Politics
Section 84 (12): To Be Or Not To Be
In the original version of the Electoral Act, Section 84 (12) comes with a sub-heading titled: “Political Appointee Not Eligible as a Voting Delegate or Aspirant.” Using this as a guide, it becomes crystal clear that the intent of the lawmakers with the introduction of Section 84 (12) was to make it impossible for a political appointee to aspire for elective office whilst still holding on to his political appointment. I honestly cannot see how this piece of legislation amounts to an amendment of the Constitution through the backdoor as some have suggested.
The definition of Section 318 of the Constitution which clarifies those to be regarded as part of the public service of the Federation also made similar provisions for public service of the State. Judicial authorities abound that political appointees hold their offices at the pleasure of the appointor and they are not civil or public servants as provided for in the Constitution. Thus, there is no apparent or implied conflict between Section 84 (12) of the Electoral Act and any of the provisions of the Constitution highlighted above, the rationale being to ensure that those who hold public office are not exposed to any situation that may lead to a conflict of interest.
In the same vein, section 84 (12) does not infringe upon the right to freely assemble and associate with other persons as provided for in Section 40 of the Constitution or the right to form a political party as provided for under Section 221 thereof. The Constitution for instance provides the right to freedom of movement for every citizen, but to travel out of Nigeria, you need a passport, without which you would not be allowed to board the plane. It is in that passport that the travelling visa to your country of destination will be imposed. The Courts have also held that the requirement for a passport as a condition to travel does not infringe upon the constitutional right of movement
In the case of Awolowo v. Ministry of Internal Affairs, a similar concept was elucidated upon by the Supreme Court, when the appellant, in that case, the late Chief Obafemi Awolowo, SAN, was standing trial for treasonable felony. He engaged the service of a British lawyer, Mr. E.F.N. Gratiaen to defend him. On arrival in Lagos, MrGratiaen was denied entry into Nigeria by the Federal Ministry of Internal affairs. The court had to determine the import of Section 21 (5) (c) of the then 1960 Constitution of the Federal Republic of Nigeria (now section 36 (6) (c ) of the 1999 Constitution, which provided that “an accused person is entitled to defend himself in person or by a legal practitioner of his own choice”. Chief Awolowo contended in that case that he was entitled to be represented by any lawyer of his choice whether indigenous or British.
Thus, the order prohibiting his lawyer, Mr Gratiaen, was ultra vires and against his right to a fair hearing. He, therefore, prayed the court to grant an order of injunction, restraining the defendant from preventing the said Mr. Gratiaen (QC) or any other British counsel who might be the counsel of his choice, from entering Nigeria to defend him in the pending charge. On the other hand, the defendants, in that case, argued that the provisions of section 13 of the Immigration Act which provides that “Notwithstanding anything in this ordinance contained, the Governor-General may, in his absolute discretion, prohibit the entry into Nigeria of any person, not being a native of Nigeria”, gives the ministry the power to refuse a non-Nigerian entry into the country. More so, in the exercise of the right conferred by Section 21 (5) (c) of the 1960 Constitution, the legal representative must be a qualified person entitled to a right of audience in Nigerian courts. Secondly, he must be available to take up the case, and therefore must be able to enter Nigeria as of right and must be a Nigerian.
The High Court of the federal territory of Lagos, per Justice Udo Udoma held that based on the above provisions, the legal representative chosen by an accused person if resident outside Nigeria must be a person who could enter Nigeria as of right and must not be anyone under any disability. In the words of the judge: “I must state at once that I do not accept as sound proposition the submission that the provision contained in Section 21 (5) (c ) of the Constitution, liberally interpreted, can be construed to entitle anyone to bring a Counsel from the United Kingdom to defend him in a criminal charge. To accept that interpretation, would be to strain language. The Constitution is a Nigerian Constitution, meant for Nigerians in Nigeria. It only runs in Nigeria. The natural consequence of this is that the legal representative contemplated in Section 21 (5) (c) ought to be someone in Nigeria, and not outside it.” This decision was affirmed by the Supreme Court in the appeal filed against it by Chief Awolowo. In a similar vein, Section 84 (12) has not stopped any citizen from contesting election but it has imposed a condition upon political appointees to first step down from their political position to seek elective office. There is no contradiction at all in this laudable provision with the Constitution.
Most political appointees are paid one form of emolument or allowance or the other by the government, with specific responsibilities to perform. Thus, even apart from the conflict of retaining an executive position and seeking elective office, how does a person occupying a political office abandon his responsibilities for which he is being paid to embark upon campaigns at the expense of the people? What justification can we give for retaining a person on the payroll of the government who already has his eyes on another assignment? Political appointees and persons in public service of the Federation and of the States are two separate and distinct classes of persons. While those in public service have not less than thirty days ahead of their party primaries to resign to contest an election, political appointees must resign before they can become voting delegates or be voted for in their party primaries or congresses. The Constitution stipulates that public office holders resign “at least” thirty days before the elections they are interested in, which presupposes that such public officers could indeed resign earlier than the 30 days, however, the Electoral Act stipulates that political appointees must resign before party primaries/congresses where candidates are to emerge.
The question to ask then is whether the National Assembly has by Section 84 (12) of the Electoral Act negated the constitutional stipulation of “at least 30 days”? Certainly not. The two concepts do not oppose themselves at all. For civil and public servants, the Constitution demands that they resign not less than thirty days prior to any election for which they seek to contest whilst Section 84 (12) simply prohibits political appointees from participating in elections to be conducted at the conventions and congresses of their political parties whilst still retaining their political appointments. In Section 228 (a), the Constitution states that the National Assembly “… may by law provide guidelines and rules to ensure internal democracy within political parties, including making laws for the conduct of the party primaries, party congresses and party convention”. Under and by virtue of Section 4 of the same Constitution, “the National Assembly shall have the power to make laws for the peace, order and good government of the Federation or any part thereof”. What then, if one may ask, could be the ‘offence’ of the National Assembly in fulfilling its mandate as directed by the Constitution?
To my mind, there is really no need for us to split hairs on this simple matter of interpretation of the Constitution and the Electoral Act. Unless as suggested by Mr. Femi Falana, SAN and many others, the executive arm has an axe to grind with the legislature over this very harmless piece of legislation, there can be no basis for the jubilation that has greeted the judgment of the Umuahia Federal High Court by the executive. We must sanitize the electoral space to remove all vestiges of manipulation and land mines. It is not in our best interest for those that we pay to perform certain duties to abscond from their sacred responsibilities in order to actualise their personal ambitions to seek elective office. They owe us the duty of fairness to surrender our mandate granted to them through their appointments should they aspire to contest any election. It is gratifying that the National Assembly and other stakeholders of our electoral system have decided to join the case to explore further interpretation by the appellate courts. That is commendable indeed or else we may soon have in our hands a ridiculous situation whereby the Chairman of INEC or even the Governor of the Central Bank of Nigeria may seek to contest election whilst still holding on to their appointments.
By: Ebun-Olu Adegboruwa
Adegboruwa, a constitutional lawyer, is a Senior Advocate of Nigeria (SAN).
He said, although he was deeply concerned about some governors and lawmakers defecting to the APC, the party was working quietly behind the scenes to stabilise its ranks and rebuild public trust.
“If you ask me whether I’m concerned about our governors leaving for APC, I am more than concerned. But leadership is a burden. As a leader of a group of equal status, I cannot determine the decisions or inactions of my colleagues, but certainly, a lot of work is being done behind the scenes,” he said.
The Bauchi governor accused the APC-led federal government of using coercive tactics to weaken the opposition, saying the ruling party was bent on turning Nigeria into a one-party state.
“You know the style of leadership of the APC-led federal government in trying to make this country a one-party state. They have the power of coercion; they have the power of everything,” he said.
Governor Mohammed, however, maintained that the defections would not derail the PDP’s resurgence, stressing that most Nigerians at the grassroots remained loyal to the party.
“Even those who left are not finding it easier because most of the people at the grassroots level are PDP and are not happy with the defections. Sometimes it is done because of permutations and calculations. But I assure you I am not going anywhere. I am in PDP, and my state has no element of division,” he explained.
Governor Mohammed revealed that more defections could occur, including from lawmakers in his state, but insisted the PDP structure in Bauchi remained solid.
“Even today, I saw in the news that one of my senators is going. They are being controlled, they are being bought, but certainly, the state is PDP. Nigerians want change, and they believe they can get it through the PDP,” he stated.
The governor emphasised that the PDP had laid the foundation for most of Nigeria’s measurable achievements under successive governments and that the party remained the only credible platform capable of providing national renewal.
“Most of the measurable achievements by the federal government were done by PDP regimes. By the grace of God, if we stand firm, we will deliver. Some of us who won as governors were not even considered capable, and here we are. That’s what will play out in 2027,” he said.
Addressing concerns over potential threats to the forthcoming convention, the PDP stalwart said the party leadership was working to resolve internal disputes and litigations aimed at destabilising preparations.
“I cannot speak for the National Working Committee, but as a leader within the party, I know they are doing their best to address issues of litigations. Many are artificially created to undermine us, but we don’t have any faction in the PDP,” he said.
He noted that while some individuals had approached the courts to stop the party’s convention, the PDP remained more organised than most opposition parties.
“Comparatively, most of the other parties are not better off than us. We are better off than most opposition parties. We are the only ones intact; with one National Secretary, one National Chairman, and one Publicity Secretary. This meeting gives hope that at the end of the day, we will deliver,” he said.
On reports of Governor Peter Mbah’s rumoured defection from the PDP, Governor Mohammed said Governor Mbah had not formally declared any intention to leave and remained a respected colleague.
“Actually, Governor Mbah has not told us his position. It is a personal decision. We cannot remove his picture before he leaves. When he leaves, we will replace him with another person. Up till now, he has not told me he’s leaving,” he said.
He also dismissed speculation surrounding Governor Siminalayi Fubara of Rivers State, describing him as a loyal member of the PDP who had endured significant challenges in office.
“He has not left the party; he is still PDP. Everybody has his own style. He is a humble young man who has gone through so much and has done well to accommodate all the problems and challenges he found himself in,” he said.
Commenting on speculations about a possible 2027 presidential project involving former President Goodluck Jonathan, the Bauchi governor said the PDP remained open to prominent figures who wished to return or associate with the party.
“People are still interested in this party, and these big names being associated with us make us happy. As governors, we have resolved to put personal interests aside. We are united and will come up with leadership that will be the best choice for Nigerians to put in Aso Rock, inshallah,” he stated.
Governor Mohammed reaffirmed his commitment to the PDP and expressed optimism that new, visionary leaders would emerge from the party in 2027 to defeat what he called the APC’s ‘deceptive’ style of politics.
“If somebody goes, just like a bird, they go, they come. Please, don’t blame anybody at the governors’ level; we are doing our best, but it is beyond our control,” he said.
In a statement following his recent visit to the United States and Rome, Mr Obi said he used the pilgrimage as an opportunity to seek divine intervention for Nigeria’s unity, peace, and responsible leadership.
He stated that after addressing members of the Friendship Club in the US and speaking at the 1st Ubuntu African Youth Assembly in Washington, he proceeded to Rome to join his wife for a spiritual retreat.
“With hearts full of gratitude, we thanked God that, despite our differences and the many challenges faced over 65 years of independence, He has kept us together as one nation,” Mr Obi said.
During the pilgrimage, the couple visited the four major Papal Basilicas in Rome — St. Mary Major, St. Paul Outside the Walls, St. John Lateran, and St. Peter’s Basilica — where they met with other Nigerian pilgrims.
“Along the way, we met many Nigerian pilgrims: men and women of faith whose faces shone with quiet hope. Together, we renewed our trust in God’s mercy and in the promise of a better Nigeria,” he added.
Reaffirming his faith in both divine providence and civic duty, Mr Obi maintained that prayer must be matched with personal and collective effort.
“Faith does not absolve us of responsibility; it calls us to action. We must each continue to do our part, with honesty, diligence, and love, for our nation’s healing and progress,” he said.
Mr Obi was accompanied by his wife, Margaret, during the pilgrimage, which also included an audience with His Holiness, Pope Leo XIV, at the Vatican City.
In a statement issued in Abuja on Saturday, HURIWA said the appointment of Prof. Amupitan, a senior law scholar from Kogi State, signalled what it described as an attempt by the President to consolidate control over the nation’s electoral process.
According to the group, intelligence available to it suggested that the new INEC chair was selected not primarily for competence but for loyalty.
“From the intelligence at our disposal, this appointment is not about competence but control. The President, who is desperate to remain in power in 2027, has chosen an ally who will do his bidding. It is now left for Prof. Amupitan to prove this wrong,” the statement read.
HURIWA expressed concern that the appointment could undermine the credibility of future elections unless the Electoral Act is urgently amended to make the use of the Bimodal Voter Accreditation System (BVAS) and INEC Result Viewing portal (IReV) mandatory and enforceable by law.
The association recalled that the 2023 presidential election was marred by what it described as irregularities, while other polls, particularly the National Assembly elections, were “relatively credible” due to the effective use of electronic accreditation and result transmission.
HURIWA also linked the recent wave of defections by opposition politicians to the ruling All Progressives Congress (APC) to what it termed the “weaponisation of state institutions.”
It claimed that many officeholders were joining the APC to avoid harassment or prosecution. “We have a President using every available state institution to weaken opposition parties,” the group alleged.
The rights body further noted the appearance of campaign billboards bearing President Tinubu’s image across parts of the country as a sign of early political campaigning and warned that such actions could increase political tension ahead of the 2027 elections.
HURIWA called on the National Assembly to prioritise electoral reforms that would strengthen INEC’s independence and ensure technological transparency in future elections.
It urged Prof. Amupitan to demonstrate impartiality and accountability in his role, adding that Nigerians and the international community would be watching closely to see whether he would uphold the commission’s integrity or serve partisan interests.
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