Electoral Act 2022: When The Constitution Thumps Politics

By Onikepo Braithwaite

I received with mixed feelings, the decision of Anyadike J. of the Federal High Court sitting at Umuahia, nullifying Section 84(12) (former 84(10)) of the Electoral Act 2022 (EA), by reason of its unconstitutionality. You will recall that in my editorial of March 1, 2022 “Electoral Act 2022: Unresolved Issues”, I had expressed the same sentiments as Anyadike J. using the same Sections 66(1)(f), 107(1)(f), 137(1)(g) & 182(1)(g) of the 1999 Constitution of the Federal Republic of Nigeria (as amended in 2018)(the Constitution) as support for my assertion. However, I say mixed feelings because, while my argument was upheld in the judgement, it is beginning to look like the Umuahia case was somehow contrived.

“Cunny man die, cunny man bury am!” Did it come as a shock that for the first time in its history, the 9th Senate hurriedly dismissed President Buhari’s letter asking them to amend the EA by removing the offending Section 84(12)? In the words of Mrs Funke Adekoya, SAN, “I am yet to see a chicken voting for Christmas!”. The National Assembly (NASS) willingly deleting Section 84(12), would have been tantamount to the Legislators whittling down the powers which they have sought to arrogate unto themselves in politics. I had said in my aforementioned editorial, that Section 84(12) seemed like a battle for supremacy between the Legislature and the Executive. After all, the three arms of government are supposed to be co-equal; but, over the years, the Executive has put itself on a pedestal, over the Legislature and the Judiciary. So what, if the Legislature is now trying to catch up with the Executive, by acquiring more power for itself, albeit by inserting some unconstitutional provisions into legislation?!

According to some Legislators, Section 84(12) refers to Congress and Convention, not general elections. That is not entirely true. Congress/Convention, in one way or the other, are stepping stones to elections; and, in fact, the offending provision states: “…..for the purpose of the nomination of candidates for any election”. This provision is definitely related not only to intra-party, but to general elections.

‘ace’, The Electoral Knowledge Network, wrote that the National Congress of a political party is usually the highest decision-making body of the party. By Legislators keeping themselves in as statutory delegates, and leaving ‘political appointees’ (whoever they may be) out (unless they quit their jobs well in advance), the Legislators would have more power in the party, and obviously more leverage to decide on candidates for elections (certainly, the political appointees would be reluctant to quit their jobs so long in advance, in order to maintain their strength, standing and relevance, and eat their cake and have it). Even in the case of the offending Section 52(2) of the Electoral Act (Amendment) Bill 2021 which was subsequently jettisoned, NASS tried to arrogate more power unto itself by usurping INEC’s constitutional role and foisting itself and NCC into the electoral process to give permission to INEC for electronic voting, contrary to Sections 78 & 158(1) of the Constitution.

Who are ‘Political Appointees’?

Aside from unconstitutionality, I think NASS may have shot itself in the foot because Section 84(12) of the EA is vague, as it doesn’t specify who a political appointee is for the purpose of the provision. In some countries (like USA), it is possible to void a law on account of it being vague.

Sections 147, 150, 151, 192, 195 & 196 of the Constitution provide for the positions of Minister, Attorney-General of the Federation, Special Adviser, Commissioner, State Attorney-General and State Special Adviser respectively. Are they the ones that Section 84(12) of EA refers to as political appointees? Maybe.

With all due respect to those who cite cases like Dada v Adeyeye 2005 6 N.W.L.R. Part 920 Page 1 at 19 as their authority for saying that political appointees are not public servants, I am not in agreement, at least not for all political appointees.

Section 318 of the Constitution defines the public service of the Federation or a State as “the service of the Federation (or the State) in any capacity in respect of the Government of the Federation (or the State) and includes service as …..”. Firstly, does this not mean that anybody who serves the Federation or a State in any capacity whatsoever, is a public servant? Then, the provision goes on to enumerate some of those who are included on the list of public servants; but, this does not mean that the list is exhaustive, because the word ‘includes’ is used. According to the online Merriam-Webster Dictionary, the word ‘include’ means “to take in or comprise as a part of a whole or group”. Those listed in the provision, simply comprise as a part of the groups of public servants, and not all public servants. By the foregoing definition of Section 318, are these aforementioned officers (Minister etc) who are political appointees, not also in the service of the Federation and State (in various capacities), and therefore public servants as well, and consequently, the said Sections 66, 107, 137 & 182 of the Constitution giving 30 days before the election to resign, also applicable to them? While civil servant and public servant can be distinguished, and usually, a political appointee cannot be said to be a civil servant, sometimes there is an intersection between public servant and political appointee.

Caretaker Committee

Again, take for example the issue of the Caretaker Committee set up by the All Progressives Congress (APC); the decision to use Governors as ‘Caretaker Chairman’ since the unceremonious ousting of its erstwhile Chairman, Comrade Adams Oshiomhole in 2020, has made for yet another debate about whether it is constitutional for a sitting Governor to be in that role. This question has arisen because of the provision of Section 183 of the Constitution, which mandatorily prohibits a Governor from holding any other executive office or paid employment in any capacity whatsoever, during the period of his/her tenure in office.

Maybe it is time for those who feel uncomfortable with this arrangement to seek the face of the court for an interpretation of “executive office”, as the provision of paid employment is clear enough and may need no further interpretation since it simply means working in a job where the individual receives a salary. In Coca-Cola (Nig.) Ltd v Akinsanya 2013 18 N.W.L.R. Part 1386 Page 255 at 372 per Ikyegh JCA, the Court of Appeal held inter alia that: “The word ‘employment’ is not defined in the Third Alteration Act. It’s ordinary or literal meaning, however, is “work, especially when it is done to earn money (see Oxford Learner’s Dictionary 7th Edition Page 470)”. Drawing from this, one can undoubtedly conclude that paid employment is definitely work for money. Also see the case of Okoh v University of Lagos 2011 14 N.W.L.R. Part 1268 Page 563 at 584 per Pemu JCA: “The Oxford Advanced Learner’s Dictionary 6th Edition at its Page 379 defines “employee” as a person who is paid to work”. The Governors can easily argue that they are not employees in paid employment, because do not receive any remuneration in this additional role they play, and therefore, the issue of being in any other “paid employment” does not arise.

However, the case of executive office is not as clear cut. “Executive Officer” has various meanings, but in the context of this conversation, “he/she is principally responsible for leading all or part of an organisation, although the exact nature of the role varies depending on the organisation”. This Wikipedia definition seems to be the best suited, to the issue at hand. ‘ace’, describes the organisational structure of a political party, and refers to the national executive body of a party as “ ‘the party government’ making and implementing decisions on a day-to-day basis”. Going by this definition, it seems that apart from the constitution of a political party, it’s executive as the name implies, leads and runs the party.

What then is a Caretaker Committee of a political party? If it is a Committee that temporarily performs all the duties of the political party executive body until a proper executive is put in place, then is it not an executive office, albeit temporary? But, if it is a Committee whose role is limited in function, and it is not responsible for leading the party, then maybe it cannot be said to be an executive office. My dear colleagues, what do you think?

Conclusion

Nigerians are now beginning to wonder how well versed in the law and law making our law makers are, with some of the unconstitutional laws they seem to enact. One would imagine that even if many of our law makers may be clueless, they would seek sound legal advice before trying to craft laws, so that they can get it right and only enact lawful laws. Or is that our politicians just do not give a hoot about constitutionality and legality, and are mostly interested only in what will be of benefit to them?

It seems that some of the innovations that politicians are seeking to introduce, good or bad, self-serving or altruistic, may need to be accommodated in the Constitution first, via the constitutional amendment process laid out in Section 9 of the Constitution. It is trite law that, any enactment that is inconsistent with the Constitution which is supreme and binding on all persons and authorities in Nigeria, including NASS, is inconsistent, null and void to the extent of its inconsistency (Section 1(1) & (3) of the Constitution). In a country where it is almost the norm to obtain conflicting orders and judgements; get different interpretations of the same law depending on the court you go to (forum shopping)(last year, the CJN, Hon. Justice Ibrahim Tanko Muhammad had to take some steps to try to curb the negative trend of forum shopping); disregard the rule of law etc, it may be better to have the provisions set in the Constitution. For now, it may be difficult to develop the law using impeachable case law; the justice sector requires reform, for reliable case law to evolve.