principle of fair hearing”, adding “In that case, the whole exercise is an exercise in futility.”

Also speaking in support of appealing the judgement, Ado Doguwa (APC, Kano), said the judgement violates the institutional and operational running of a democratic system.

“From the point of institutional and systemic operation of democracy, it is not a jungle system.?We must make a very strong statement and condemn this judgement.”

He described the judgement as an “aberration” and urged lawmakers to stand against it.

Speaking on the judgement, the Speaker, Femi Gbajabiamila, said he will not tolerate the ridiculing of the National Assembly.

He also raised suspicion on the process of the judgement and the locus of the plaintiff, noting that the fact the National Assembly was not joined as a party to the case calls for curiosity.

“I believe the president relies—(like he should) on legal advice that is given to him. He relied on the legal advice that was given to him that this section was unconstitutional. However, I cannot sit here and allow this institution which I head to be ridiculed. I hold a sacred responsibility as we all do, individually and collectively, to make sure we leave the 9th Assembly with our heads held high knowing that we have done everything we can to protect the institution.

“The fact that the National Assembly was not joined as a necessary party was very curious to me. More curious was the fact that the judgement was obtained in faraway Umuahia, when I know that the court direction says that you should file a case where the defendants are residents. It seems to me like forum shopping and venue shopping.

“Even more curious is the fact that the so-called plaintiff, in this case, had no injury that he sustained in the matter. Unless I am wrong, I don’t know him to be a political appointee or affected by the law. He was really nothing more than a meddlesome interloper.

“More curious is the fact that the power of the legislative body was usurped. Under any guise, you cannot remove punctuation, unless done by those with constitutional authority to do so.”

Mr Gbajabimaila also said the lawmakers will assume the judgement to be a mistake, and urged Mr Malami not to foreclose an appeal.

“Let me at best say a mistake was made. I will not want to ascribe anything other than a mistake was made. It is now for us to correct that mistake.

“I will appeal to the attorney general of the federation to tarry and not to usurp or go into the legitimate function of the National Assembly because apparently, he intends to carry out the order of the court. I will appeal that the attorney general should stop and desist for now and not foreclose the constitutional right of appeal,” he said.

Following his speech, Mr Gbajabiamila converted the point of order to a substantive motion.

When the motion was put to vote by the Speaker, it was overwhelmingly supported by members.

Background

President Muhammadu Buhari had signed the bill on February 25, however, with a condition that the lawmakers should expunge section 84(12) of the Act.

He said the clause constitutes a disenfranchisement of serving political office holders from voting or being voted for at conventions or congresses of any political party.

He added that it violates the Constitution.

On March 1, Mr Buhari had conveyed an executive bill to the two chambers of the National Assembly to remove the section. Although the Senate already rejected the bill, the House was yet to act on it.

It is believed that the bill will affect members of Mr Buhari’s cabinet and other appointees, including Mr Malami, who is reported to be nursing governorship ambition in his native Kebbi State.

Meanwhile, a few hours after the controversial judgement was given in Abia State, Mr Malami, in a statement by his spokesperson, Umar Gwandu, appeared to have foreclosed any appeal being filed against the judgement.

He declared that the government will enforce the verdict by gazetting the Electoral Act with the “offensive provision” deleted from it. (Premium Times)

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