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).
Sokoto Guber: PDP Loses At Tribunal
The Sokoto Governorship Election Petition Tribunal has affirmed the election of Ahmed Aliyu Sokoto as the duly elected governor of the state.
The three-man panel led by Justice Haruna Msheila in its ruling dismissed the petition of the Peoples Democratic Party (PDP), and its candidate, Saidu Umar challenging the victory of the APC and its candidate, Ahmad Aliyu in the March governorship election.
In a unanimous judgment, the Tribunal Chairman, Justice Haruna Mshelia, said the Petitioners were unable to prove the six grounds formulated in the petition.
He said the grounds bordered on alleged ineligibility for Aliyu and Gobir to contest, falsification of certificates, variation of names, election frauds and non-compliance with electoral guidelines.
Msheila said the petitioners were unable to prove the allegations beyond reasonable doubt as required by law, saying 70 per cent of exhibits were out of context because they relate to State Assembly elections conducted on the same dates.
According to him, to prove forgery two different documents of persons needed to be presented while the variation of names issues was a settled Supreme Court provision.
He said three subpoena witnesses were not tenable as they were not makers of the documents from the alleged primary school while the other 28 polling units agents testified could not identify themselves along with their roles.
The Tribunal Chairman said the alleged 138 polling units frauds were not adduced to indicate substantial non-compliance of the elections marred the election outcome.
Mshelia added that the tribunal dismissed all the preliminary objections on competency to institute the case by the respondents as the petitioners duly linked the grounds in the petition.
He dismissed the petition for lack of merit and failure to prove the allegations by the petitioner.
Tribunal Upholds Kefas’ Election As Taraba Governor
The Taraba State governorship election petition tribunal sitting in Jalingo, yesterday, upheld the election of Agbu Kefas of the Peoples Democratic Party,(PDP) as the governor of the state.
The three-man panel headed by Justice G.A Sunmonu dismissed the petition jointly filed by the New Nigerian Peoples Party, NNPP, and its governorship candidate in the March 18, 2023 election, Professor Yahaya Sani, on the grounds of lack of sufficient evidence.
NNPP, and its gubernatorial candidate, had earlier filed a petition before the tribunal seeking the cancellation of the election which they alleged was characterised by irregularities.
Another relief sought by the NNPP and its guber candidate was for the tribunal to order a fresh election in the state.
The party also alleged non-compliance with the electoral Act 2022, as a major reason for its demand for the cancellation of the election.
The party, which also alleged that the incumbent governor of the state was not duly elected by a majority of lawful votes cast, earlier urged the tribunal to nullify the certificate of return issued to the governor by the Independent National Electoral Commission, INEC.
Delivering judgment, the panel unanimously ruled that the petition filed by both NNPP and its gubernatorial candidate lacked merit.
The three-man panel, collectively dismissed the petition, stating that the petitioners failed to justify the relief they sought.
Elated by the judgment, the Deputy Governor, Aminu Alkali, called on the NNPP and other opposition political parties in the state to join hands with the incumbent governor to move the state forward.
Also overwhelmed by the judgment, the counsels to the PDP, applauded the panel for the judgment.
Though the counsel of the NNPP could not be reached at the time of filing this report, a chieftain of the party who spoke with The Tide source, said he was hopeful that the party will appeal the judgment.
Nigeria@63: Lawmaker Urges Patience, Says Tinubu Won’t Disappoint Nigerians
The lawmaker representing Okitipupa/Irele Federal Constituency in the House of Representatives, Hon. Jimi Odimayo has called on Nigerians to exercise patience with the administration of President Bola Tinubu, assuring that salvation was near.
Odimayo who gave this assurance in a statement issued through his Director of Media and Publicity, Mr Kayode Fasua, noted the apparent hardship in the land, and drew a comparison in the allegory of labour-room pains and the subsequent joy in strapping a newborn baby.
Odimayo said “We all must reflect on how we got to this sorry pass as a nation, counting from the year of our independence in 1960 till date: how democracy was aborted for many years through military interventions and how we are again back on track trying to improve on our democratic skills.
“However, in spite of various hiccups ranging from maladministration to corruption and other unpatriotic practices, we should renew hope, especially now that a good leader with verifiable antecedent in the person of President Bola Tinubu is in the driver’s seat.
“Ours can be assessed in the allegory of labour room pains that must be experienced during childbearing, before the mother beams with smiles at successful delivery; and that is what obtains now in the attempt by President Tinubu to right many wrongs and put Nigeria on the path to political and socio-economic greatness,”
While urging Nigerians to exercise patience and team up with all arms of government to achieve desired results, the lawmaker also called on political officeholders to tighten their belts and bend to work as justification to the electorate’s mandate.
According to him, the ballot box is the nemesis for all political leaders who failed in their vow to deliver the dividends of democracy.
“The last general elections held up many lessons for the political class, that unlike in the past, the level of voters’ awareness has risen stunningly in geometric proportions, as the people are mostly no longer for vote-buying and rigging, but are determined to scrutinise the qualities of candidates seeking their votes,” he stressed.
Odimayo similarly assured the people of his Okitipupa/Irele constituency and the entire Ondo State citizenry that he had designed various empowerment programmes and had stepped up various social infrastructural development lobbies, all of which will start manifesting soon.
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