1999 Constitution, S. 84(12) of Electoral Act, Judgment of the Federal High Court, Umuahia: The Facts To The Questions

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By: Akinloye Oyeniyi.

  1. Can courts declare any section of any law made by the National Assembly invalid if such contravenes the Constitution?

Yes. Section 251(1q) of the Constitution is clear on this. It says the Federal High Court shall have and exercise jurisdiction in the operation and interpretation of the constitution in so far it affects the Federal Government or any of its agencies. Section 315(3) also gives jurisdiction to courts.

  1. Can any law contravening any provisions of the constitution be voided?

Yes. Section 1(3) of the Constitution says the constitution is supreme and any law inconsistent with its provisions shall be void to the extent of such inconsistency.

  1. Are laws inconsistent with the constitution invalid automatically?

No. The invalidity of such laws must be pronounced by a competent court (Federal High Court and Supreme Court) with jurisdiction depending on the parties involved.

In Ishola v. Ajiboye (1994) 7-8 SCNJ (Pt. 1) 1, (1994) 6 NWLR (Pt.352) 506, the Supreme Court held that the Constitution is not only supreme when another law is inconsistent with it, but also when another law seeks to compete with it in an area already covered by the Constitution.

  1. Are there constitutional provisions on persons resigning to contest for elections?

Yes. For the presidential election, Section 137 (1) (g) of the 1999 Constitution (as amended) provides that “A person shall not be qualified for election to the office of the president if being a person employed in the civil or public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days before the date of the election.”

For election into the Senate or the House of Representatives, Section 66 (1) (f) of the Constitution says that “No person shall be qualified for election to the Senate or the House of Representatives if he is a person employed in the public service of the Federation or of any State and has not resigned, withdrawn or retired from such employment thirty days before the date of the election.”

For governorship election, Section 182 (1) (g) of the extant Nigerian Constitution states that “No person shall be qualified for election to the office of Governor of a State if 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.”

For membership of House of Assembly, Section 107 (1) (f) states clearly that “No person shall be qualified for election to a House of Assembly if 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 the election.”

  1. Are political appointees employees in the public service of the Federation of any state?

No. According to Section 318(1) of the Constitution, public service of the Federation means the service of the federation in any capacity in respect of the Government of the Federation and includes:

a. Clerk or other staff of the National Assembly or of each House of the National Assembly;

b. Member of staff of the Supreme Court, the Court of Appeal, the Federal High Court, the High Court of the Federal Capital Territory, Abuja, the Sharia Court of Appeal of the Federal Capital Territory, Abuja, the Customary Court of Appeal of the Federal Capital Territory, Abuja or other courts established for the Federation by this Constitution and by an Act of the National Assembly;

c. Member of staff of any commission or authority established for the Federation by this Constitution or by an Act of the National Assembly;

d. Staff of any area Council;

e. Staff of any statutory Corporation established by an Act of the National Assembly;

f. Staff of any educational institution established or financed principally by the Government of the Federation;

g. Staff of any company or enterprise in which the Government of the Federation or its agency owns controlling shares or interest; and

h. Members or officers of the armed forces of the Federation or the Nigeria Police Force or other government security agencies established by law;

The Section also made likesome provisions for public service of the state.

In OJONYE V. ONU & ORS(2018) LPELR-44223(CA), the Court held that political appointees hold office at the pleasure of the Chief Executive (appointor) and they are not public servants as provided for under the Constitution.

6.
Is Section 84(12) of the Electoral Act, 2022 contravening any provisions of the Constitution.

No. The constitution made provision for persons deemed to be federal and state public service under Section 318(1) to resign at least 30 days before election.

It is also neither contravening the right to assemble freely and associate with other persons as provided in Section 40 nor the right to form a political party as provided for under Section 221 of the Constitution.

  1. Is Section 84(12) of the Electoral Act 2022 the same as the constitutional provisions on at least 30 days before the elections?

No. Section 84(12) says “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 such persons or other candidates for any election.

Political appointees and persons in public service of the Federation and states are two classes of persons. While the those in public service have from the time preceding their party primaries to at least 30 days to election day to resign, the political appointees are to resign at no stipulated days but must do so before they can be voting delegates or be voted for in their party primaries or congresses.

  1. Is there a difference in the Constitution and the Electoral Act provisions?

Yes. While the Constitution stipulates that public office holders resign “at least” 30 days before the elections they are interested in; which presupposes that such public officers could indeed resign earlier than the 30 days, the Electoral Act stipulates that political appointees resign before party primaries/congresses where candidates are to emerge.

  1. Has the National Assembly negated the constitutional “at least 30 days” by Section 84(12) of the Electoral Act?

No. The National Assembly has only exercised its powers over where the constitution says it may cover, by stipulating a definitive time that such officials resign.

In Section 228(a) the constitution says it “…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”

  1. Are there laws on the matter before coming of the Section 84(12)?

Not really. Though political parties have always been having such in their party primary guidelines and persons have always been complying, but the All Progressives Congress (APC) took it further to give definite time for its aspiring party officials to vacate office before primaries/congresses. In Article 31(1)(iii) of its Constitution, the party states that “Any party office holder interested in contesting for an elective office (whether party office or office in general election) shall resign and leave office 30 days prior to the dare of nomination or party primary for the office he or she is seeking to contest”

  1. Is the judgement of the Federal High Court, Umuahia valid; and are there ways out of it?

Yes until set aside. But the National Assembly, the political parties and civil society organisations can appeal within stipulated time against the ruling as interested parties whether gazetted or not.

The National Assembly and States assembly in future should also stipulate in the constitution, a definitive time for resignation of both public officials and political appointees before party primaries so as to create a level playing ground for all aspirants.

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