Section 84 (12): To be or not to be – Part 2
1999 Constitution.
Clearly therefore, no major decision can be taken nor can any action or law be enforced if it is contrary to the Constitution. Section 1 (3) cemented the power and force of the Constitution by stating without equivocation that “if any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void”. No one can quarrel with this at all, unless we do not want to run a Federation. The issue however is whether section 84 (12) of the Electoral Act is affected in any way by section 1 (1), (2) and (3) of the Constitution.
The proponents of the unconstitutionality of section 84 (12) state that the Constitution has already covered the field for those who hold public office and seek elective office. They rely on the following provisions of the Constitution.
For the President, Section 137 (1) (g) of the 1999 Constitution provides that:
“A person shall not be qualified for election to the office of the President if being a person employed in the civil or public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days before the date of the election.”
For the National Assembly, Section 66 (1) (f) of the Constitution states that:
“No person shall be qualified for election to the Senate or the House of Representatives if he is a person employed in the public service of the Federation or of any State and has not resigned, withdrawn or retired from such employment thirty days before the date of the election.”
For the governor, Section 182 (1) (g) of the Constitution provides that:
“No person shall be qualified for election to the office of Governor of a State if being a person employed in the public service of the Federation or of a State, he has not resigned, withdrawn or retired from the employment at least thirty days to the date of the election.”
For those aspiring to membership of the House of Assembly, Section 107 (1) (f) states clearly that:
“No person shall be qualified for election to a House of Assembly if he is a person employed in the public service of the Federation or of any State and he has not resigned, withdrawn or retired from such employment thirty days before the date of the election.”
A community interpretation of the above-quoted provisions of the Constitution shows clearly that the target of its framers is those who are employed in the public or civil service of the Federation or of a State. No other interpretation can be given to this that will not lead to manifest confusion. In other words, if you are a public or civil servant, you cannot remain in office and at the same time seek elective position. This is rational and logical otherwise it will lead to conflict of interest, unjustified deployment of state resources and even abuse of office, in some cases. There should be no gambling by those who seek to satisfy their ambition to serve their people through elective office.
Once you are no longer satisfied with your employment in the public or civil service and you seek to become a politician, then you should quit and face the game of politics squarely. That is the purport of the sections of the Constitution stated above. The next issue is to determine or define those who are engaged or employed in the civil or public service of the Federation or of a State. The interpretation section of the Constitution is section 318 (1) of the Constitution and it defines civil or public service as follows:
“Civil service of the Federation” means the service of the Federation in a civil capacity as staff of the office of the President, Vice-President, a ministry or department of the Government of the Federation assigned with the responsibility for any business of the Government of the Federation.”
“Civil service of the State” means the service of the Government of a State in a civil capacity as staff of the office of the Governor, Deputy-Governor or a ministry or department of the Government of the State assigned with the responsibility for any business of the Government of the State.”
“Public service of the Federation” means the service of the Federation in any capacity in respect of the Government of the Federation, and includes service as –
(a). Clerk or other staff of the National Assembly or of each House of the National Assembly;
(b). Member of staff of the Supreme Court, the Court of Appeal, the Federal High Court, the High Court of the Federal Capital Territory, Abuja, the Sharia Court of Appeal of the Federal Capital Territory, Abuja, the Customary Court of Appeal of the Federal Capital Territory, Abuja or other courts established for the Federation by this Constitution and by an Act of the National Assembly;
(c). Member of staff of any commission or authority established for the Federation by this Constitution or by an Act of the National Assembly;
(d). Staff of any area Council;
(e). Staff of any statutory corporation established by an Act of the National Assembly;
(f). Staff of any educational institution established or financed principally by the Government of the Federation;
(g). Staff of any company or enterprise in which the Government of the Federation or its agency owns controlling shares or interest; and
(h). Members or officers of the armed forces of the Federation or the Nigeria Police Force or other government security agencies established by law.”
Adegboruwa is a Senior Adsvocate of Nigeria (SAN).
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