President Muhammadu Buhari has signed the Electoral Act of 2022 into law. Section 84(12) of the new Electoral Act states that anyone holding a political post – ministers, commissioners, special advisers, and others – must resign before being able to participate in the electoral process as a candidate or delegate.

Section 84(12) of the Electoral Act, 2022 provides thus:“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”.
The above implies that political appointees who wish to serve as voting delegates or as candidates for elected seats in a primary election must first renounce their jobs. Failure to resign as a political appointee before voting as a delegate or appearing as an aspirant in a primary election is a breach of the Electoral Act, and it also renders the primary election null and void.

IMPLICATIONS FOR PARTIES IN POWER

“Where a political party fails to comply with the terms of this Act in the conduct of its primaries, its candidate for the election shall not be included in the election for the particular position in issue,” according to Section 84(13).
As a result, if a political party violates the Electoral Act’s prohibition regarding political appointees in primaries, the party’s candidate will be barred from running in the general election for which the primary election was held. Simply put, if a party enables a substantive political appointee to vote as a delegate or run for office in a primary election, the party will not run a candidate in the election for which the primary was held.

As a result, political parties must be meticulous in their selection of delegates and aspirants, ensuring that all political appointees running in any primary election can demonstrate that they have quit their positions. If a political party is careless enough to allow a political appointee to participate in primaries, it may cost them a chance to run in the general election, and if they succeed in getting through the electioneering process and winning, it may be grounds for nullification of the election, giving the political party with the second most votes cast an opportunity to emerge as the lawful candidate. V. KARFI & ORS (2017) LPELR- 47024 SC APC & ORS V. KARFI & ORS

IS SECTION 84(12) OF THE ELECTORAL ACT, 2022 CONSTITUTIONAL?

The validity of Section 84(12) of the Electoral Act of 2022 has been a point of contention. In fact, when presenting the newly enacted electoral law to the public, President Muhammadu Buhari raised concerns about the validity of this contentious provision. Those who oppose its retention say that it breaches Sections 40, 42, 66(1)(f), 107(1)(f), 137(1)(g), and 182(1)(g) of the Federal Republic of Nigeria’s 1999 Constitution, as amended (hereinafter referred to as the 1999 Constitution).

A person shall not be qualified for election in Nigeria if the candidate is employed in the civil or public service of the Federation or of any state and has not resigned, withdrawn, or retired from the employment at least thirty (30) days before the election date, according to the combined effect of Sections 66(1)(f), 107(1)(f), 137(1)(g), and 182(1)(g) of the 1999 Constitution. Any employed civil worker or public servant wanting to contest an election in Nigeria must have quit his or her post at least 30 days before the election date, according to the following constitutional clause.
As a result, the following questions must be addressed: what is public service, and who are public servants? Are “political appointees” considered public servants under the 30-day rule?

The Supreme Court, the Court of Appeal, the Federal High Court, the High Court of the Federal Capital Territory, Abuja, and the Sharia Court of Appeal of the Federal Capital Territory are all examples of public service of the Federation as defined in Section 318(1) of the 1999 Constitution.

Staff of any company or enterprise in which the Government of the Federation or its agency owns controlling shares or interest; and Members or officers of the armed forces of the Federation or the Nigeria Police Force or other government security agencies established by law;

 

Under the same Section, there is a similar provision for State Public Service. From the foregoing, it can be determined that the Constitution is unambiguous about who falls under the category of federation or state public service. Political appointees are excluded from the list. And it is settled law, like Babylon’s water, that in a constitutional provision, the express mention of one person or thing is the exclusion of another, or the inclusion of one is the exclusion of another, as stated in the Latin maxims: expression unius personae vel rei, est exclusion alterius, or inclusion unius est exclusion alterius. ADEWUNMI V. MILITARY GOVERNOR OF ONDO STATE (1988) 3 NWLR (PT. 82) 280 AND ATTORNEY-GENERAL BENDEL V. MILITARY GOVERNOR OF ONDO STATE (1988) 3 NWLR (PT. 82) 280 STATE V. ADEWUNMI (1988) 3 NWLR (PT. 82) 280 AND ATTORNEY-GENERAL BENDEL STATE V. AIDEYAN (1989) 4 NWLR (PT. 118) 646

The mere fact that the Constitution has clearly defined who public servants are means political appointees are excluded and therefore not public servants.Our Court of Appeal in PPA v. PDP & ORS (2009) LPELR-4865(CA) specifically held that political appointees and political office holders are not “Public Servants” and cannot be regarded as such under the Constitution. The court further held, per Olukayode Ariwoola, JCA (As he then was), that:

“Because Section 318(1) of the Constitution lists those it considers to be persons in the public service, others who are not listed, such as the chief of staff and the civil commissioner, are not to be considered persons in the public service or public servants as defined by Section 182(1)(g) of the Constitution.” The fact that a person receives a salary and allowances, lives in a government quarter, and drives a government vehicle does not, by itself, qualify him or her as a government employee in the State’s public service as defined by the Constitution.”

Similarly, in the case of ADAMU V. TAKORI (2010) ALL FWLR (P. 540) 1387 C.A., the Court of Appeal held that a political appointee like the Attorney-General is not a public servant employed in the service of the federation or of a state and is therefore not caught by Section 318 (1) of the Constitution.

In the case of ONI v. FAYEMI & ORS (2019) LPELR-46622(CA), where the issue was whether a Minister of the Federal Republic of Nigeria is an employee in the Public Service who must resign before contesting an election, the court held that a Minister, as a political appointee, is not an employee in the Public Service of the Federation and thus is not constitutionally obligated to follow the 30-day resignation rule for an employee in the Pu.

On the strength of the above cited judicial precedents, it can be safely argued that political appointees are not employees in the Public Service and so cannot be covered by the 30 days constitutional provisions of resignation before the date of an election. It is also clear that unlike public servants, political appointees have no permanent and established Service Contract in the public service and can be hired and fired at will by the Chief Executive that made the appointments.

Apparently, the Constitution does not expressly or impliedly provide whether a political appointee must resign before it can contest election, as the 30 days rule is only applicable to employees in the Public Service. Thus, in the absence of a constitutional provision in this respect, the National Assembly has the inherent constitutional and legislative powers to enact Section 84(12) of the Electoral Act which does not violate or offend any Constitutional provision. Section 84(12) of the Electoral Act makes provision in respect of resignation of political appointees before primary elections while Sections 66(1)(f), 107(1)(f), 137(1)(g) and 182(1)(g) of the 1999 Constitution make provision for 30 days resignation rule for employees in the Public Service; the two are clearly distinct and must not be confused, either innocently or mischievously, as the same.

On the second leg, the reliance on Sections 40 and 42 of the 1999 Constitution is equally faulty. Section 40 provides for the right to peaceful assembly and association. It beats the imagination how Section 84(12) of the Electoral Act infringes on the constitutional right to peaceful assembly and association. Mere resignation, for the purpose of participating in primary, does not vv
Surprisingly, the right protected by Section 40 is not unqualified. The National Assembly has the authority under Section 45(1) of the 1999 Constitution to enact legislation that could properly limit the right to freedom of association. The Electoral Act of 2022 was legitimately enacted by the National Assembly in this case.

 

Section 42 of the 1999 Constitution, once again, guarantees the right to be free of discrimination. Again, I submit that this portion of law cannot be used as a legally acceptable basis for declaring Section 84(12) unlawful. No Nigerian should be discriminated against on the grounds of race, place of origin, sex, religion, or political opinion, according to Section 42 of the Constitution.

Then I’m forced to ask: How is requiring a political appointee to resign before voting in a primary election discriminatory on the grounds of ethnicity, place of origin, sex, religion, or political opinion? On the other hand, one can wonder who is being discriminated against?
Significantly, the National Assembly can adopt law that “imposes limits with respect to the appointment of any individual to any office under the State,” according to subsection 3 of the same Section 42 cited by the opponents of Section 84(12). This, in my opinion, offers Section 84(12) of the Electoral Act of 2022 still further legal rationale.

In the end, we must question the sincerity of the bulk of individuals speaking out against Section 84(12) of the Electoral Act of 2022. Is it a matter of public interest, political machinations, or personal gain? Any attempt to invalidate or thwart the sacrosanct provision of Section 84(12) of the Electoral Act of 2022 will fail because it is constitutionally valid, legally sound, and necessary for the sanitization of our toxic political climate.

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