The Chairman of the Nigeria Bar Association Section on Public Interest and Development Law (NBA-SPIDEL) and Former 1st Vice President of the Nigerian Bar Association, Dr. Monday Ubani has lent his opinion to ongoing conversations and debates on the constitutionality of section 84(12) of the newly signed Electoral Act amendment.

In his analysis shared with TheNigeriaLawyer, the Bar leader raised concerns about what he deems as the unconstitutionality of the said section which precludes political appointees at any level from partaking – voting or contesting in the primaries of any political party.

Dr. Ubani whilst acknowledging the importance of the new legal regime for the country’s electoral process brought about by the amendment, however stated that Nigerians were carried away by the euphoria of the novel provisions of the Act including electronic transmission of results amongst others, that attention was not given to the implication of the said section which he described as “dangerous” despite the eyebrow raised by the President.

“To the excitement of all and sundry, especially to those patriotic Nigerians that desire sound electoral legal framework for our fledging democracy, the assent of the President of the Amended Electoral Bill was a welcome development and was greeted with wide applause.

The truth of the matter is that Nigerians will never get it right with leadership if the Electoral legal framework remains archaic and bereft of principles that ensures that the votes of the majority count.

The Amended Electoral Bill introduced some innovations, particularly the reception of limited e-voting and holistic e-transmission of electoral results.

However the President after much persuasion decided to assent to the bill but with a caveat that the National Assembly should ensure that Section 84(12) of the Act be amended as its provision offends the express provision of the constitution pertain to the rights of certain political class(Appointed Political Office Holders) to associate and participate in the political system in the country.”

To further buttress his position, Ubani reproduced the contentious section, to wit:

“The offending Section provides that “No political appointee AT ANY LEVEL shall be 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”.

S84(13) further provides that “where a political party fails to comply with the provision of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue.”

According to him, the Section disenfranchises political appointees of Governors and Presidents from participating in the primaries of any political party whether as an aspirant or delegate. He further stated that despite the objection raised by the President regarding the effect of the Section many Nigerian including himself did not consider it as they were all concerned with getting a new electoral legal framework not minding the concerns of the President.

“This section truly speaking, disenfranchises political office holders who are appointees of the governor or president from participating at the primary election of the party either as a delegate or as a candidate.

When President Buhari was signing this law and was raising his preliminary objection to it, many of us including my humble self did not see the harmful effect as seen by him. The Section is a very dangerous provision.”

We had felt that President Buhari’s complaints and delay in signing the bill was a delay too many and that he should just sign the bill and let us move on as a nation. Recall that the first time the bill was passed and brought to President Buhari, he refused assent citing the provision on party primaries as his reason. Tempers grew and voices were raised against the decline. The bill when returned was amended to reflect the wish of the President.”

He described the provision as a subtle move meant to give elected office holders undue advantage over and above political appointees in the Nigerian political process, qualifying it as evil and discriminatory. He further declared the section contradictory as it deflects from the fundamental right against discrimination in the 1999 Constitution.

“A careful perusal of the Act reveals a sinister motive meant to pave way to the “elected office holders” to have an undue advantage over and above every other political office aspirant in Nigeria. This is pure evil and should not be allowed to stand. This Section really offends the provision on the fundamental right against Discrimination. Section 42 of the 1999 Constitution provides as follows:

(1) A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:-
(a) be subjected either expressly by, or in the practical application of, any law in force in

Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of Nigeria of other communities,

ethnic groups, places of origin, sex, religions or political opinions are not made subject; or

(b) be accorded either expressly by, or in the practical application of, any law in force in

Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex, religions or political opinions.

(2) No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstances of his birth.

(3) Nothing in subsection (1) of this section shall invalidate any law by reason only that the law imposes restrictions with respect to the appointment of any person to any office under the State or as a member of the armed forces of the Federation or member of the Nigeria Police Forces or to an office in the service of a body, corporate established directly by any law in force in Nigeria.

In his words the summary of the provision is that it will amount to violation of right against discrimination if someone is denied a right or position that another person of his class or group is allowed to enjoy. He further queried that section 84(12) restricts a political appointee from contesting or voting in the primary election of his political party unless he resigns but the same law allows legislators, governors, local government chairmen who are members of the same political class with the Appointees to remain on their seats to vote and be voted for. This appears absurd, illogical and unacceptable.

Going further he stated that the court of Appeal in Segun Oni Vs Kayode Fayemi has described Political Appointees as not Public Servants who are bound by the mandatory 30 days resignation clause that they must comply to if they must contest election. Also noting that the Supreme Court did not disturb this decision as it upheld the decision of the Court below by dismissing the appeal sorely on the ground that Segun Oni filed his appeal out of time.

“That decision remains a precedent till date. In other words Political Appointees are not public servants employed in the public service that should resign from office before running for an office.

If the constitution of 1999 as Amended and approved by the decision of the Court of Appeal in Segun Oni Vs Fayemi held the view that A Political Appointee is not bound to resign from office 30 days before election as Section 318 of the Constitution never qualifies him or her as a Public Servant where does S 84(12) derive its validity to disenfranchise the office of political appointee from voting and contesting for a primary election in his political party?”

In concluding, he stated that to the extent of its contrariety with the provisions of the Constitution, that the said section is null and void in accordance with S.1(3) of the 1999 Constitution.

“Plethora of authorities have established the principle that where a provision of an enactment by the legislature conflicts with the express provision of the constitution, the said extant law shall be declared null and void for conflicting with the supreme provision of the constitution. That is the essence of S1(3) of the 1999 constitution as Amended. It provides and I quote “If any other law is inconsistent with the provision of this constitution, this constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void”.

If the grundnum of the land does not disqualify a political appointee from voting and contesting for an election in his political party, the new Amended Electoral Act does not possess the requisite vires to so do, and as long as it tends to do this, it has to be set aside as it runs contrary to the express provision of the 1999 constitution with regards to Right against Discrimination, Association etc. The validity of this assertion shall be so tested in our vibrant judiciary.”