Electoral Act: Lawyers knock court decision on section 84 – 12

• Judgment leaves much to be desired, says Okeke
• National Assembly, a necessary party, has right to set same aside on appeal – Ajulo
• May judiciary not destroy Nigeria in our lifetime, Adegboruwa says
• Deleting section of existing legislation duty of NASS, not AGF – Jaja

Amazed by the speed of the hearing, the bizarre orders issued and the swiftness of the Attorney General of the Federation (AGF), Abubakar Malami (SAN), to announce his readiness to implement the order, some lawyers have condemned the judgment by Justice Evelyn Anyadike of the Federal High Court, Umuahia, Abia State, arguing that the orders beat legal imagination.

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Lagos based lawyer, Bar Chris Okeke asserted that the judgment leaves so much to be desired.

According to him, so many things about it call for worry.

“Firstly, it did not tell us who the claimant is, what capacity he is suing and his relationship with the suit and the subject of the suit. This is very important to deal with the doctrine of locus standi.

“Secondly, there is something not adding up about the parties. The clear and unmistakable impression the judgment creates is that the Attorney General of the Federation (AGF) is desperate to exercise powers he obviously knows he does not have; supplanting and usurping law-making powers,” he pointed out.

Okeke stated that the AGF made himself a defendant, while also being the plaintiff by proxy. In any case, he argued, the judgment appeared intended to be obeyed by other organs of government, yet they were not made parties and thus were not there at the judgment.

He, therefore, insisted that the principle of fair hearing has been violated.

His words: “The language of the judgment left a sour taste in the mouth. I leave that to students of judgments and judicial excellence.

“This is another example of a judgment calling for an up turn on Appeal. This is the time for stakeholders to stand up to their billing.”

Constitutional lawyer, Dr. Kayode Ajulo described the judgment as a booby trap for the ruling All Progressives Congress (APC).

According to him, the decision is delivered per incuriam (through lack of care).

He argued that political appointees mentioned in the contentious section are not public servants, adding that the National Assembly is a necessary party and has a right to set the decision aside on Appeal.

While agreeing that superior courts of record by virtue of Section 6 of the 1999 Constitution have the power to declare an Act of the National Assembly unconstitutional, null and void to the extent of its inconsistency, he stressed that the courts cannot order unauthorised persons to legislate on laws.

His words: “It, therefore, implies that the decision of the court, with respect, is per incuriam and the ratio of court cannot find coverage under the Sections of the Constitution cited by the learned trial judge to arrive at the decision.

“Based on the doctrine of judicial precedents, it is quite apposite that the Appellate Court will set aside the decision of the trial court.”

On forum shopping and failure to join the National Assembly as well as the Independent National Electoral Commission (INEC) as necessary parties, Ajulo declared that there are plethora of judicial authorities providing that a judge can suo motu make an order for the joinder of necessary parties to a suit.

“Without prejudice to the decision of the learned trial judge, we must reiterate that confidence in the judiciary must be upheld by all means and a reasonable man at all time must be able to retain his confidence in same.

“It is instructive to note that the Peoples Democratic Party (PDP), including other prominent political parties, have concluded their Convention. If the APC should rely on the ephemeral judgment of the Court and proceed to permit political appointees to vote and contest at its primaries and conventions, it is a disaster going somewhere to happen,” he warned.

Outraged by the decision, a human rights lawyer, Ebun-Olu Adegboruwa (SAN) quipped, “may the judiciary not destroy Nigeria in our lifetime.”

He wondered how a court could “nullify” an Act of the National Assembly without joining the institution that made the Act so that they could be heard concerning what they did.

“When a defendant (FG) rejoices over a judgment delivered against it as a party, then you know there is a problem in Nigeria.

“Let the National Assembly, the political parties and Non-Govermental Organisations (NGOs) appeal against the judgment as interested parties,” he advised.

The Secretary of the Association of Legislative Drafting and Advocacy Practitioners (ALDRAP), Dr. Tonye Clinton Jaja argued that the “blue pencil rule” is often applied by judges and the courts to delete any provisions of any legislation that are in conflict with the 1999 Constitution and not directing other persons to do so.

“However, the latter part of the judgment wherein the judge directed the AGF raises the question: ‘does the 1999 Nigerian Constitution empower the AGF to undertake deletion of existing legislation? Isn’t that the exclusive responsibility of the National Assembly?’

“I beg to disagree with some lawyers that have suggested that the pronouncement of the Federal High Court is sufficient and doesn’t require any further input by the National Assembly.

“First of all, it is trite law that judges are not permitted to engage in Legislative activity whether to enact or repeal laws no matter how ambiguous the provisions of such a law may appear. At best they can pronounce that a particular provision is inconsistent with the 1999 Constitution.

“After the pronouncement by the court/judge, it is the duty of the legislature to then, repeal those provisions within such a Legislation. This is because nothing is implied, it has to be explicit,” he stated.

Citing the judgment in the case of Agbakoba vs. Attorney-General of the Federation (2010), Jaja argued that the process of enactment or repeal of any provisions of any legislation is not complete if only the President or the National Assembly exclusively acts upon it without passing it on to the other organ of government.

In that case, he explained, it was held that the assent or signature of the President of Nigeria is a required aspect for the enactment of legislation (the amendment/alteration of the Constitution.

“Logically, it follows that only the National Assembly can present a new Electoral Amendment Bill without section 84(12) to the President for assent. It is not the duty of the Attorney-General of the Federation.

Danba Pius said the provision of section 84(12) of the Electoral Act 2022 that prohibits political appointees from participating as delegates or aspirants has no correlation with the Constitutional provision requiring public servants to resign their appointment at least 30 days to the election. The two different provisions, he said, are miles apart and do not conflict in any way at all. 

“It is unfortunate that the Federal High Court misconstrued the different provisions and arrived at the erroneous conclusion that there is a conflict in these provisions. Be that as it may, its decision has to be challenged on appeal by interested parties, otherwise, the well-intended section 84 (12) of the Electoral Act is gone like the wind. It will be most unfortunate for our democracy if this decision is not challenged by way of appeal,” he declared.

Mathew Echo, also a lawyer, said the court erred in law. “This is because the combined provisions of the Constitution deals with a public servant, while S.84 (12) of the Electoral Act talks about political appointees. Clearly, a political appointee or a political office holder does not fall under the category of officeholders defined as public office holders under S. 318 (1) of the 1999 constitution,” he argued.

Alechenu Ogwuche, however, argued that the constitutional provisions as they relate to eligibility to contest elections, and the timeline for resignation from any public office to contest such a position are 30 days to the elections.

“The recent amendment to the Electoral Act with regards to section 84(12) failed to take cognisance of the constitutional provisions as presently operative. In the absence of a constitutional amendment, the provisions of section 84(12) Electoral Act is doomed to be struck down,” Ogwuche stated.