Some of the “owners” of Nigeria gathered themselves together at the Eagle’s Square, Abuja on March 26, 2022 to determine the course of events for Nigeria in year 2023, in unbelievable opulence and merriment, in the midst of the poverty, famine, killings, darkness, inflation, fuel scarcity, unemployment and the uncertainty that all seem to envelope Nigeria, mostly on account of their own misrule. Some have since wondered whether the All Progressive Congress (APC) should not have organized a low key event to honour the masses of our people that have been subjected to suffering and lack, largely on account of its failed promises. Earlier in Abia State, Governors of the Peoples Democratic Party (PDP) also assembled together in wanton fanfare, bantering away in some kind of involuntary amnesia, surrounded by pervasive neglect of the entire South East zone and total paralysis of an entire race. The end result of these events is that politicians want to perpetuate themselves and their cronies in office; on the one hand most lawmakers want to return to their seats with or without the support of their governors whilst on the other hand, the executive seeks an escape route from the hammer of the newly-passed Electoral Act 2022. In section 84 (12) of that Act, there is an obligation imposed upon certain political office holders to vacate their positions to be able to participate in certain political events.

Section 84 (12) of the Electoral Act provides as follows:

“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 such persons or other candidates for any election.”

Breaking it down, section 84 (12) is a complete bar against political appointees from actively participating in pre-election matters during the Conventions and Congresses of their political parties. They cannot be delegates to vote or be voted for, preparatory to their nomination or the nomination of other persons as candidates for any election. In simple terms, political office holders who got into office through appointment cannot participate in the process leading to the nomination of any candidate for any election, as such participation automatically nullifies the process. The question now agitating the minds of Nigerians is whether section 84 (12) violates any provision of the Constitution.

The starting point is the most often-quoted idiom of one eating his cake and then seeking to have it back, when the said cake has been absorbed into his system and is undergoing the process of digestion so that it can never be recovered forever. It is a world of two options for the political appointees, either to retain their current political office or to seek elective office, but certainly they cannot combine both. A simple analysis is where a person has been appointed as a Special Adviser to the Governor and he desires to be a member of the House of Assembly through election and yet he wants to retain his position as a member of the executive whilst jostling to join the legislature. Nigeria does not run a parliamentary system of government whereby the executive and the legislature coalesce together. It is called separation of powers. How will it feel for instance, for a sitting judge of the High Court to seek to participate in any elective office either as a governor or a senator, without first resigning his position as a member of the judiciary? If the political appointee who seeks elective office is satisfied with his office, then why seek to jettison it? Section 84 (12) must have been seen by political appointees (Ministers, Commissioners, Special Advisers and other executive aides) as a direct war against their political ambition by the legislature and so it is reasonable to surmise that they are the ones behind all the cases filed in court to nullify it.

It is not in doubt that under and by virtue of section 6 (6) (b) of the Constitution, all courts of record established by the Constitution have inherent powers over disputes between persons and persons and governments but the real issue is how such power is exercised in matters of this nature. The Federal High Court in Ibadan questioned the locus standi of those that sought to nullify section 84 (12) of the Electoral Act 2022 and struck out the suit, whilst the same Federal High Court in Umuahia saw nothing wrong in directing the executive through the Honourable Attorney-General of the Federation to delete it from the Act immediately. In such an important case as this, I verily believe that greater participation by other stakeholders was necessary. Now back to the main question: is section 84 (12) unconstitutional?

A piece of legislation is said to be unconstitutional when it runs contrary to, contravenes or is inconsistent with any of the provisions of the Constitution. The framers of the Constitution incorporated the inconsistency rule in section 1 (3) of the Constitution because of the supremacy rule earlier introduced in section 1 (1) of the same Constitution, which states that “this Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria”. This is the only way to guarantee unity and strength for the federation called Nigeria or else there will be chaos and confusion as to which or whose law enjoys supremacy, on the same subject. To drive home its supremacy clause, section 1 (2) stipulates that “the Federal Republic of Nigeria shall not be governed nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of this 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.”

•Ebun-Olu Adegboruwa (SAN) writes from Lekki Lagos.

Update news