Eniola Akinkuotu, Leke Baiyewu and Stephen Angbulu
24 March 2022
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• Court ruled that the provision be deleted, not part of our law – Malami
The Attorney-General of the Federation and Minister of Justice, Abubakar Malami, on Wednesday in Abuja said his office would soon comply with the court order that he should expunge Section 84 (12) from the Electoral Act, 2022.
This is just as the Senate and the House of Representatives separately condemned the court order and vowed to take immediate action on it.
Recall that a Federal High Court in Umuahia had last Friday declared illegal Section 84(12) of the Act, which stipulates that all political appointees must resign before taking part in primaries.
Addressing journalists after the virtual Federal Executive Council meeting, Malami said he would give effect to the judgment soon, adding that machinery had been set in motion for that purpose.
Asked about the progress on the court’s ruling, Malami said the process was still on.
He stated, “My clear response is the fact that truly there exists a court judgment. By the judgment, the court directed the office of the attorney-general to take necessary steps to delete the provision, which in essence implies that the provision should not form part of our laws.
“Whether it has been deleted or has not been deleted is indeed a function of agencies of government and associated relevant parastatals, but the true position of it in that respect is the fact that government printers, and indeed the Law Reform Commission, among others, that are responsible for the codification and gazetting of our laws, are working naturally with the office of the attorney-general to ensure that what goes into our laws are indeed in line with the provisions of the law.
“So what I am saying in essence is that it is indeed a work in progress against the background of the fact that the Law Reform Commission is involved statutorily, which is a parastatal under the office of the attorney-general, is a party to the process of codification. The government printers, which are saddled with the responsibility of gazetting our laws on the request of the office of the attorney-general, are equally involved.”
He noted that the possibility of an appeal was also there, adding that “deletion of Section 84(12) is a work in progress and is being considered as such.”
But the National Assembly has resolved to appeal the judgment.
The Senate and the House of Representatives separately reached the resolution at their plenary on Wednesday.
The House resolved to report Justice Anyadike to the National Judicial Council for empowering Malami to delete the section from the Act.
Mr Nduka Edede, a lawyer and chieftain of the Action Alliance, had approached the court in the suit that had the AGF as defendant.
The plaintiff had asked the court to determine whether Section 84(12) of the Electoral Act, when read together with sections 66(1)(f) 107(1)(f)(137(1)(f) and 182(1)(f) of the 1999 Constitution, was not inconsistent.
However, the AGF, who was the defendant in the case, supported the plaintiff and the judgment was delivered barely a week after the suit was instituted. The National Assembly and the Independent National Electoral Commission were also not joined in the suit.
Judgment, an insult to National Assembly – Lawmaker
A member of the House, Sada Soli, raised a point of order to say his privilege as a lawmaker had been breached by the court.
Soli said, “I am coming on privilege with respect to the institution of the House of Representatives, reading from various reports of the recent judgment or pronouncement on the law made by the National Assembly. Mr Speaker, this judgment is not only an insult but it is an attempt to oust the jurisdiction of the parliament in making laws by directing an appointee of the executive to delete a law made by the National Assembly.”
The lawmaker made reference to the judgment in Olisa Agbakoba (SAN) vs. National Assembly as contained on page 2,100, Paragraph 15, Legislative Laws Report of Nigeria, which partly read, ‘Court cannot read into or import into the constitution what the legislators never intend’.
He explained that with respect to Section 84(12) of the Electoral Act, “the intention of the legislature was to address the issue of political appointees, which was never addressed anywhere in our constitution.”
Soli recalled that the President, Major General Muhammadu Buhari (retd.), was advised to communicate to the House with respect to Section 84(12) to request the parliament to delete it.
“And I am sure that advice was given by the AGF, because he is the chief law officer to the President,” the lawmaker said, adding, “But suddenly, we are waking up (to see) a judge somewhere giving that right to an executive appointee and encroaching into the principles of separation of powers.”
The lawmaker also cited the judgment in Attorney-General of the Federation vs. Atiku Abubakar on page 1,838, paragraph 5 of the Legislative Law Report of Nigeria, which prohibits a court from enacting or writing into the constitution or any other law “what the makers failed to insert.”
The Minority Leader, Ndudi Elumelu, also raised privilege and constitutional orders to cite sections 66(1)(f), 107(1)(g), 137(1)(g) and 182(1)(g), which prescribe the conditions for a public servant seeking to participate in politics.
Elumelu said, “I am taken aback that in the constitution where there is separation of powers and where we have been made, by the provisions of the constitution, to make laws; that somebody is trying to do our job.
“I had expected that whatever that the judiciary would do was to interpret and in the course of interpretation, refer back to the National Assembly and not ask that the executive should do the job of the National Assembly. That offends the spirit of separation of power.”
In his submission, Herman Hembe said he was worried that “the same wordings that were contained in the advisory given to Mr President, which was sent to this House, asking it to delete a certain section of the Electoral Act, happen to be the same wordings that were presented before the Federal High Court.”
Hembe also noted that the plaintiff refused to join the “necessary parties that made the law he was unhappy about,” as well as the Presidency. He, therefore, urged the House to “immediately appeal the matter.”
Supreme Court may nullify APC convention, member warns
Hembe warned the All Progressives Congress against allowing political appointees disqualified by Section 84(12) of the Electoral Act to participate in the national convention of the ruling party scheduled for Saturday.
“I also want to call on Mr President and other people of goodwill – those ones who are in the APC; the national convention is a few days from now; if we take steps by allowing people who are caught up with this law; if you go ahead and allow people who are caught up in this process to participate in the convention and the Supreme Court (eventually) finds out peradventure that they should not have, it will completely destroy the processes that we are going to be having on Saturday.”
The Majority Whip, Mohammed Monguno, stated that the court violated the principle of fair hearing by not reaching out to the National Assembly, said, “The proper step for us to take is to appeal that decision so that it can be set aside.”
The Majority Leader, Alhassan Ado-Doguwa, also pointed out that the parliament was the custodian of laws and the laws must be obeyed in the country.
House won’t be ridiculed under my watch, Gbajabiamila vows
The Speaker of the House, Femi Gbajabiamila, in his submission, said the chamber was not aware of the case.
Gbajabiamila said, “I believe that President Muhammadu Buhari relies, like he should, on legal advice that is given to him. I think he relied on the legal advice that was given to him that this matter was unconstitutional.
“However, I cannot sit here and allow the institution, which I, at this present time, head and lead, to be ridiculed under my watch. I have a sacred responsibility – as we all do individually and collectively – to make sure that we leave this 9th Assembly with our heads held high and knowing that we have done everything we can to protect this institution and deepen our democracy.”
The Speaker noted that the National Assembly wanted to “deepen democracy, expand the frontiers of our jurisprudence and make sure that there is a level playing field for all and sundry” with the Electoral Act, particularly Section 84(12) and restriction of political parties to direct primaries.
He said, “Unfortunately, the case was taken to court, not minding that there was a mischief that the National Assembly sought to cure. Every law and every provision has a mischief it is trying to cure. And when you are interpreting a law, assuming that the law is ambiguous, then you go to the mischief rule to get the full clarity of what was intended.
“For the fact that the National Assembly was not joined as a necessary party was very curious. More curious was the fact that the judgment was obtained in far away Umuahia, when I know court directions should be filed where the defendants are resident.
“So, it smirks forum-shopping and venue-shopping. The truth has to be told; otherwise, we will be doing ourselves and the Nigerian public who elect us a great disservice if we cannot tell the truth at this time.”
Gbajabiamila also took a swipe at the plaintiff, who “in this case had no injury that he had sustained in the matter.”
The Speaker pointed out that “the power of the legislative body was usurped,” adding, “Under any guise, you cannot remove punctuation from a piece of legislation unless it is done by those who have the constitutional authority to do so.”
Gbajabiamila said it was on these grounds, without even going into the merits, that it behoves the National Assembly to appeal the judgment and have it set aside, adding, “It is important, not for anything, but for the sake of posterity and for the records.”
He asked the AGF to respect the right of the National Assembly to appeal the judgment.
The Speaker stated, “I don’t think it is right that anyone will foreclose the right of appeal. So, I will appeal to the attorney-general to tarry and not usurp or go into the legitimate and constitutional functions of the National Assembly; because apparently, he intends to carry out the order of the court.
“I will appeal from here that the attorney-general should stop and desist for now, and not foreclose the constitutional right of appeal, and allow the law to be settled, so that we can in future say it is a settled law. Right now, it is not a settled law.”
Gbajabiamila put the points or order to motions and the lawmakers unanimously passed three resolutions: “to seek ways and means to appeal and set aside the judgment,” to “write a formal complaint to the NJC,” and that the “AGF tarry awhile until this matter is settled.”
Senators sponsor motion for appeal
At the Senate, the lawmakers unanimously adopted a motion moved by Senator George Sekibo titled, ‘Urgent need to appeal the judgment of the Federal High Court Umuahia on suit no: FHC/UM/CS/26/2022 on Section 84(12) of the Electoral Act, 2022’.
The motion was co-sponsored by 79 other senators.
According to Sekibo, the interpretation of the meaning of the words ‘civil service’ and ‘public service’ in Section 318 of the Electoral Act was unambiguous, saying, “There is a difference between the civil service or public service and political appointment.
He stated, “The Senate should show concern on the judgment, especially when she was not given the opportunity to represent herself in a matter such as this that emanates from her legitimate functions.
“Letting the judgment go without concern will become a precedent on which any person can go to court and obtain judgment to ridicule the good intentions of the National Assembly as an institution.”
The Senate, accordingly, resolved to appeal the judgment.
APC moves to bar political appointees from voting at convention, primaries
Meanwhile, the APC is set to bar political appointees from voting at the party’s national convention and primaries until the Supreme Court decides on the controversial Section 84(12) of the Act.
A chieftain of the party, who wished to remain anonymous because he was not permitted to speak on the issue, said the matter had become too controversial and it would be risky to do anything that could jeopardise both the primaries and the convention.
He said, “The matter is too controversial. We don’t want to risk the convention and primaries being invalidated because of a few political appointees. So, we may be proposing that political appointees should not be allowed to vote at the convention or even at the primaries until the matter has been settled by the Supreme Court or the National Assembly.
“This is most likely what the caretaker committee will do although it has not been finalised.” ,,
