• Provision is unconstitutional, says Sagay
• There is nothing wrong with it, Adegboruwa insists
• Melaye, Kadiri, others urge NASS to ignore President
Eight days after President Muhammadu Buhari assented to the Electoral Act 2022, the National Assembly has begun the process of amending the legislation, which has divided Nigerians. President Muhammadu Buhari had written to the Senate to amend the newly signed act.
The President, in a letter addressed to Senate President Ahmad Lawan, and read at plenary yesterday, demanded the federal lawmakers delete Section 84 (12) outright.
The letter reads: “I write to draw your kind attention to some salient issues contained in the act and to seek your immediate legislative action thereon. I have carefully studied the recently assented electoral act amendment 2022 and must admit that there are positive provisions that could revolutionalise election process in Nigeria, particularly through the introduction of technology that will guarantee the constitutional rights of citizens to vote effectively.”
He, however, added that the practical application of section 84(12) “subjects serving political office holders to inhibitions referred to under Section 40 and 42 of the 1999 Constitution, as it is imperative to note that the only constitutional expectation from 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, as provided in Section 6(1)(f) of the 1999 Constitution.”
The contentious issue, which the President seeks an amendment, bars political appointees from voting or standing for election in conventions and primaries unless they resigned about 180 days earlier. The provision has continued to divide Nigerians, who are either supporting President Muhammadu Buhari’s call for its amendment or insisting it must be retained.
While majority of Nigerians believe that retaining the provision gives all candidates level playing grounds such that politicians would not use their aides for their advantages during primaries, a few others, like the renowned legal scholar, Prof. Itse Sagay (SAN), are throwing their weight behind the president.
Sagay said: “I agree entirely with the President, because what happened, at least, to my knowledge, was that the bill was first sent to the President containing provision for direct primaries, which he found obnoxious, because it will be difficult to execute and all sorts of constitutional conundrums.
“So, he objected to it and said if they could remove it, he would sign the bill. Now, the lawmakers did something they are very fond of, always looking for some personal advantage when carrying out responsibilities to this country.
“They slipped in new provisions. This time, they prevented people who are in executive positions from contesting or from taking part unless they resign and yet the constitution has already made provisions for checking these resignations for those holding positions in the executive.”
According to him, the lawmakers created a situation, which will force those appointees to resign about 180 days to participate in primaries.
The professor of law stressed that the provision was contrary to the provisions of the constitution, which stipulates 30 days resignation window for public office holders, adding that lawmakers were inserting the clause to suit themselves because they thought such provision would give them more opportunities as against those who are in various executive appointments.
“So, the president was quite reasonable in not signing the bill on time. I personally would not have signed at all because of that mischief from the National Assembly. I think that provision is unconstitutional and an example of extreme self-serving attitude,” he said.
A Global Vice President, International Republican Institute (IRI), Timi Olagunju, agreed that the spirit of the section is mainly to ensure that those in power do not use political appointees as tools to fulfill their ambitions.
He believes that since the provision borders on the voting rights of members of political parties, parties should be allowed to determine their own fates.
“The constitution in section 40 guarantees the right to association and as such it does preclude from another. A minister, for example, is an appointee of government and that should not preclude the fellow from associating and enjoying the rights associated with her political party such as voting.
“Instead of majority of the APC lawmakers in the National Assembly deciding for political parties how to run their internal affairs in this sense, they should let the parties decide how they want their association to run, and let people who are part of the party either agree or disagree to it,” he suggested.
Olagunju stated that the political parties should be the one to decide if they want to include such acts into their political party rules.
“The president should not even decide for the parties, each political party should decide what works for them. Also, the National Assembly should not either. The National Assembly should not regulate how people should associate with themselves. Making a law in that sense may not really go well,” he declared.
Reacting to the argument that it violates the provision of the constitution, Abuja based lawyer, Abubakar Sani, expressed doubt that the clause derogates the fundamental right of Nigerians to freedom of association and expression.
He argued that as far as the restriction is only applicable to political appointees and not others such as civil servants, it is justifiable.
His words: “Is it a valid derogation from the fundamental right of freedom of association and of expression? That is the question. To the extent that that restriction is only applicable to political appointees and not others (presumably, civil servants), is it justifiable or does it violate the right to equal protection of the law under the African Charter? I don’t think so!”
Also toeing the same line of argument, human rights activist, Ebun Olu Adegboruwa, (SAN) explained that the reason for the clause is to ensure that all contestants to political offices have a level playing ground.
He noted that many politicians had, in the past, used their appointees to aid their victories, while others contested using their instruments of office to gain advantage over their opponents.
“The spirit of the provision in my view, is that it gives opportunity to everyone to participate without having advantage over other aspirants. Everybody should go to the poll on a level playing field to achieve equality for all candidates. So, if the person is still in office while contesting for election, it is likely that he will use the instrument of office for his own advantage against his opponent. Therefore, everybody should be on equal footing in approaching elections,” he stressed.
On his own, All Progressives Congress (APC) chieftain, Olawale Oshun stated that there is no reason the National Assembly should review section 84 of the electoral Act.
Oshun stated that anybody who holds office on appointment in the public service, because he takes decisions on all manner of issues, should not be allowed to be part of political activities.
He noted that such persons must be apolitical, adding that if they intend to become political and contest elections or participate in electoral process, they should resign early enough.
“There is no way they can remain non-partisan when they are already flying the flag of a party on any issue. My thought is that they should resign and for that reason, I don’t see any need why the National Assembly should review the clause,” he said.
MEANWHILE, two former members of the Senate from Kogi State, Senators Dino Melaye and Alex Kadiri, have urged the National Assembly to overlook President Buhari’s call, saying the provision reflects the wishes of long suffering Nigerians.
While Melaye, who had brief stint in the current Ninth Senate, noted that the federal lawmakers have finished work on the law, Kadiri, who represented Kogi East in the fourth Senate, argued that having signed the bill into law, NASS should disregard the President’s suggestions.
Both former lawmakers spoke separately, just as The Guardian gathered that the Presidency was convinced that the contentious Section 84 (12) targeted influential members of the federal cabinet.
Sources in the Presidency confided in The Guardian that President Buhari was availed of sufficient evidence that the section was meant to dislodge his appointees believed to be nursing diverse political ambitions for the 2023 poll.
“As at the time Mr. President travelled, the puzzle was the possible implications of withholding assent from Electoral Act amendment bill for the third time in four years, especially when the lawmakers had expunged portions of the bill that had to do with mandatory direct primaries.
“In the end, after weighing the implications of such refusal on the administration and the person of the President, who had been a victim of faulty electoral processes, it was agreed by majority of stakeholders that the President should sign the bill into law and save our party from public scorn.
“It was obvious that some leaders of the National Assembly were working in cahoots with entrenched political interests to get back at the Presidency and those they felt could influence things in APC,” a source said.
One of the sources disclosed that when the back and forth argument over whether the President should sign or not was going on, “some insiders instigated civil society organisations to embark on protests to the National Assembly and that made it imperative for the President to sign and make his observation public.”
He said that the Presidency is optimistic that the National Assembly leaders would keep to their promise to act on an executive bill that would alter those portions pointed out by the President.
Attempts to get incumbent Senators to comment on the development could not bear fruit as at the time of filing this report, but Melaye and Kadiri said the President has seen the public interest of the Electoral Act and appended his signature.
On his part, Senator Kadiri, while arguing that NASS should ignore President Buhari and continue their work, said: “I think he has signed what they wanted, they should just ignore him and continue with what they are doing.”
He recalled that Section 84(12) spoke to the non-eligibility of a political appointee as a voting delegate or aspirant and as such directly affected some members of the federal cabinet, especially those that could play crucial roles during the APC national convention.
“The section stipulated 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.”
While raising the red flag on the above section, the President had observed: “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.
“It would amount to 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.”
Melaye stated: “My take is that the National Assembly should disregard the President’s suggestions. If after they have amended the Act again to suit the Presidency and they do it the second time, that means the National Assembly has confirmed itself as a department of the Presidency.
“There is nothing wrong with the section and the President is not supposed to raise any red flag, because ministers and political appointees are not elected. All delegates to the convention and congresses are elected, local government delegates are elected, chairmen of Local Government councils are elected, party officials are elected, National Assembly members, who go to the convention and congresses are all elected,” Melaye argued.
“On the other hand,” he went on, “Ministers and political appointees are not elected and this is a democratic space. So, the National Assembly did the right thing by excusing ministers and political appointees from participating in primaries and conventions and so, there is nothing wrong with that. It will not be democratic to bring people, who are not democratic to come and participate in a democratic process.
“If these ministers and political appointees want to be delegates to either the convention or congresses or primaries, then they should go and participate in the democratic process that will throw up the delegates at their various grassroots.
“Some of them cannot win election to be councilors and they want to be delegates to primaries, conventions and congresses. If they want to participate they should go back and become Local Government delegates to all elections and not just expecting manna to fall from heaven.
“The days of manna falling from heaven is in the Old Testament, but the New Testament said he that refused to labour should not eat. If the National Assembly carries out this second amendment recommended by the President after the first one, then the National Assembly must have confirmed that it is an appendage of the Presidential Villa and not an independent arm of government.”
Melaye expressed the confidence that the Electoral Act 2022 will definitely enhance the electoral process, stressing that it will increase transparency, confer credibility on the process.
On the possibility that the 2023 election will hold without hitches based on the Electoral Act, particularly, against the background of faulty BVAS machines as experienced during the FCT LG election, he said having conducted the election in Anambra State and the FCT council polls it is enough ground for INEC to correct the anomalies and bridge the gap before the 2023 election.
“They now know where the technical hitches are, where the problems are and I expect that it should be perfected before the 2023 election. But, definitely BVAS is giving credibility to the entire electoral process.
Continuing Senator Kadiri said the electoral act is an improvement on what the country had before. His words: “I will only urge the security agencies and the thugs to allow Nigerians decide who to be their governors, chairmen, their president and chairman.
“Because I am an active participant in the electoral process and I know what I am talking about. Beautiful law, signed act, very good, but will those in power allow the context of this law as signed to be put into effect for the good of the people?
“An appointee can not be a delegate, it is absurd that I will be governor of a state, I appoint 20 commissioners, 30 advisers, 30 special assistants and during an election they will come and vote, they have no mandate except the mandate of the man who appointed them.
“He can not be allowed or be permitted to multiply himself. If the President for example allows all his political appointees, the President has over 500 political appointees that in any election they participate they are likely to determine who wins. That is not democracy.”
On whether he thinks the National Assembly will have the courage to ignore the President, Kadiri said: “We should wait and see, there are some of us who are not in the National Assembly but we talk to them on regular basis. The institution of the National Assembly is being tested.
“Those of us who have been there before and those who are there now, are of equal stakes in the integrity of the National Assembly. It is my prayer that after our individual intervention, they will just allow sleeping dogs to lie.
“Appointees of the President or governor or chairman can not be delegates to any elective office, it is wrong.”
According to him, any law can be effective for elections provided those in authority allow the context of the law to supersede their individual interests.
“This Act that has been signed into law will improve our electoral fortunes provided those in power allow the election to be free and fair, but when the police, thugs and military are used to circumvent the process, whereby making the will of the people useless, it becomes a tragedy and that is what has been happening.
“I have watched elections in this country, I have watch my party snatched ballot boxes in election we did not win. Nigerians don’t care about positive legacies, but I hope Buhari at his advanced age like me would want a positive legacy to be attached to his name.
“That positive legacy should be one that would make people to pray and wish that Buhari were around. He should not dabble into anything orchestrated by his inner circles. They are not elected, but are just friends and appointees. He should listen to those of us who conducted elections to bring him to power.
“We are happy with this electoral law as signed and we would be happy if it is implemented. We will not be happy if the cabals surrounding Buhari, whether friends or relations or appointees try to change the will of the people,” he declared.
THEGUARDIAN
