Electoral Act 2022: Buhari wins as court voids section 84 (12)

• Lawmakers Differ Over Judgment
•Attempt To Delete Section Fraudulent – TMG

Barely three weeks after President Muhammadu Buhari signed the Electoral Act Amendment Bill 2022 into law, a Federal High sitting in Umuahia, the Abia State capital, has nullified Section 84 (12) of the Act and ordered the Attorney General of the Federation to delete it.

Delivering judgment in a suit marked FHC/UM/CS/26/2022, yesterday, the court presided over by Justice Evelyn Anyadike declared that the said section of the amended Electoral Act was inconsistent with Sections 66(1)(f), 107(1)(f), 137(1)(f) and 182(1)(f) of the 1999 Constitution and was consequently unconstitutional, invalid, illegal, null, void and of no effect.

The suit, which was filed by one Nduka Edede of the Action Alliance (AA), sought the nullification of the said section of the Act.

President Muhammadu Buhari had while signing the amended Electoral Act on February 25, this year, said he would approach the National Assembly to amend the provision in 84 (12) on the ground that it violated the constitution.

The President had said: “Section 84 (12) constitutes a disenfranchisement of serving political office holders from voting or being voted for at Conventions or Congresses of any political party, for the purpose of the nomination of candidates for any election in cases where it holds earlier than 30 days to the National Election.

“The section provides as follows: ‘No political appointee at any level shall be voting delegate or be voted for at the Convention or Congress of any political party for the purpose of the nomination of candidates for any election.’

“This provision has introduced qualification and disqualification criteria that ultra vires the Constitution by way of importing blanket restriction and disqualification to serving political office holders of which they are constitutionally accorded protection.

“The practical application of Section 84(12) of the Electoral Bill 2022 will, if assented to, by operation of law, subject serving political office holders to inhibitions and restrictions referred to under Section 40 and 42 of the 1999 Constitution (as amended).”

Continuing, President Buhari noted that the only constitutional expectation placed on serving political office holders that qualify, by extension as public officers within the context of the constitution is resignation, withdrawal or retirement at least 30 days before the date of the election.

He added: “Hence, it will be stretching things beyond the constitutional limit to import extraneous restriction into the constitution on account of practical application of Section 84(12) of the bill where political parties’ conventions and congresses were to hold earlier than 30 days to the election.

“Arising from the foregoing, with particular regards to the benefits of the Bill, industry, time, resources and energy committed in its passage, I hereby assent to the Bill and request the Nationally Assembly to consider immediate amendments that will bring the Bill in tune with constitutionality by way of deleting section 84(12) accordingly.”

On Tuesday, March 1, the Senate disclosed that it had received a letter from the President seeking an amendment of Section 84 (2) subsection 12 in the 2021 Electoral Act. But on Wednesday, March 9, the Senate threw out the Bill seeking to amend the Act. The Bill titled: “A Bill for an Act to amend the Electoral Act 2022 and for related matters, 2022,” was overwhelming rejected by Senators, a development that effectively stopped its second reading and passage.

Apparently, the rejection did not go down well with the Executive, as the Attorney General of the Federation and Minister of Justice, Abubakar Malami, announced a week later that the Federal Government would explore all available options on the law.

Although the Federal Government was not in any way linked with the suit, which Justice Anyadike ruled on yesterday, the judgment would come as a big relief to the administration.

Reacting to the judgment, counsel to the plaintiff, Emeka Ozoani (SAN), told journalists that the National Assembly was not required to further make any amendments on the Act, noting that “the import of this judgment is that Section 84(12) of the Electoral Act is no longer in existence or part of the Electoral Act.”

Counsel to the Attorney General of the Federation, Mr. Chris Nevo, also lauded the court for spelling out the level of the inconsistency in the said Section 84 (12) with the Constitution.

When The Guardian contacted the Senate spokesperson, Senator Basiru Ajiibola, to react to the judgment, he said he would need to study it first.

“I’m not aware of the suit and whether the National Assembly was a party or was served and/or represented. I have also not seen or read the judgment or whether the National Assembly has been served with the judgment or any order of court. I cannot react to newspaper reports of court judgment without seeing the actual court judgment,” he said.

However, the Chairman of the House of Representatives Committee on Treaties, Protocols and Agreements, Hon. Ossai Nicholas Ossai (PDP, Delta) described the judgment as the “beauty of democracy.”

According to him, true democracy allows laws to undergo scrutiny and legal interpretation, “therefore, the verdict of the judge only goes to show that democracy is at work.”

He stated the High Court was a court of first instance in this case, noting that there was room for the defendants to proceed to the Appeal court.

“I will say this is the beauty of democracy and it is democracy at work. Although I do not have details of who filed the suit and defendants in the case, testing of laws through the courts is constitutional and that is the beauty of democracy.

“In this case, the judgment is just from the court of first instance so it is left for the defendants to proceed to the Appeal Court to seek further interpretation. So, we will wait and see what the appellate court will say,” he added.

Another lawmaker in the House of Representatives, Mrark Gbillah, however, faulted the judgment, saying the court overstepped its bound.

The Benue State-born lawmaker said: “These days, the judgments of the judiciary sometimes leave a lot to be desired. I cannot say categorically the premise upon which that judgment was made, but it is within the purview of the National Assembly to make laws.

“It is not in the court’s position to make such ruling. First of all, the fact that the constitutional action of the National Assembly is being subject to judicial directive is against the constitution itself.

“The judiciary have their own role; we have our own role too. We have enacted a law; it is an Act. The process of dealing with it now is by amendment; it is not by judicial pronouncement.

“That is the way an Act is made to be different. That is why the President did the right thing by sending it back to the National Assembly for amendment and since we refused to amend it, it stands as it is. A court judgment cannot invalidate it.”

Speaking in the same vein, the Transition Monitoring Group (TMG), yesterday, declared that moves by the Presidency to delete Section 84(12) of the new Electoral Act recently rejected by the Senate was an attempt to institutionalise fraud in the country.

Speaking with journalists at the Group’s Reflection and Retrategising Meeting ahead of the 2023 elections, Chairman of TMG, Auwal Rafsanjani, said it was only fair that there should be level playing ground for all politicians in the country.

According to Rafsanjani, the President should have known better that deleting Section 84 (12) from the Electoral Act was tantamount to putting a stamp on corruption and abuse of power.

He said: “TMG strongly does not support this. It is an attempt to cripple democratic choice of Nigerians by bringing in people who are already beneficiaries and are serving to influence the electoral process.

“We did not support this kind of unfair contest where people are using their incumbency as political appointees to come and override other members. So, they are using their position to influence the outcome of the election by using, in some instances, money, security, all sorts of privileges that they have, and it is only fair that there should be level playing ground.

“Therefore, we do not understand why the President want to institutionalise such disadvantages in Nigeria. We have not even tested the law and you want it amended so that it will now become business as usual. We say no to that.”