Electoral Act: Respite for Malami, Amaechi, others as court nullifies contentious clause

Respite came the way of Rotimi Amaechi, Abubakar Malami, Chris Ngige and other appointees who are nursing ambition in 2023 as a Federal High Court on Friday nullified section 84 (12) of the amended Electoral Act, which requires them to resign before participating in primaries, convention and other electoral activities. Buhari had sought the amendment […]

Respite came the way of Rotimi Amaechi, Abubakar Malami, Chris Ngige and other appointees who are nursing ambition in 2023 as a Federal High Court on Friday nullified section 84 (12) of the amended Electoral Act, which requires them to resign before participating in primaries, convention and other electoral activities.

Buhari had sought the amendment of the act to delete section 84(12), which he said contravened the rights of political officeholders to vote or be voted for in political party conventions and congresses. But the parliament rejected the president’s request.

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In line with the section, many state governors have asked their appointees seeking to contest for election to resign.   

Section 84(12) states, “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 black candidates for any election.”

While Amaechi and Ngige are said to be eyeing the presidency, Malami, who hails from Kebbi State, wants to contest for the governorship seat of his home state. Head of agencies who are set to contest for elections are also going to be affected by this development.

Court nullifies clause 

The Federal High Court sitting in Umuahia, on Friday nullified Section 84(12), saying it was a violation of the provisions of the constitution.

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, saying it ought to have been struck out.

Mr Nduka Edede, a lawyer and chieftain of the Action Alliance (AA) party had approached the court in the suit that had the Attorney General of the Federation as the defendant

The plaintiff had asked the court to determine whether Section 84(12), when read together with Sections 66(1)(f) 107(1)(f)(137(1)(f) and 182(1)(f) of the 1999 Constitution was not inconsistent.

The court agreed with the submissions and ordered that Section 84(12) of the Electoral Act was inconsistent with the rights of Nigerian citizens.

Anyadike held that the said sections already stipulated that appointees of government seeking to contest elections were only to resign, at least 30 days to the date of the election.

She held that any other law that mandated such appointees to resign or leave the 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”.

The judge thereafter ordered the Attorney General of the Federation to forthwith delete the said subsection 12 of Section 84 from the body of the Electoral Act, 2022.

The counsel to the plaintiff, Emeka Ozoani, a Senior Advocate of Nigeria (SAN), said that by this judgement, the National Assembly was not required to further make any amendment to the section.

The defense counsel, Mr Chris Nevo, hailed the judgement, saying the court had put to rest, the section that had been in conflict with provisions of the constitution.

INEC reacts 

Reacting to the development, Mr Rotimi Lawrence Oyekanmi, the Chief Press Secretary to the chairman of the Independent National Electoral Commission (INEC), Professor Mahmood Yakubu, told Daily Trust Saturday that it is within the ambit of the judiciary to adjudicate on matters brought before competent courts of law.

“When such cases are tried and judgements are delivered, compliance becomes compulsory for all parties until a higher court decides otherwise.

“The INEC did not institute the case you referred to, nor are we a party to it, therefore, we do not have any opinion on the ruling,” Oyekanmi said.

We’re not aware of suit –  N/Assembly

The Senate spokesman, Senator Ajibola Basiru, said he was not aware of the suit and whether the National Assembly was a party or was served and represented.

Also, the spokesman of the House of Representatives, Benjamin Kalu, said they were not aware of the judgement.  

Court has powers to expunge clause – Lawyers

Paul Ananaba (SAN) said that according to section 6 of the Nigerian constitution, the court has the powers to nullify any section of an act that it deems unconstitutional 

On the effects of the order on the upcoming 2023 general elections, he said it was for the INEC to study and give its guidelines, and that the court ruled based on the circumstances and not really about the timing of the election.

Also speaking, Abdulrasheed Abdulkareem (SAN) said the Federal High Court had powers to set aside any act or law.

He added that the latest decision would not affect the conduct of the 2023 elections as “that provision is only saying if you want to contest, resign. How does that one aspect affect the Electoral Act?”

Similarly, a former attorney-general of Ekiti State, Dayo Akinlaja (SAN) said the court had the powers to make pronouncements invalidating any provision that is found to be unconstitutional, adding that “it has always been the position of the law.” 

“The practice is that once a court has struck down a provision of the law, that provision becomes inoperative.

“Of course, it is a decision of the High Court, anybody who is aggrieved can choose to go on appeal,” he said.

Print new electoral law – AGF 

The Attorney-General of the Federation and Minister of Justice, Abubakar Malami (SAN), said his office would give effect to the decision of the court and would be recognised by the government printers.

In a statement signed by his media aide, Dr Umar Gwandu, the AGF noted, “The Act will be gazetted factoring the effect of the judgement 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 so 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 judgement of the Federal High Court, among others, to be enforced.” 

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