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Amended Electoral Act judgement: Malami under fire

By Ben Ogbemudia, Nathaniel Zacchaeus, David Lawani, Cajetan Mmuta, Dennis Mernyi and Oludamisi Ojo
The Senate has faulted the position of the Attorney-General of the Federation (AGF) and Minister of Justice, Abubakar Malami (SAN), on the court judgement delivered by a Federal High Court, sitting in Umuahia, the Abia State capital, earlier on Friday.

The red chamber wondered why the AGF did not wait to see if the federal parliament would appeal the case before making a hasty decision on it.

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The Senate had earlier on Friday told one of our correspondents that it was not aware of any court judgment which struck out the controversial Section 84 (12) from the newly amended Electoral Act 2022.

The spokesman, Dr Ajibola Basiru, stated this while responding to a question put to him on the matter in Abuja.

The Federal High Court sitting in Umuahia, the Abia State capital, had earlier on Friday, ordered that Section 84 (12) should be deleted from the newly amended Electoral Act 2022.

President Muhammadu Buhari had penultimate week, written to the National Assembly, urging it to delete the controversial section by a way of amendment.

The two chambers of the federal parliament, however, refused the President’s request by voting against it.

The court in a judgement delivered by Justice Evelyn Anyadike, held that the section was unconstitutional, invalid, illegal, null, void, and of no effect whatsoever.

She said it ought to be removed as it could not stand since “it violates the clear provisions of the constitution.”

But the Senate spokesperson, Basiru, insisted that he would not react to a story read in the media.

He said he would only react when a copy of the verdict is served on the National Assembly.

However, in a statement late Friday evening, the office of the AGF pledged to act on the court judgement.

This was confirmed via a statement by the Special Assistant on Media and Public Relations to the minister, Dr Umar Jibrilu Gwandu, obtained by our correspondent in Abuja.

The statement read, “The office of the Attorney General of the Federation and Minister of Justice will accordingly give effect to the court judgment in line with the dictates of the law and the spirit of the judgment.

“The judgment of the court will be recognised by the government printers in printing the Electoral Act.

“The Act will be gazetted factoring the effect of the judgment into consideration and deleting the constitutionally offensive provision accordingly.

However, Basiru in an interview with our correspondent, faulted the position of the minister when contacted by our correspondent on Thursday night.

He said, “The questions Nigerian may ask the Honourable Attorney-General of the Federation are: has his office been served with an enrolled order of the Federal High Court reportedly delivered in Umuahia today or he is relying on media reports?

“Has the Honourable Attorney-General foreclosed right of appeal of the defendants or any interested party?

“Will this be a standard practice from his office henceforth in promptly abiding by courts of the first instance without exploring right of appeal?”

It will be recalled that President Buhari had while signing the amended Electoral Act urged the National Assembly to delete the provision.

He said it violated the constitution and breached the rights of government appointees.

The President, thereafter, wrote a letter to both chambers of the National Assembly seeking amendment by way of deleting the provision.

The proposed amendment was rejected in the plenary by two chambers.

*Judgment is a grave error, say, Falana, other senior lawyers, groups

Senior Advocate of Nigeria and human rights advocate, Femi Falana, called the court order that Section 84(12) of the amended Electoral Act be deleted as a great error.

The contentious section stipulates that “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 nomination of candidates for any election.”

Another SAN, Mba Ukweni, said the National Assembly should challenge the judgment at the Court of Appeal.

He said: “If one wants to contest an election, you resign from your position. For instance, if somebody is working in INEC, you cannot run in an election after some time. The law has a reason for that.

“An elective office is different from an appointment. It has been there and it doesn’t violate any person’s rights.

Constitutional and human rights lawyer, Dr Kayode Ajulo, said the judgement could not stand in the face of the law.

He also predicted a higher risk for political office holders who may want to take advantage of it.

Ajulo said the swift reaction of the Federal Government and the office of the Attorney General of the Federation to the court ruling “leaves too much to be desired of the ruling All Progressives Congress.”

Continuing, he said: “If the All Progressives Congress should rely on the ephemeral judgment of the Court and proceed to permit Political Appointees to vote and contest at its primaries and conventions, the same is a disaster going somewhere to happen.

On his part, another senior lawyer, Niyi Akintola, said the judgment was in order.

He said: “The constitution guarantees us the right to vote and be voted for. That aspect of Section 84 which they (NASS) ought to have removed was what the President pointed out.

“They should have known that the section that says that a political appointee should not contest should have been retained as against to vote and be voted for.

Asked whether the National Assembly could challenge the decision, Akintola said: “Let them go ahead. I don’t think there would be any changes. It is very clear. You have the right to vote.

“Why should I say you should not vote because you are a political appointee? No act of the National Assembly should conflict with the position of the constitution. Section 84 of the Act conflicts with the constitution. Every other law should come under the constitution.”

An Akure-based lawyer and chartered arbitrator, Aki Amuluku, said, “Ordinarily, a court of competent jurisdiction can set aside and delete a provision of an enactment that is inconsistent with the constitution of Nigeria, as it was obtainable in LABOUR PARTY V INEC & OTHERS when the LP challenged the provisions of Section 142(2) of the Electoral Act 2010 (as amended).

“The clear departure cropped up in the instant scenario when necessary parties were not joined. The speed with which the judgment was obtained also calls for a great deal of concern as it affects our adjudicatory system.

“More importantly, the A. G. of the federation who is supposed to be a Defendant (and a Defendant) in the instant, acted as if he is the claimant, by expressly reacting to adhere to the judgment of the court with a speed of light.”

Another senior lawyer, Chibunna Okoli-Akirika, said, “The truth is that that ruling delivered by the Federal High Court, Umuahia, Abia State, is in tandem with the constitutional requirements.

Also, Ben Ezeuzu, a SAN, said, “As far as I am concerned, the judge gave that interpretation of section 84 (12), saying it’s unconstitutional but when you place it side by side with other jurisdictions and constitutionality; how it’s practiced, I think that law made by the National Assembly tries to bring sanity to political office holding.

“So, if you know that the people love you and you can deliver that the people trust you, especially, over the one you have done, you hold peace then you come to us, talk to us and tell us; now I am not a minister again but look at the track record. With this track record, I want to be a senator, I want to be a member of the house and I want to be this or that. So, most of us that are activists, we took that ruling on bad faith; it’s not a ruling that activist lawyers are happy with.”

An Abuja-based legal practitioner, Emmanuel Ukera, stated that he agrees that the decision of the court is sound and reflective of the extant position of law on the matter but noted that section 84 of the EA, 2022 is desirable for the neutrality of the political process and the NASS should through a constitutional amendment at the earliest opportunity reintroduce the provision dealing with the restriction on the right of political office holders from participating at party primaries.

“I don’t believe the decision of the court has settled the issue with a seal of finality because the decision of the court may be subject of appeal up to the Supreme Court.

Meanwhile, the Executive Director, Yiaga Africa, Itodo Samson, has advised the National Assembly to challenge the attempt by the AGF to usurp its power, describing it as the most irresponsible and unfortunate Act.

Idoto was responding to the question following a ruling by the court for an amendment of a section of the Electoral Act which gives leverage to political appointees to contest party primaries without resigning despite the Court having earlier ordered FG to remove section 84 (12) from Electoral Act.

“The NJC should sanction the judge for delivering such an order. The ruling cannot stand the test of time because I believe the Supreme Court or another appellate court will thrash the ruling. The NASS should appeal this matter in the interest of our democratic institutions,” he said.

Also, a former member of the House of Representatives and a chieftain of the All Progressives Congress (APC), Dr Samson Osagie, has maintained that the judgment by the Abia State high court cannot stand the test of anything good because it didn’t join the National Assembly which enacted the law.

He said it will be rape on the democratic structures if appointees of government who want to contest for elective positions are allowed to continue to hold their seats after an expressly clear proviso has been made for it in the Electoral Act 2022.

Commenting on the effect of the judgement on Nigeria’s nascent democracy, another legal practitioner and adviser to the Benue State Internal Revenue Service, George Usongu, said it is no doubt a bad law.

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“I think it is bad law to allow appointees to remain in the office whilst contesting primaries or delegates but I think that the political parties have formulated their guidelines for congresses and in PDP for instance, appointees contesting to be candidates or delegates must resign their appointment.

“The decision of the court remains valid and subsisting until it’s set aside by a superior court of record.

In the meantime, a newly sworn-in nation commissioner of the Independent National Electoral Commission (INEC), Haruna Ahmed, said the commission is yet to be properly served on the matter where the court had instructed the Federal Government to expunged Section 84, subsection 2 of the Electoral Act.

He said as soon as the commission is served, there is a standing committee on legal matters in the commission who will meet and then forward their recommendations to the commission for a decision and that the commission meets virtually every Thursday, and that he is sure a position will be communicated once the meeting is held.

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