Electoral Act 2022: Senate verdict and the fate of political appointees

Senate’s refusal last Tuesday to repeal the restriction of political appointees from participating in party conventions or congresses for the election of candidates has been trailed by varied reactions across the country. 
 
While some stakeholders see it as a radical legislative approach to rid the country of an anomaly capable of truncating democracy, others see it as a display of selfish motive by parliamentarians in the guise of improving the country’s electoral system.

However, the near unanimity with which Senators across the two main parties took that decision is seen as a pointer to the seriousness the Upper Chamber attached to the decision to reject President Muhammadu Buhari’s request. Not even Senate President Ahmad Lawan who initially displayed so much commitment to seeing through Buhari’s request could save the day for the political appointees. Lawan was practically deserted by his colleagues as he “struggled” in vain to remedy the situation. 

The contentious section 84(12) states 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.”

It simply means that in any of such conventions, which are popularly called primary elections, political appointees such as ministers, commissioners, special advisers, heads of agencies at federal, states and local council levels, cannot participate either as voters or as persons to be voted for.

But such persons will automatically qualify to participate in the conventions or congresses if they resign their appointments before the date of the convention. 

The purpose of the clause, according to lawmakers, is to stop all forms of impunity associated with the use of undue political influence to gain advantage.

The provision is also aimed at stopping those political appointees from taking advantage of their appointments to draw money directly from government coffers to influence their election at any primary election or use public fund to support others.

The provision is a sharp departure from the existing constitutional provision, which compels appointees seeking elective position to vacate office 30 days to the election. 

From political parties, it was gathered that the clause frees parties from undue pressure and tension in their operations, especially when conventions are close.

But serving governors or even a President seeking re-election would have to work harder as this provision has thrown away the previous arrangement, which allows them to use political appointees as automatic delegates in primaries. 

The past political gimmick of simply appointing thousands of political appointees to increase the number of delegates in your favour as a sitting governor would no longer apply.

However, many political analysts have faulted the rejection of the President’s request by the Senate. They particularly feared that such action could jeopardise the smooth relationship between the President and the legislature. They pointed out that it was the first time the National Assembly would reach an agreement with a sitting president and go against it.

“By their act, they have broken a sacrosanct tradition that is done everywhere democracy is practiced. This would have major impact on future bills and with future presidents,” a source who anonymity said.

Another lawmaker explained further: “The President had wanted to veto the reworked electoral act but was sensitive about the mood of the nation and the impact another delay would have on the 2023 elections calendar. Instead, he raised the issue of the contentious clause with the leadership of the National Assembly who went to meet their caucus to discuss the President’s concerns. They came back to the president that they have agreed to expunge the contentious clause that infringes on the constitutional rights of political appointees to vote or be voted for from the bill after he signed the bill into law.

Having extracted that commitment from the leadership of the National Assembly, the President proceeded to sign the bill into law. And he immediately followed with a request for an amendment based on the understanding reached with the lawmakers. It is therefore a betrayal of the understanding for the lawmakers to now turn round to reject the request from the President to amend the law to bring it in conformity with the constitution.”

Reacting to the request by the president that Section 84 (12) be deleted in the new Electoral Act 2022, the source argued that, the section of the law was discriminatory because it allows elected officials to perpetuate themselves. “That means they would have no challenge from appointed officers.”  

But justifying the new provision, a Senator from one of the States in the North West geo political zone said: “It is unfortunate that the provision, which was purely aimed at deepening the roots of democracy in the country, has been so misinterpreted and mischievously twisted. 

“What we are saying is that you can’t be a political appointee and proceed in the capacity to participate in the primary election of your political party either to vote for someone or to be voted for. Such an appointee would be enjoying too much undue privilege. We have seen how such practices produce negative effects at the conventions in the past.

“If you are desirous of participating in the convention, why not simply resign and join every other person to take part in the conventions? But most of those kicking against the provisions are doing so because of the fear that they would lose in the convention once they resign from their offices,” the lawmaker added.

An interesting dimension is that although the ruling party is more adversely affected by this provision, its lawmakers are more in the forefront of its adoption and applications. 

When the court stopped the National Assembly from further amending the Electoral Act to delete the contentious provision, Senator Adamu Aliero of the All Progressives Congress (APC) from Kebbi State was the one who brought a motion to ask the Senate to comply with the order.

Although he was ruled out of order by the Senate President, his argument influenced other Senators in their ultimate decision to throw out the request of the President when it was put to vote.

It would be recalled that before signing the amended electoral Act, the President had opposed the provision because he felt that it negated the provisions of the constitution.

In his view, “the provision constitutes fundamental defect, as it is in conflict with extant constitutional provisions.”

He was very categorical that 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. 

According to the President, “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.”

Citing the provisions of the constitution, which the contentious clause in the Electoral Act offended, President Buhari made it clear that, “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).”

He argued 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 believes that “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.”

But because he wouldn’t want to throw away the water with the baby, the President signed the law with a strong request to the National Assembly to delete the clause.

But Buhari’s position suffered serious setbacks in the law court as a Federal High Court sitting in Abuja, on Monday, restrained the National Assembly from tampering with the newly amended Electoral Act 2022.

The restraining order was sequel to a motion ex-parte that was brought before the court by the Peoples Democratic Party (PDP).

The court, in the ruling that was delivered by Justice Inyang Ekwo, specifically barred all the defendants in the suit marked FHC/ABJ/CS/247/2022, from removing section 84 (12) of the Electoral Act or preventing it from being implemented for the purpose of the 2023 general elections.

Cited as defendants in the suit are the Attorney General of the Federation and Minister of Justice, Senate President, Speaker of the House of Representatives, Clerk of National Assembly, Senate Leader, House of Representatives Leader and the Independent National Electoral Commission, INEC.

Others are Deputy Senate President, Deputy Speaker, House of Representatives, Deputy Senate Leader and Deputy Leader of the House of Representatives.

The PDP, in the substantive suit it filed through its team of lawyers, led by Chief Ogwu Onoja, SAN, challenged the legality or otherwise of the National Assembly tinkering with the Electoral Act, after it had been signed into law by the President.

The PDP, in an affidavit of urgency attached to the motion ex-parte, said there was an urgent need for the court to bar the defendants from taking any step to accede to President Buhari’s request, pending the determination of the suit.

Justice Ekwo, granted it as prayed and ordered PDP to serve the order as well as all the relevant processes on all the defendants, even as he fixed March 21 to hear the substantive suit.

The PDP as plaintiff, had in the ex-parte application, prayed the court for “an order of interim injunction restraining the defendants from refusing to implement the duly signed Electoral Act or in any manner withholding the Electoral Act from being put to use, including the provisions of section 84 (12) of the said Act, pending the resolution of the suit.”

The opposition party also sought an order restraining the National Assembly from giving effect to President Buhari’s request to remove section 84 (12) from the Electoral Act or take any step that will make the provision inoperative, pending the resolution of the motion on notice for interlocutory injunction.

It argued that President Buhari, having assented to the Bill on February 25, 2022, cannot give any directive to the National Assembly to take immediate steps to remove the section or any section of the Act on any ground whatsoever.

The PDP wants the court to declare that Buhari’s power regarding law-making is limited to assenting to a bill of the National Assembly or withholding assent, and does not extend to giving conditional assent.

The PDP further wants the court to hold that Section 84 (12) is constitutional and liable to be enforced by INEC, which is the 8th defendant in the suit.

It prayed the court for a declaration that Section 84 (12) is not inconsistent with or contradicts Sections 40 and 42 of the Constitution and does not offend Constitutional provisions on disqualification of a person from election to office.

It applied for an order of mandatory injunction compelling INEC to put into immediate effect the Electoral Act, including the said Section 84 (12). 

Even before the Senate could act on the court order, the President’s position on the clause attracted more criticisms. A PDP chieftain and former Delta State gubernatorial aspirant, Chief Sunny Onuesoke, said that if political office holders or other categories of appointees resign before partaking in electoral activities, it would give a level playing ground for all. 
 
The PDP Chieftain observed that resigning their appointments would prevent unnecessary distractions, side influence and help such appointees focus on their ambitions.

“To me, an appointee should not remain in office and be allowed to use his office to influence his political ambitions or those of his benefactors. This will be undue advantage over other contestants. It’s akin to eating your cake while still having it. Besides, how can an appointee effectively carry out his official duties while campaigning for election at the same time? Section 84 (12) of the Amended Electoral Act Bill should be left intact for future government to “amend” if tested and found to be an infringement on the rights of government officials,” he stated.
 
Onuesoke explained that the Bill has been passed by the legislature and accented to by the Executive and as such, had come to stay.

“A legislature that passed a Bill does not go back to amend it after it has been signed into law by the Executive. The Bill is already a Law (An Act). Its place is now in the gazette,” he stressed.