In the first parts of this piece, I dwelt on the philosophy behind the introduction of section 84 (12) in the new Electoral Act 2022, which said section stipulates that 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. I posited that the National Assembly was right in sanitizing the political space and that section 84 (12) does not violate any provision in the Constitution of the Federal Republic of Nigeria, 1999 to render it unconstitutional. In the original version of the Electoral Act, section 84 (12) comes with a sub-heading titled: “Political Appointee Not Eligible as a Voting Delegate or Aspirant.” Using this as a guide, it becomes crystal clear that the intent of the lawmakers with the introduction of section 84 (12) was to make it impossible for a political appointee to aspire for elective office whilst still holding on to his political appointment. I honestly cannot see how this piece of legislation amounts to an amendment of the Constitution through the backdoor as some have suggested.
 
The definition Section 318 of the Constitution which clarifies those to be regarded as part of the public service of the Federation also made similar provisions for public service of the State. Judicial authorities abound that political appointees hold their offices at the pleasure of the appointer and they are not civil or public servants as provided for in the Constitution. Thus, there is no apparent or implied conflict between section 84 (12) of the Electoral Act and any of the provisions of the Constitution highlighted above, the rationale being to ensure that those who hold public office are not exposed to any situation that may lead to conflict of interest. In the same vein, section 84 (12) does not infringe upon the right to freely assemble and associate with other persons as provided for in section 40 of the Constitution or the right to form a political party as provided for under section 221 thereof. The Constitution for instance provides the right to freedom of movement for every citizen, but in order to travel out of Nigeria, you need an international passport, without which you would not be allowed to board the plane. It is in that passport that the traveling visa to your country of destination will be imposed. The Courts have also held that the requirement for a passport as a condition to travel does not infringe upon the constitutional right of movement.
 
In the case of Awolowo v. Ministry of Internal Affairs, a similar concept was elucidated upon by the Supreme Court, when the appellant in that case, the late Chief Obafemi Awolowo, SAN, was standing trial for treasonable felony. He engaged the service of a British lawyer, Mr. E.F.N. Gratiaen to defend him. On arrival in Lagos, Mr Gratiaen was denied entry into Nigeria by the federal ministry of internal affairs. The court had to determine the import of section 21 (5) (c) of the then 1960 Constitution of the Federal Republic of Nigeria (now section 36 (6) (c ) of the 1999 Constitution, which provided that “an accused person is entitled to defend himself in person or by legal practitioner of his own choice”.

Chief Awolowo contended in that case that he was entitled to be represented by any lawyer of his choice whether indigenous or British. Thus, the order prohibiting his lawyer, Mr Gratiaen, was ultra vires and against his right to fair hearing. He therefore prayed the court to grant an order of injunction, restraining the defendant from preventing the said Mr. Gratiaen (QC) or any other British counsel who might be counsel of his choice, from entering into Nigeria for the purpose of defending him in the pending charge. On the other hand, the defendants in that case argued that the provisions of section 13 of the Immigration Act which provides that “Notwithstanding anything in this ordinance contained, the Governor-General may, in his absolute discretion, prohibit the entry into Nigeria of any person, not being a native of Nigeria”, gives the ministry the power to refuse a non-Nigerian entry into the country. More so, in exercise of the right conferred by section 21 (5) (c) of the 1960 Constitution, the legal representative must be a qualified person entitled to a right of audience in Nigerian courts. Secondly he must be available to take up the case, and therefore must be able to enter Nigeria as of right and must be a Nigerian.
 
The High Court of the federal territory of Lagos, Per Justice Udo Udoma held that based on the above provisions, the legal representative chosen by an accused person if resident outside Nigeria must be a person who could enter Nigeria as of right and must not be anyone under any disability. In the words of the judge: “I must state at once that I do not accept as sound proposition the submission that the provision contained in Section 21 (5) (c) of the Constitution, liberally interpreted, can be construed to entitle anyone to bring a Counsel from the United Kingdom for the purpose of defending him in a criminal charge. To accept that interpretation, would be to strain language. The Constitution is a Nigerian Constitution, meant for Nigerians in Nigeria. It only runs in Nigeria. The natural consequence of this is that the legal representative contemplated in Section 21 (5) (c) ought to be someone in Nigeria, and not outside it.” This decision was affirmed by the Supreme Court in the appeal filed against it by Chief Awolowo. In similar vein, Section 84 (12) has not stopped any citizen from contesting election but it has imposed a condition upon political appointees to first step down from their political position in order to seek elective office. There is no contradiction at all in this laudable provision with the Constitution.

To be continued tomorrow

Adegboruwa is a Senior Advocate of Nigeria (SAN).