Nigeria: AGF Malami Says FG Will Immediately Gazette Electoral Act Without Nullified Section 84(12)

A Federal High Court in Umuahia, Abia State on Friday nullified the controversial Section 84(12) of the Electoral Act 2022 barring political appointees from contesting elections and ordered the Attorney General of the Federation “to delete it forthwith,” saying that it is unconstitutional, illegal, null and void.

Barely few hours after the court’s decision, the Attorney General of the Federation (AGF) and Minister of Justice, Abubakar Malami issued a statement saying the federal government “will immediately give effect to the judgment by gazetting it.”

President Muhammadu Buhari had recently signed the electoral bill into law with a caveat that Section 84(12) be deleted in order to deepen democracy in the country.

Last week, the Senate surprisingly threw the request of the president out.
However, dissatisfied, the Attorney General of the Federation (AGF) and Minister of Justice, Abubakar Malami, disclosed that the federal government would explore other means including the court to ensure the said portion of the law which he claimed offends other sections of the Constitution was expunged from the amended Act.

Delivering judgment in the matter on Friday, Justice Evelyn Anyadike of the Federal High Court, Umuhia, Abia State, held that the section was unconstitutional, invalid, illegal, null, void and of no effect whatsoever and ought to be struck down as it cannot stand when it is in violation of the clear provisions of the Constitution.
The judge, accordingly, ordered the AGF to forthwith delete Section 84(12) from the Electoral Act.

Malami said his office “will, accordingly, give effect to the court’s judgment in line with the dictates of the law and the spirit of the judgment.”

He stated that the judgment of the Court would be recognised by the government printers in printing the Electoral Act 2022.

In a statement by his media aide, Umar Gwandu, the AGF said, “The Act will be gazetted factoring the effect of the judgment into consideration and deleting the constitutionally offensive provision accordingly.

“The provision of Section 84(12) of the Electoral Act 2022 is not part of our law and will be treated accordingly.
“This is in line with the dictates of chapter 7, Part 4, Section 287 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) on enforcement of decisions that make it a point of duty and obligation on all authorities and persons to have the judgment of the Federal High Court, among others, to be enforced.”

In striking down the suit marked FHC/UM/CS/26/2022, Justice Anyadike, held that Sections 66(1)(f), 107(1)(f), 137(1)(f) and 182(1)(f) of the 1999 Constitution already stipulated that appointees of government seeking to contest elections were only to resign at least 30 days to the date of the election and that any other law that mandated such appointees to resign or leave office at any time before that was unconstitutional, invalid, illegal null and void to the extent of its inconsistency to the clear provisions of the Constitution.

Recall that last week, a politician and legal practitioner, Nduka Edede, who is a member of Action Alliance (AA) filed a suit at the Federal High Court Umuahia seeking to nullify the Section 84(12) on the grounds that it was inconsistent with Sections 66,107,137 and 182 of the 1999 Constitution.

Speaking with journalists after the court verdict, counsel to the plaintiff, Emeka Ozoani, SAN, said it had restored the rights of Nigerian citizens which vexatious subsection 12 of Section 84 of the Electoral Act sought to abridge.

According to him, the court has now, with this judgment, created “a congenial atmosphere for politicking and political space” ahead of the 2023 general election.

He said there was no need again for the National Assembly to bother with amending Section 84(12) of the Electoral Act as requested by President Buhari as the Court has specifically asked the AGF to delete it since it was an illegal law ab initio.

Counsel to the AGF, Chris Nevo said that the court judgment was in tandem with the position of the AGF, who has always held that it was wrong to use the Electoral Act to abridge the rights of political appointees to participate in the electoral process.

“Originally, we believed that it was a big error on the part of the National Assembly to have inserted the controversial Section 84(12), adding that Nigerians should now heave a sigh of relief as the nation could now face operational issues begging for attention.”

Falana Punches Holes in Ruling
Lagos lawyer and human rights activists, Femi Falana has pointed holes in the judgement of Justice Anyadike, saying that political appointees are not included in the list of persons employed in the public service.
Falana argues: With respect, the learned trial judge fell into a great error. Sections 66 (1) (f), 107(1) (f), 137 (1) (f) and 182 (1) (f) of the Constitution relied upon by his lordship require persons employed in the public service of either the federal government or state governments.

“Specifically, each of the aforesaid sections provides that “No person shall be qualified for election into the Senate or House of Reps if: (f) 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 30 days before the date of election.

“By virtue of section 318 of the Constitution, political appointees are not included in the list of persons employed in the public service. To that extent, section 84 (12) of the Electoral Act was annulled on a very faulty ground.

“No doubt, the Judge would have dismissed the case if his attention had been drawn to the cases of Dada V. Adeyeye (2005) 6 NWLR (Pt. 920) 1 At 19 Asogwa V. Chukwu (2003) 4 NWLR (Pt. 811) 540 Ojonye V. Onu & ORS (2018) LPELR-44223) where the appellate Courts have held that political appointees or political office holders are not public servants as provided for under the Constitution.”

Emmanuel Ugwu-Nwogo in Umuahia and Alex Enumah in Abuja

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