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Section 84 (12): To Be Or Not To Be

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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).

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2023: Southern PDP Leaders Consider Fresh Option

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Leaders of the Peoples Democratic Party (PDP) in the Southern 17 states have begun move to ensure that the presidential ticket is secured by an aspirant from one of the three geo-political zones.
In the alternative, they are also looking at a northerner with strong roots in the South.
The plan, according to sources, is to have a second strategy or an Option B, as it has become obvious that the party leadership will not yield to the demand for the presidential ticket to be specifically zoned to the South.
The Southern leaders are moving to ensure that their delegates vote only for either a particular southern aspirant or to adopt a northern candidate, who is not from the far North.
The strategy of the southern PDP leaders behind this plot is to ensure that the outcome of the PDP primary produces a win-win situation for the South, irrespective of where the candidates come from.
A chieftain, who spoke on phone, said: “We want to ensure that the South converts the disadvantage of the PDP refusing to zone the presidential position to the South in line with the rotation arrangement in the party’s constitution becomes a benefit to us.
“We will work to ensure that the South decides who the presidential candidate is, even if he is not from our zone.
“Southern delegates may come together and choose a northern candidate who has strong roots in the South. He must be somebody who has a close affinity and filial relationship with us. He must be somebody who understands the challenges facing the South and can run a government that is based on equity, justice and inclusiveness, and knows what it is to suffer injustice or the pains of the minority.”
“It is the reason why we will not support aspirants from the far North. We will rather support an aspirant whose zone has not produced any of the two positions in the Presidency. An ideal candidate for the PDP is somebody from either the South or the Northern minority.
“It is the only way we can show that without having a southern candidate; we can have a president who believes he owes the South and that the support of the southern delegates is instrumental to his victory. That means that if the South plays its card very well, it can produce a southern candidate from the North.”

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Buhari To Determine Malami,Other Returning Ministers’ Fate – Lai Mohammed

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President Muhammadu Buhari will decide the fate of those members of the Federal Executive Council (FEC) who made a u-turn on their political ambitions and continue to serve in the current administration.
Information and Culture Minister, Alhaji Lai Mohammed, who disclosed this Wednesday to newsmen after the FEC meeting at the State House, Abuja, said he will need to confirm from the president the status of the returning ministers on whether or not they have been reabsorbed into the cabinet.
He said: “The  question about ministers returning or not going, I think you need to give me more time so that I can tell you exactly what the situation is. Right now, I need to cross check. I need to confirm again from Mr President what the situation is. You see the final decision on who is going, who’s coming back, who’s not going lies with Mr. President.”
The Minister of Labour and Employment, Dr Chris Ngige; his Women Affairs counterpart, Dame Pauline Tallen; Attorney General of the Federation (AGF) and Minister of Justice, Abubakar Malami; and Minister of State for Petroleum Resources, Timpre Sylva, had earlier rescinded their decision to contest for elective offices in 2023.
Malami was physically present at Wednesday’s Council meeting, while Tallen and Sylva attended the meeting virtually from their various offices in Abuja.
Ngige is said to be away on official engagement in Durban, South Africa, where he is attending the International Labour Organization’s (ILO) global conference on Child Labour.

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2023: Ganduje Refuses To Endorse Amaechi For Presidency

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Governor Abdullahi Ganduje of Kano State has refused to endorse the former Minister of Transport, Rotimi Amaechi, for the presidency come 2023.
Amaechi visited Kano on Wednesday as part of his consultations ahead of the All Progressives Congress’ presidential primary.
The former minister had resigned from President Muhammadu Buhari’s cabinet to pursue his presidential ambition under the platform of the APC.
At the meeting, with other APC stakeholders present, Ganduje said Kano as a “swing state, will continue to swing.”
He added that Amaechi would know where the state eventually swung to at the right time.
TheTide source gathered that Amaechi, who had told the governor that the people in the APC already knew where Ganduje’s loyalty was, added that he was in Kano to convince him that he was the most qualified among the aspirants.
Our source recalled that when Amaechi visited the Governor of Lagos State, Babajide Sanwo-Olu, he was equally not endorsed as the governor told him former Governor Bola Tinubu was their rallying point.
Ganduje is also known to be an ally of Tinubu, who is also aspiring for the Presidency.
Meanwhile, Amaechi said he was more qualified than Tinubu, noting that the former Lagos governor had never been a minister, and even as a lawmaker, Tinubu only served for a few months.
He equally noted that he was more qualified than Vice President Yemi Osinbajo, adding that while Osinbajo was a commissioner in Lagos, he was already a Speaker of Rivers State House of Assembly.

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