Why is Section 84(12) of Electoral Act 2022 Causing much Controversy?

On March 18, 2022, a Federal High Court sitting in Umuahia, Abia State, declared Section 84(12) of the newly amended Electoral Act, 2022 as illegal and a violation of the provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

The judge, Justice Evelyn Anyadike in her ruling, held that Sections 66(1)(f); 107(1)(f); 137(1)(g); and 182(1)(g) of the 1999 Constitution already stated that appointees of government seeking to contest elections were only to resign at least 30 days to the date of the election and that any other law that mandated such appointees to resign or leave office at any time before that, was unconstitutional, invalid, illegal, null and void to the extent of its inconsistency to the clear provisions of the Constitution.

In view of this, she directed that Section 84(12) of the Electoral Act, 2022 be struck down as it cannot stand when it is in violation of the clear provisions of the Constitution.

Recall that President Muhammadu Buhari signed into law the Electoral Act on February 25, 2022. But on March 1, Mr. Buhari wrote a letter to both chambers of the National Assembly requesting them to delete Section 84(12) of the Electoral Act. 

Prior to his letter to the National Assembly, Mr Buhari had expressed his dissatisfaction with that particular section of the Electoral Act. He stated this emphatically on the day he signed the Bill into law, noting that the Section constitutes a fundamental defect, as it is in conflict with extant constitutional provisions.

What Exactly is in Section 84(12) of the Electoral Act?

This particular Section of the Electoral Act states that “No political appointees 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”.

What this means in simple terms is that a political appointee (like ministers, commissioners, special advisers, personal assistants, etc), be it at the federal or state level is not allowed to be a voting delegate or be voted for in a political party primary. And since such an individual was not allowed by the provision of Section 84(12) of the Electoral Act to be a delegate or be voted for in the political party’s primaries, thus, he/she cannot be a candidate for an election.

The only way such an individual would be a candidate is if he/she resigns before the party’s primaries, and political parties are mandated by Section 29(1) of the Electoral Act to conduct their primaries and submit the list of candidates at least 180 days (i.e 6 months) before the date appointed for a general election. 

In a situation where a political party fails to comply with Section 84(12) of the Electoral Act, subsection 13 of the same Section states that the political party’s candidate shall not be included in the election for the particular position the candidate has filled in for.

Perhaps because there are reports of some political appointees in this current administration intending to vie for some political positions in the upcoming general elections, or that political appointees have historically contested elections while holding their positions or intend to continue to do so, there have been several debates or push for Section 84(12) of the Electoral Act to be deleted, relying on the provisions of the 1999 Constitution which Justice Anyadike, the Judge of the Federal High Court in Umuahia, Abia State also relied upon in her ruling.

What the Provisions of the Constitution say About Appointees of Government Seeking to Contest Elections

While delivering her judgment, Justice Anyadike cited 4 Sections in the 1999 Constitution. Here’s what each Section says.

According to Section 66(1)f of the Constitution, (1) no person shall be qualified for election to the Senate or the House of Representatives (f) 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 30 days before the date of the election.

Section 107(1)f states that (1) “No person shall be qualified for election to a House of Assembly (f) 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 election”.

Sections 137(1)g and Section 182(1)g make reference to individuals who want to contest for election to the office of President and Governor, respectively. 

Section 137(1)g says that such a person (i.e the individual contesting for the office of the President) is not qualified if he/she is a person employed in the civil or public service of the Federation or of any State, and he/she has not resigned, withdrawn or retired from the employment at least thirty days before the date of the election.

Section 182(1)g is for individuals who want to run for the office of the Governor of any state. It states 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 any State, he has not resigned, withdrawn or retired from the employment at least thirty days to the date of the election”.

It was based on these provisions of the 1999 Constitution that the Judge of the Federal High Court sitting in Umuahia directed that Section 84(12) of the Electoral Act, 2022 be struck down. The judgment has however been met with mixed reactions and has generated debates among legal practitioners.

On the Umuahia High Court Judgment 

Ariyo-Dare Atoye, the Executive Director of Adopt a Goal Initiative (AGI) and one of the frontliners in the push for the Electoral Act to be signed into law told Dataphyte that the National Assembly acted rightly on Section 84(12). “Political appointees give the Executive arm an undue advantage during party conventions and congresses for elective office. Political appointees seeking elective office deny other aspirants a level playing field if they remain in the office during the primaries”, he said.

According to Atayo, Sections 66(1)f; 107(1)f; 137(1)g; and 182(1)g of the 1999 Constitution which the judge cited in her judgment did not cover political appointees because they are not public servants. 

Mr Atoye explained that “there are a plethora of cases in which the status of a public servant has been defined. One of the cases is that 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 covered by Section 318(1) of the Constitution”.

He reiterated that political appointees are not public servants that they exist at the pleasure of the appointors who can hire and fire without recourse to the public service rule which is not the case for a public servant, as the Executive cannot fire a public servant without going through the laid down procedure in the Public Service Book.

Mr Atoye further explained that by global convention, once political appointees are interested in public office, they resign immediately before the party’s timetable is out. 

He stated that the matter the judgment on Section 84(12) of the Electoral Act will not stop at the outcome of the “forum shopping” in Abia State, and therefore advised that all political appointees who are seeking to contest their party primaries should not ignore the provisions of Section 84(12) until the Supreme Court has settled the matter.

Meanwhile, yesterday, the House of Representatives and Senate stated that they will appeal the judgment of the Federal High Court, Umuahia asking the Attorney-General to delete Section 84(12) of the Electoral Act, 2022.