A Senior Advocate of Nigeria, Rasheed Adegoke has lent his opinion to the flurry of reactions trailing the decision of the Federal High Court, Umuahia to nullify the provision of Section 84(12) of the Electoral Act 2022 and instructing the Attorney General of the Federation to delete the provision.

In an interview with Punchng, the Learned Silk described the Section 84(12) as unconstitutional, arguing that its nullification will be sustained on appeal because it runs contrary to the constitution. He explained that the Constitution had provided for qualifications to be met to be able to run for office and any addition to those qualifications cannot be done by statute but through a constitutional amendment process.

He opined; “The provision of Section 84 (12), from a proper interpretation of that statute and the constitution, the provision is ultimately unconstitutional. There is no way it can be sustained. And those who are saying it should be removed are on firmer ground….. The constitution has stipulated the provision for qualifications. It is the same constitution that says that if you are in public service of the federation, you must resign 30 days to the election.

The constitution doesn’t say anything about any other category of persons. The constitution only emphasises that if you’re a person employed in the public service of the federation, resign 30 days to the election. With respect to all other persons, it does not make any such provision. If anybody is going to disqualify any other person in another position, there will be a need to amend the constitution to include that anyone who is a political appointee cannot be nominated by a political party except if the person has resigned. “

He however decried the situation where political appointees who have duties and responsibilities to the public abandon their assignments in pursuit of their political ambitions. He described such as morally wrong, however insisting that it cannot be cured through a statutory intervention as the National Assembly has attempted to do but through a constitutional amendment. He further said that the effect of Section 84(12) as it stands is discriminatory against political appointees.

“The implication is that they have added to the requirements of qualification. It is going to be discriminatory statutorily.

It’s not morally right. It’s even against the interest of the public for a political appointee who was charged with an assignment to serve the public to abandon it for his own personal ambitions. However, that cannot be cured by statutory intervention it would have to be done by a constitutional intervention.

Let the National Assembly just get its acts together, go back to the constitution, amend it to reflect, put a clause in the constitution that will say that where you’re a political appointee, you cannot contest an election while in that office you must resign within a period. If it is stated and entrenched that you must resign within a year in the constitution, it is final!

But for them to do it by way of statutory manipulation, it shows a lack of knowledge or being mischievous.”

On the Judgement of the Federal High Court, Umuahia, which nullified the section and ordered the Attorney General of the Federation to delete it, Adegoke agreed that the court could nullify a section and further stated that such nullification stands subject to appeal. He expressed dissent at the order of the Judge directing the AGF to delete the said provision haven been gazetted already.

“I believe the National Assembly should have been joined in the case. The court interpreting section 84 (12) in that regard, I think ought to have limited it to the issue of whether the section adds to the constitutional requirements of contesting an election, so if it does, it is a nullity. Now for the court to say that the AGF (Attorney-General of the Federation) should delete that provision is beyond the court to say that. The court can declare that provision a “nullity” and that’s all.

It is wrong for the court to tell the attorney general to go and delete the provision that is already gazetted.

The court may say that provision is a nullity and once the court has pronounced it, once it is upheld by the appellate court, if there is an appeal and if there is no appeal that is the law. It will be a nullity. It is a nullity and nobody can rely on it.”