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Supreme Court throws out Buhari’s suit against new Electoral Act

By John Akubo and Ameh Ochojila, Abuja
25 June 2022   |   4:30 am
The Supreme Court has struck out the suit filed by President Muhammadu Buhari and the Attorney-General of the Federation and Minister of Justice, Mr. Abubakar Malami (SAN) to void section 84 (12) of the Electoral Act 2022.

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The Supreme Court has struck out the suit filed by President Muhammadu Buhari and the Attorney-General of the Federation and Minister of Justice, Mr. Abubakar Malami (SAN) to void section 84 (12) of the Electoral Act 2022.

In a unanimous decision, yesterday, the apex court led by Justice Muhammad Dattijo held that it lacked the jurisdiction to entertain the suit, which it said amounted to an abuse of the judicial process.

The seven-man panel held that President Buhari was not a proper person to approach the apex court with such suit, owing to the nature of reliefs that were sought.

Buhari and Malami had in the suit contended that section 84 (12) of the Electoral (Amendment) Act 2022 was inconsistent with the provisions of sections 42, 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the 1999 Constitution of the Federal Republic of Nigeria as well as Article 2 of the African Charter on Human and Peoples Rights.

The plaintiffs, among other things, sought “a declaration that by the joint and or combined reading of Section 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the constitution, the provision of Section 84 (12) of the Electoral Act 2022 which also ignores Section 84(3) of the same Act, is an additional qualifying and/or disqualifying factors for the National Assembly, House of Assembly, Gubernatorial and Presidential elections as enshrined in the said constitution, hence unconstitutional, unlawful, null and void”.

They also sought “a declaration that having regard to the clear provision of section 1(3) of the constitution read together with section 4 of the same constitution, the legislative powers vested in the defendant do not permit or empower it to make any other law prescribing additional qualifying/disqualifying grounds for election to the national assembly, house of assembly, gubernatorial and presidential election outside the express constitutional qualification and disqualification provisions as already provided in each or all of sections 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).” The President and minister contended that without amendment to any of those sections, the action of the defendant in prescribing new qualification and disqualification provision is unconstitutional and therefore null and void.

Buhari and Malami then prayed the apex court for “an order nullifying the provision of Section 84 (12) of the Electoral Act 2022 by application of the blue-pencil rule, for being unconstitutional, illegal, null and void and having been made in excess of the legislative powers of the defendant as enshrined in section 4 of the constitution (as amended).”

Although the National Assembly was originally cited as sole respondent in the matter, Rivers State, through the Speaker of its House of Assembly and its Attorney-General and Commissioner for Justice, subsequently applied and were joined as interested parties in the matter.

While opposing the suit, Rivers State, in its preliminary objection it filed before the apex court, argued that section 84(12) of the Electoral Act 2022 was “neither a detraction from the provisions of section 84(3) of the same Act nor from the provision of sections 42(1), 65, 66, 107, 131, 137, 177, 182 and 192 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and there is no any abuse of the Constitution by the defendant in enacting the provisions of section 84(12) of the Act”.

It argued that President Buhari, having assented to the Electoral Bill, he, “has conclusively discharged his duty under the Constitution”.

The counsel to the state, Mr. Emmanuel Ukala (SAN), argued that the suit ought to have been filed before a High Court since President Buhari did not challenge the encroachment on his executive powers by the legislature.

Likewise, the National Assembly, through its lawyer, Dr. Kayode Ajulo, asked the Supreme Court to strike out the suit, accusing both Buhari and Malami of abusing the judicial process. He argued that the President, having assented to the Electoral Act, could not turn back to challenge its provisions in court.

“The crux of our objection is that the plaintiffs as constituted do not have the legal right to invoke the original jurisdiction of this court as provided for in section 232 (1) of the Constitution.

“It can only be invoked if there is a dispute between the President and the National Assembly, when there is a dispute on the issue of law.

“There are other places where this issue can be ventilated. It is not in this court. It appears as if the President is suing himself, since he also assented to the Electoral Act in question.

“The suit ought to have been filed in the name of those appointees and in that case we would not have been in this court. What they have attempted to do is to use the name of the President to invoke the original jurisdiction of this court, in representative capacity”, Ajulo argued.

On its part, the Nigerian Bar Association (NBA) brought an application to be allowed into the case as amicus curiae (friend of the court).

The legal body, which said it was before the court to represent Nigerian citizens, also prayed the Supreme Court to dismiss the suit in public interest.

“It is our submission that there is no conflict between section 84(12) and any other section of the Electoral Act, the 1999 Constitution, as amended, or the African Charter on Human and Peoples Right.

“Your lordships should take note of the ill the said section is meant to cure. The essence of the section is to provide a level playing field for all Nigerians, such that political appointees should not use their office to advance their personal interests”, counsel for the NBA, Mr. Charles Mekunye (SAN) submitted.

Nevertheless, counsel for President Buhari and Malami, Mr. Lateef Fagbemi (SAN), urged the court to allow the appeal and nullify the controversial section which he said would deny political appointees the right to participate in election.

In its lead judgment that was prepared and delivered by Justice Emmanuel Agim yesterday, the apex court upheld the arguments of the defendants and accordingly struck out the suit.

Section 84 (12) of the Electoral (amendment) Act 2022 has been a subject of intense litigation and political debate in the country since President Buhari signed it into law in February this year.

Shortly after signing it into law, Buhari had urged the parliament to delete the Section 84 (12) but the National Assembly declined the president’s request.

The 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 purpose of the nomination of candidates for any election.”

This suit came weeks after the Federal High Court in Umuahia, Abia State, struck out the Section 84 (12) on the ground that it was in conflict with some sections of the nation’s constitution.

In a reaction to the Supreme Court’s judgment yesterday, the Senate spokesperson, Ajibola Basiru described it as a vindication of the National Assembly.

Basiru blamed Malami for always giving the President legal advice that cannot stand the test of judgement.

“The judgement of the Supreme Court has validated some of our opinions that the President is not receiving very sound legal advice from the office of the Attorney General and Minister for Justice.

“Like he was misled over the issue of grazing routes in the past, the same thing with the new Electoral Act. Having assented to a bill, the same President cannot go ahead to seek to delete an aspect of the bill.

“We hope the President will be alive to getting second opinion on legal matters so that the Federal Government would not be embarrassed on plain legal matters that are very elementary,” he said.

On the position of the National Assembly on the judgement, Basiru said it showed that the verdict did not consider the constitutionality or otherwise of section 84(12) and so the court declined to invalidate the law.

“It means that the law still stands as at today. Section 84(12) still stand as part of the extant laws of the country and any political party that does not comply with the provision does so at its own peril.

“I also know that notwithstanding the case filed by the Attorney General, even the President complied with the law by asking his appointees to resign and they resigned and those of them that resigned were not even reappointed.

“So in terms of the implementation of the law, the President and the political parties implemented it. One would not know what was the interest of Malami litigating the provision that had been complied with by even his President and the political party.”

The senator representing Kogi West, Smart Adeyemi, applauded the Supreme Court for throwing out the suit, saying
the judgement affirmed the doctrine of the Separation of Powers.

“Everyone now knows the limit of his powers. That is what the Supreme Court has just done. To tell the executive that this is the limit of their own powers so they should not delve into the powers of the legislature just like the judiciary must be respected.

“This is a far reaching judgement. It would allow every arm of government to know the limit of its powers so that you don’t infringe on another person’s constitutional responsibility as it is entrenched in the constitution. I think this will guide the executive now and forever in the way and manner people use their position.

“The clause was meant to safeguard and ensure that nobody will have any advantage over others in a democratic setting. That is just what we wanted to achieve by that clause and I think this judgement has affirmed our position and it shows we have done the right thing.

“We thank the judiciary for doing what is right for the country. It is not for the executive to make laws, it is for legislators to make laws. That is why they were elected in the first place. Where we have 360 House of Representatives members and 109 senators, can we all be wrong?” Adeyemi asked.