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Be wise, lawyers warn politicians running for offices and still keeping their jobs

By Joseph Onyekwere and Ameh Ochojila
17 May 2022   |   2:05 am
Senior legal practitioners have continued to comment on the appeal court ruling regarding the contentious section 84 (12) of the Electoral Act, warning politicians to resign in accordance with the president’s directive ...

Prof. Ojukwu SAN

Senior legal practitioners have continued to comment on the appeal court ruling regarding the contentious section 84 (12) of the Electoral Act, warning politicians to resign in accordance with the president’s directive to avoid losing their victories at the end, if the apex court holds that they ought not to have participated in the contest.

Former Deputy Director, Nigerian Law School, Prof Ernest Ojukwu (SAN), said though the Appeal Court set aside the judgment of the High Court, Umuahia, they also gave an opinion on the constitutionality of that provision of the Electoral Act.

He said the opinion was based on no issue because they had already struck out the matter and decided that there was no ground to hear it at all.

That opinion, having been made, he pointed out, becomes the law, unless it is set aside.

“The opinion expressed by the court is called obiter in law because there was nothing before them anymore to decide. That opinion contradicts their decision in locus.

“However, even when a court decision is wrong, you still have a duty to obey it until it is set aside. So, their opinion destroyed their judgment that says that the plaintiff lacked locus. The court overreached itself in giving that opinion. The court has no right to say you don’t have locus and went ahead to interpret the law for us.

“If the decision of the court of appeal was based on section 42 (1) (a) they were also wrong. That section talks about those you shouldn’t discriminate against. It went ahead to list them. It said you shouldn’t be discriminated against on grounds of your community, ethnicity, religion, sex or political opinion. There is nothing in that section that says you shouldn’t discriminate against somebody on grounds of political appointment.

“If you look at the Court of Appeal argument on section 42 of the constitution relating to who should not be discriminated against, you will see that they were struggling to include political appointees in the word “community” instead of just interpreting the words of the constitution using the literal interpretation.

“Meanwhile, our courts are crying that they are overworked with cases and yet they easily delve into political issues and fish for all kinds of interpretations to justify very wide interpretation of the constitution and our laws, thereby, opening a flood gate of litigations,” he said.

He held that if the president doesn’t fire the ambitious politicians, his work will be at a standstill. Former National Legal Adviser of the All Progressive Congress (APC), Dr. Muiz Banire (SAN), agreed with the Appeal Court.

According to him political appointees who want to run for elective offices cannot sit pretty tight and still run for offices.

His words: “They cannot do it. And the President has the right to ask them to resign, even beyond the law because they are appointees. If they refuse to resign, he will have to sack them, having given the directive.”

“If the Supreme Court disagrees with the position of the Court of Appeal on it, it then means that all those people have committed political suicide. But then, it is better to err on the side of caution and that is to resign.”

Warri-based lawyer, Chief Albert Akpomudge (SAN), said the law, as of today, persists until the Supreme Court makes a definite decision on it.

“Those already caught up with that section of the law have to obey the presidential directive and resign. If they don’t and at the end of the day, the Supreme Court says Section 84 is valid, it will affect them just as it happened in Zamfara and Rivers states,” he warned.

Lagos-based lawyer, Kenneth Ahia (SAN), said the issue about Section 84(12) is a fight between the legislature and executive.

According to him, the legislature wants to take an advantage as the body that makes the law.

“The usual provision is that they resign 30 days before the election, but the legislature makes the law and until it is set aside, that is the law.

“The position today is the decision of the Court of Appeal until we hear from the Supreme Court. If I were to advise any political party, I would not advise them to take the risk. I will ask anybody who wants to contest to resign now, because if the Supreme Court takes a position validating the law, it means that those who did not resign will be having problems.

“For Emefiele, the CBN Act expects him to give three months notice of resignation. If he doesn’t give notice and resign, then he should be fired. He is not supposed to be a card-carrying member of a political party. If APC decides to field him, there could be a problem because it would be a subject of judicial interpretation,” he suggested.

Chief Adeniyi Akinola (SAN), commended the appellate court for delving into the merit of the appeal and reaching the decision that said Section 84(12) was unconstitutional.

He said: “Their lordships have done the right thing as the middle court, they have to delve into the merit of the case and they have even settled it for the High Court judges because they now know that that section is null and void.”

According to him, only the Supreme Court could set it aside. The senior lawyer said the law is discriminatory, stressing that any law that is discriminatory violates the essential ingredients of a good law.

“A law is no law if it fails the litmus test of quality; the quality of a good law is that it must be certain, it must not be discriminatory, it must be universal because when a law is targeted at a group of people it is termed a bad law and that is exactly what has happened in respect of Section 84 (12),” he insisted.

An Abuja based Lawyer, Eddie Inegedu, who agreed with the SAN that the section is discriminatory, however warned politicians to go, to avoid regrets after the apex court must have decided on it.

“I think it is safe for these appointees to resign and pursue their ambitions. If they win the party primaries and the Supreme Court upholds the decision of the Court of Appeal, it is the end of the road for them. Even if they win the main elections, they will be kicked out,” he warned.

For Godwin Ogboji, a lawyer, the Presidential directive is meant to safeguard any victory the All Progressives Congress (APC) may secure after the 2023 elections because going by the decision of the Court of Appeal setting aside the judgment of the Federal High, Umuahia, any electoral victory by a sitting political appointee without first resigning might be invalidated by the Court upon any challenge of such victory.

According to the lawyer even though the Court of Appeal held that the provision of section 84 (12) of the Electoral Act was unconstitutional, the Plaintiff in Umuahia, not having locus standi to file the case means he can’t get any favourable decision on it.

“As at today, the provision of section 82 (12) of the Electoral Act remains a valid and subsisting law. To my mind, that was what prompted the President to direct the resignation of his appointees with political ambitions,” he declared.