Ahead of Nigeria’s 2023 Elections, Buhari’s Ministers Remain Unfazed as Deadline for Mandatory Resignation Nears

Some of President Muhammadu Buhari’s ministers and other political appointees believed to be eyeing political offices in 2023, have remained unperturbed over the controversial Section 84 (12) of the amended Electoral Act, which compels them to resign their current portfolios before aspiring to any elective office.

Saturday April 30, is 30 days to the primary elections of ruling All Progressives Congress (APC), when the appointees ought to resign ahead of the general election.

Interestingly, prominent lawyers, mostly Senior Advocates of Nigeria (SANs), have also remained divided over the interpretation of Section 84 (12) of the amended Electoral Act. The seeming confusion has tended to encourage the continued stay in office of the appointees, who are aspiring to either become president, governors or senators.
The National Working Committee (NWC) of the All Progressives Congress (APC) had on Wednesday released a new guideline, which stipulated that all political appointees desiring to participate in its primary elections at all levels must resign at least 30 days before the conduct of the primaries.

Section 3(i) of the APC final guidelines for the conduct of primaries, states, “No political appointee at any level shall be a voting delegate or be voted for the purpose of the nomination of candidates. Any political office holder interested in contesting for an elective office shall leave office 30 days prior to the date of election or party primary for the office sought.”

But there are indications that the ruling party may soon issue an updated guideline.
Despite declaring his intention to contest the Kebbi State governorship election, Attorney General of the Federation and Minister of Justice, Abubakar Malami, like other ministers in the Buhari cabinet, has refused to resign his position.

Others in his shoes are Minister of Transportation, Rt. Hon. Chibuike Amaechi; Minister of State for Education, Emeka Nwajuiba; and Minister of Labour and Employment, Dr. Chris Ngige, who had indicated interest to contest for president in 2023.

Considering the fact that the APC presidential primary was scheduled to hold between May 30 and June 1, Saturday marks the end of the 30 days’ grace given by the party for the political appointees to resign.
According to the schedule of activities released by the party, the governorship primary election is scheduled to hold on May 18, that for the House of Representatives is scheduled to hold on May 22, while the Senate primary poll is fixed for May 24.

By implication, therefore, Malami, a lawyer and SAN, ought to have resigned, but he is still holding on to his position.

A party source told THISDAY that the leadership of the party might withdraw the new guideline, which mandated the political appointees to resign.
“Yesterday I heard that the party is withdrawing the new guideline you are referring to, because normally if an aspirant buys the nomination form, they also give him the guidelines, but they’ve stopped doing that now,” the source stated.

National Publicity Secretary of APC, Mr. Felix Morka, informed THISDAY that the ruling party would issue an updated guideline soon, though he did not give details.

According to him, “The party will issue updated guidelines soon, after that we can discuss.”
Reacting to the development, some lawyers insisted that by the provisions of the new Electoral Act, 2022, any political appointee, who wished to vote or be voted for at the party’s convention or congresses, must resign from office 30 days to such conventions or congresses.

Speaking to THISDAY, a Lagos-based constitutional lawyer, Mr Femi Falana, SAN, stated that any aspirant, who did not resign now risked disqualification.

Falana said this had become expedient because the judgement of the Federal High Court in Umuahia nullifying the amended section that bars political appointees from participating in the party’s conventions and congresses, has been suspended by the Court of Appeal.

He stated, “The judgement of the Federal High Court they are relying on has been suspended by the Court of Appeal, there is a stay of execution, so we are back to the law. Whoever does not resign now will be disqualified from running. If any person does not resign now, he is gone. It is either you remain or you resign to go and contest.”
Justice Evelyn Ayandike of the Federal High Court in Umuahia, had in a judgement delivered last month ordered the deletion of Section 84 of the Electoral Act, which barred political appointees from participating in congresses and conventions of political parties except they resigned 30 days to such conventions and congresses.

The judge held that the section should be deleted and given no effect because it contravened the Constitution, which had already given conditions on how a person could qualify or be disqualified in any election.

In his submission, another senior lawyer, Chief Mike Ozekhome, SAN, disagreed with Falana, on the grounds that the law nullifying the said portion of the Electoral Act subsisted until set aside.
According to Ozekhome, “The truth is that until it is set aside even if it is on appeal, the judgement for now operates.”
He said that what the appeal court said was that the judgement should not be executed until the appeal was decided.

Ozekhome described the situation “as a very tricky one”, even as he expressed confidence that the appellate court would affirm the judgment of the Federal High Court, because the said section was unconstitutional.

“I agree with that judgement in Umuahia, and I believe that they will strike it down. The Constitution has already provided how one can be qualified or be disqualified from election, whether it is primary or other election.”
The senior lawyer further contended that if a law of a party contradicted the Constitution, the Constitution takes precedent.

While insisting that the constitution had already spelt out who was qualified or not, Ozekhome stressed, “You cannot now use a party’s constitution to add to that qualification, otherwise, there would be no end to it.”
He referred to the NDLEA request as an additional imposition for qualification, saying that too was “unconstitutional”.

He said the move by NDLEA was a good one which he supported but that it could not be brought in just like Justice Ekwo removed Umahi for defection.”

He maintained that the Constitution had provided how a governor should be removed from office and that defection was not one of them, adding, “a court cannot make law, the court interprets it.”
He accused Justice Ekwo of overruling the Supreme Court in the case of the federal government against Atiku by going ahead to order the removal of Umahi on account of his defection from the Peoples Democratic Party (PDP) to the APC.

Meanwhile, on the rumoured aspiration of former President Goodluck Jonathan, Falana maintained that he (Jonathan) could not participate in the 2023 presidential election.
He cited several Supreme Court decisions, which held that a person could not stay in the office of governor or president for more than eight years.

Falana stated, “Jonathan has done five years he cannot do another four, that would be nine years, the maximum is eight years.”

He dismissed claims that because the law was made in 2018, it did not affect Jonathan.

“It is not true that the law is retroactive,” he said, recalling that while some political cases were still pending in court, like Section 285, which provided that all pre-election matters should be filed within 14 days, the Supreme Court wiped out all pending cases in court.”

Adedayo Akinwale and Alex Enumah in Abuja

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