Tha NASS cannot amend the constitution through the back door

BY CHIEF MIKE A. A. OZEKHOME, SAN, OFR, FCIArb, LL.M, Ph.D, LL.D

INTRODUCTION

In these trying times that assail our beleaguered Nation, the NASS should be seen to concentrate more on how creatively make laws that engender peace, order and good government of Nigeria; laws that promote prosperity, good governance, social justice and egalitarianism. The recent amendment to the Electoral Act has caused too much needless national hoopla and ruckus. It ought not have been at the centre stage of discourse in a sane society. Is conscripting the political space and discriminatorily barring certain classes of persons from contesting elections simply because they are political appointees, Nigeria’s immediate bane at the moment? I think not. There are more serious pressing issues with the newly amended Act of 2022 that need to be unearthed and discussed. I will highlight one or two anon.

NASS’S EARLIER MISSTEPS

Recall that the NASS had earlier proposed section 52(3) to the Electoral amendment bill which had sought to strip INEC of its independence and overall control over election matters. It had sought to subject INEC to the remote control and supervision of the NASS and the Nigerian Communications Commission (NCC), on the critical but sore issue of electronic voting and transmission of  election results.

This fatal step was later reluctantly reversed by the NASS after Nigerians rose up in unison against it. I, from my little inconsequential corner, had spilled buckets of ink (permit the hyperbole geared towards emphasis); and made several television appearances, advocating to get the clause extirpated, root and branch, from the amendment bill. The NASS had,at that time, comfortably ignored the fact that under section 158 of the 1999 Constitution, INEC “shall not be subject to the direction or control of any other authority or person”. The NASS had conveniently forgotten that it is INEC and INEC alone that is responsible for organising and supervising all elections to political offices; registering, monitoring of political parties; and conducting voter and civic education, including promotion of sound democratic processes. See also section 153 (f).

THE ALBATROSS IN SECTION 84(12) & (13) OF THE AMENDED ELECTORAL ACT

The NASS, while amending the Electoral Act, inserted subsections 12 and 13 into section 84,which, unlawfully, illegally and unconstitutionally, barred and disenfranchised serving political office holders from voting or being voted for at conventions or congresses of political parties. The now struck down offensive section 84(12) had provided thus: 

“No political appointee at any level shall be voting delegate or to be voted for at the convention or congress of any political party for the purpose of the nomination of candidates for any election”. 

Section 84 (13) drives this home more pungently, thus:

“Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for the election shall not be included in the election for the particular position in issue”.

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With these two provisions, the NASS had sought to completely emasculate and consign to the vehicle of eletoral oblivion, a section of the political class,simply because they are currently serving their country. I wholly disagree with these subsections of section 84, more so as the qualifications to contest any political election in Nigeria have been exhaustively stipulated in the Nigerian Constitution, our grundnorm.

THE MORE ALARMING OUSTER CLAUSE IN THE AMENDED ELECTORAL ACT

I am surprised that all the critics of the Federal High Court judgement in Umuahia delivered by the Honourable Justice Evelyn Anyadike, have not adverted their learned minds to the more worrisome and  dangerous provision in section 84 (15). After granting the Federal High Court jurisdiction in section 84 (14), to entertain cases from “an aspirant who complains that the provisions of this Act and the guidelines of a political party have not been complied with in selection or nomination of a candidate of a political party for election, may apply to the Federal High Court for redress”, subsection 15 of section 84 went on to completely oust the jurisdiction of all courts on matters concerning primaries, thus: 

“Nothing in this section shall empower the courts to stop the holding of primaries or general elections under this Act pending the determination of a suit”.

Interpreted in another way, section 84(15) is simply saying: 

“Courts, please, allow political parties to first do maximum damage during their primaries and general elections, and subsequently entertain emerging suits thereafter after the wrong candidates would have emerged and after resources, time and energy would have been expended by individuals, political parties, INEC and the electorate to conduct sham elections”. I am worried by this obnoxious ouster clause. Are you not?

I believe that the above subsections 12 and 13 of the amended Electoral Act are totally unconstitutional. They are ultra vires the powers of the NASS. What the NASS intended to do by subsections 12 and 13 of section 84 is to amend the Constitution through the backdoor, without going through the tortuous  amendment process prescribed in section 9 thereof; which deals with the mode of altering the provisions of the Constitution. 

PRESIDENT BUHARI’S EARLIER OBJECTION

President Muhammadu Buhari had initially kicked and refused to assent to the Electoral Bill as initially amended by the NASS, which contained the above sub sections, especially subsection 12. To escape from the avalanche of criticisms that trailed his initial withholding of assent, Buhari later reluctantly signed the Bill into Law; but with a caveat vide a letter to the NASS, to consider amending section 84(12) subsequently.  He believed that subsection 84(12) imported into the Constitution extraneous matters such as blanket restriction and disqualification of political appointees who ought to be accorded protection. His argument is that a public officer could resign his office, withdraw or retire from service 30 days before the date of election in accordance with section 66(1) (f) of the 1999 Constitution. I think his handlers should have simply done an Executive amendment bill to the NASS; not a mere letter. But, I agree with his serious reservations about section 84(12).

WHY SECTION 84(12) AND (13) ARE OFFENSIVE AND UNCONSTITUTIONAL

QUALIFICATION AND DISQUALIFICATION FOR ELECTION

Sections 66 and 107 of the 1999 Constitution provide for circumstances under which certain public officers are qualified or disqualified from contesting for election.

QUALIFICATION FOR ELECTION

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Let us start with sections 65 (1) and (2) and 106 of the Constitution which deal with qualification for election, as a member of Senate and House of Representatives; and House of Assembly respectively. See also sections 137(1) (g) and 182(1) (g) of the 1999 Constitution.

These sections provide that such a person for Senate or House of Representatives or member House of Assembly of a state shall be qualified to contest election if he is a citizen of Nigeria and has attained the age of 35 years (30 years for a House of Representatives members; and 25 years for a House of Assembly member); is educated up to at least school certificate level or its equivalent; and he is a member of a political party and is sponsored by that political party.

DISQUALIFICATION FOR ELECTION

By virtue of sections 66 (1) and 107 (1) respectively any of the above the Constitution, a person is also disqualified if he has voluntarily acquired the citizenship of a country other than Nigeria; adjudged to be a lunatic or a person of unsound mind; is under a sentence of death, imposed on him by a court of competent jurisdiction; or a sentence of imprisonment or fine involving dishonesty or fraud. Such a person is also not qualified if he is an undischarged bankrupt; is a member of any secret society; or he has presented a forged certificate to INEC. 

The most critical subsection for our discussion here, is section 66(1) (f) which provides that if such a person is employed in the “Public service of the Federation” or “Public service of a state” and has not resigned, withdrawn or retired from such employment THIRTY DAYS before the date of election for a State, he shall be disqualified from contesting or being voted for. 

Sections 107 (1), 147 (4) and 192(3) deal with offices of ministers of the Government of the Federation and Commissioners in a state, respectively. A minister or Commissioner shall be deemed to have “resigned” his membership of the National Assembly or a state House of Assembly upon taking the Oath of office as a minister or Commissioner. 

THE EXTANT LAWS

It is therefore clear, per adventure, that aside the circumscribing and inhibiting factors restricting a public appointee from contesting offices as described in the above sections of the Constitution, section 84 (12) and 13 are unconstitutional, illegal, null, void and of no effect whatsoever in so far as they import other extraneous disqualifying factors not provided for or envisaged by the Constitution itself. The NASS does not have the legislative power to import into the Constitution other additional disqualifying factors.

SECTION 84(12) & (13) ALSO CONTRAVENE SECTIONS 40 AND 42 OF THE CONSTITUTION

Section 40 of the 1999 Constitution grants every Nigerian the right to assemble and associate freely with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests. See MOTORCYCLE TRANSPORT UNION OF NIGERIA & ORS VS. DELTA STATE MOTORCYCLIST ASSOC & ORS (2010) LPELR 4503 (CA); LAFIA LG VS. EXECUTIVE GOVERNOR NASSARAWA STATE & ORS (2012) LPELR 20602 (SC).

In addition to the above, section 42 accords every Nigerian the right to freedom from discrimination. See OKAFOR & ORS VS NTOKA (2017) LPELR – 42794 (CA); NMCN VS ADESINA (2016) LPELR – 40610 (CA) The question is, why will any Nigerian be prevented, disenfranchised or barred from being “a voting delegate or to be voted for at the convention or Congress of any political party for the nomination of candidates for any election”, simply because he is a political appointee, when the Constitution itself (the supreme law) has exhaustively outlined factors that are capable of barring a person from contesting any election?

SECTIONS 84 AND 318 OF THE CONSTITUTION CONSIDERED

Section 66(1) (8) provides for “public service” of the federation, or the “public service of a state”. Do political appointees such as ministers, commissioners and personal aids qualify to be protected by these sections. I believe so.

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Some people have argued that it is only public servants envisaged in section 84 and as defined in section 318 of the Constitution that are covered by the 30 days resignation notice. They pontificate that political Appointees who hold offices at the pleasure of their appointors are not public servants within the meaning and intendment of sections 84 and 318 of the Constitution.

Specifically, they cite the cases of ONI v. FAYEMI & ORS (2019) LPELR-46622(CA);

WILSON V. AG BENDEL STATE & ORS. (1985) LPELR-3496 (SC); PPA V. PDP & ORS (2009) LPELR-4865(CA); SHITTA-BEY V. AG FEDERATION & ANOR (1995) LPELR-3055 (SC); ABUBAKAR V. The EXECUTIVE GOVERNOR, GOMBE STATE & ORS (2002) LPELR-1124 (CA); MILITARY GOVERNOR OF ONDO STATE V. ADEWUNMI (1988) 3 NWLR (PT. 82) 280; OJUKWU V. YAR’ADUA (2008) 4NWLR (Pt. 1078/435; AG BENDEL STATE V. AIDEYAN (1989) 4 NWLR (PT. 118) 646; ADAMU V. TAKORI (2010) ALL FWLR (Pt 540) 1387 (CA).

I earnestly believe the attention of the courts in these cases was NEVER specifically drawn to the real meaning and effect of the phrases “Public Service of the Federation” and “Public Service of a State” as defined in the Constitution. The definition of “Public Service”, of the Federation, says section 318, means the SERVICE of the Federation in “ANY CAPACITY in RESPECT of the GOVERNMENT of the FEDERATION and INCLUDES service as…….”. The definition of “Public Service of the State” means the SERVICE of the STATE “in ANY CAPACITY in respect of the GOVERNMENT of the STATE and INCLUDES service as …..”.

Surely, in both cases, it is clear that the clause service in “ANY CAPACITY” is used in both the Federal and State governments. Can anyone plausably argue that ministers, commissioners and other appointees of Mr president or a Governor of a State who draw their salaries, allowances and other perquisites of office from the Federal or State treasury are not engaged in “ANY CAPACITY IN THE  SERVICE” in respect of the Governments of the Federation and States?  The other offices lined up in this interpretation section of 318 after “IN ANY CAPACITY” are merely in ADDITION to those offices already mentioned, as the section specifically states that the specie of public officers outlined thereunder is merely in addition to those employed in “any capacity” in both the Federal and state Governments.

More significantly, we must look at the definition of “public officer” in part 1 of the 5th schedule of the Constitution. There, a “public officer” is defined as “a person holding any of the offices specified in part II of this schedule. The person holding the said offices specifically include, amongst others, the President; Vice President; Senate President and his Vice; Speaker of the House of Representatives; Governor; Deputy Governor; CJN; Justices of the Supreme Court; Appeal Court; Attorney General of the Federation and of States; Ministers and Commissioners; SGF; Ambassadors; Chairman; Members and Staff of CCB/CCT; of LGCs; Statutory corporations and companies in which the federal or state Governments or LGCs have controlling interest.” 

This category of persons therefore fall within the scope of “public officers” and “public servants”. I humbly submit therefore that political appointees fall within the scope of public servants, such as to enjoy whatever favours are granted to persons within the public service of the Federation or of the State. In any event, why the NASS should be involved in legislating for political parties as to who should be their contestants or voting delegates, thus restricting their constitutionally guaranteed rights. In deepening the plenitude and amplitude of democracy, political parties should be given the freedom and latitude to regulate their activities.

Why should the NASS make a law discriminating against political appointees when they themselves are free to contest, vote and be voted for as delegates at the same congress and conventions? How fair is that; on moral grounds, aside the illegality and unconstitutionality of it as I have copiously pointed out above?

NO DIFFERENCE BETWEEN VOTING AT GENERAL ELECTIONS AND VOTING AT POLITICAL PARTY CONGRESSES OR CONVENTIONS

I have heard the argument that the eligibility to vote or be voted for only affects general elections, and not elections at party congresses or conventions. I humbly disagree. Voting is voting; and election is election, whether at a general election, or at an election to elect candidates of political parties at party conventions or congresses. Both have to do with exercising one’s right to make a choice as between two or more candidates at an election through the ballot, or a show of hands. This is clear from the provisions of sections 82, 83 and 84 of the Electoral Act, 2022 (as amended). As in any general election, election by a political party at its congress or convention is invalid without the involvement of INEC. “Every registered political party shall give INEC 21 days notice of any convention, congress, conference or meeting convened for the purpose of ‘merger’ and electing members of its executive committee, other governing bodies or nominating candidates for any of the elective offices specified in this Act” (section 82(1)). See also sections 82 (2) and 82 (4).

The clincher is found in sections 82 (5), which provides that “failure of a political party to notify the Commission as stated in subsection 1 shall render the convention, congress, conference or meeting invalid”. 

The non-observance of this critical provision was part of the reasons both the Court of Appeal and Supreme Court declared the votes cast at the 2015 APC primaries in Zamfara state “wasted votes”. I personally handled both cases against the APC. The Supreme Court agreed with my invocation of the doctrine of “consequential relief”, which I had commended to it, and ordered that the CANDIDATE of the political party (NOT the POLITICAL PARTY) that had the next highest number of votes and constitutional spread in the local Government Areas of Zamfara State should produce the next Governor. That was how Dr Bello Mohammed Matawalle became Governor of Zamfara State under the platform of the PDP. See APC & ANOR VS. KABIRU MARAFA & 170 ORS (2020) 6 NWLR (Pt 1721) 383; APC & ORS VS KARFI & 2 ORS (2017) LPELR – 47024 (SC).

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This point becomes clearer when one reads section 84 (3) of the Electoral Act, 2020, as amended. It prohibits a political party from imposing nomination qualification or disqualification criteria, measures, or conditions on any aspirant or candidate for any election in its Constitution, guidelines, or rules for nomination of candidates for elections, except as prescribed under section 65, 66, 106, 107, 131, 137, 177 and 187 of the Constitution. Why will the same NASS audaciously ignore section 84 (3) and make section 84 (12) and (13) in the same Act to bar certain persons from contesting in those same elections which it had warned political parties not to go into, when the Constitution itself has not specifically provided for such? Respectfully, the provision of section 84(12) is not only strange, but bizzare. 

We must bring in here the rule of statutory interpretation, to the effect that the provisions of the Constitution are to be read as a whole; and not in parts. Can such critics argue that the same Constitution will take away with the left hand in sections 84 (12) and 318 what it has itself donated in sections 40, 42, 65 (1) and (2), 66 (1), 106, 107 (1), 137 (1) (g), 147 (4), 182 and192 (3), thereof? Can it be argued that the same section 84 which in it sub-section (3) forbade political parties from imposing nomination qualifications or disqualifications criteria, or impose conditions on aspirants or candidates for any election, will turn around in subsections 12 and 13 to outrightly ban such candidates from voting or being voted for, simply because they are political appointees? I think not. See the cases of Nafiu Rabiu v. The State (1980) 8-11 SC-130; Abegunde v. Ondo State House of Assembly & Ors (2015) LPELR-24588 (SC), wherein the Supreme Court emphasized the need to read provisions of the Constitution together as a whole and not in parts.

Some people have cited in aid of their arguments the provisions of section 228(a) of the 1999 Constitution which provides that:

“The NASS may by law provide guidelines and rules to ensure INTERNAL DEMOCRACY within political parties, including making laws for the conduct of party primaries, party congresses and party conventions”.

This section actually encourages INTERNAL DEMOCRACY within political parties, which is designed to open up the political space and give every member a feeling of belonging. It was never designed or intended to restrict such members from voting and being voted for. The section actually frontally defeats section 84 (12) and (13) of the Electoral Act, 2022, as amended, and renders them unconstitutional, null and void. 

THE JUDGMENT OF THE HIGH COURT IN UMUAHIA

It is with the solid background of the law and constitutionalism espoused above that I totally agree with the judgment recently delivered by Honourable Justice Evelyn Anyadike of the Federal High Court, Umuahia Division. She scored the bull’s eye in striking down the offensive subsection 12 of section 84 of the new Electoral Act in Suit No. UM/CS/26/2022: CHIEF NDUKA EDEDE V AG FEDERATION.

Most critics have never even cared to read the full order made by Justice Anyadike, so as to understand its true import and purport. She did not just restrict her order to only political appointees as is erroneously widely believed. She actually extended it to “any political appointee, political or public office holder”, as envisaged (according to these critics) in sections 84 and 318 of the 1999 Constitution. She actually aligned her order with these sections with the intention to deepen, widen and liberalize the political space. She thus held as follows:

“1. I Declare that Section 84(12) of the Electoral Act, 2022, cannot validly and constitutionally limit, remove, abrogate, disenfranchise, disqualify, and oust the constitutional right or eligibility of any political appointee, political or public office holder to vote or be voted for at any Convention or Congress of any political party for the purposes of nomination of such person or candidate for any election, where such person has “resigned, withdrawn or retired” from the said political or public office, at least 30 days before the date of the election”.

2. I Declare that the provisions of Section 84(12) of the Electoral Act, 2022, which limits, removes, abrogates, disenfranchises, disqualifies, and ousts the constitutional right and eligibility of any political appointee, political or public office holder to vote or be voted for at any Convention or Congress of any political party for the purposes of nomination of such person or candidate for any election, where such person has “resigned, withdrawn or retired” from the said political or public office, at least 30 days before the date of the election, is grossly ultra vires and inconsistent with Sections 6(6)(a) & (b), 66(1)(f), 107(1)(f), 137(1)(g) and 182(1)(g) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and therefore unconstitutional, invalid, illegal, null, void and of no effect whatsoever.
3. I hereby nullify and set aside Section 84(12) of the Electoral Act, 2022, for being unconstitutional, invalid, null and void to the extent of its inconsistency with Sections 66(1)(f), 107(1)(f), 137(1)(g) and 182(1)(g) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
4. I hereby order the Defendant (The Attorney General of the Federation) to delete the provisions of Section 84(12) from the Electoral Act, 2022, with immediate effect.”

I respectfully agree with this judgment which remains valid until set aside by a higher appellate court. See the cases of AGBON-OJEME V. SALO-OJEME (2020) LPELR 49688(CA); NKWOKEDI & ORS V. OKUGO & ORS (2002) LPELR-2123(SC); EKPE V. EKURE & ANOR (2014) LPELR-24674(CA); UNITY BANK V. ONUMINYA (2019) LPELR-47507(CA).

THE SUPREMACY OF THE CONSTITUTION

I commend the judgment of Justice Evelyn Anyadike landmark, for protecting the sanctity of the Constitution – the fons et origo; the grundnorm; which I have always described as the Oba, Eze and Emir of our laws. The Constitution constitutes the birth certificate of a nation. It highlights a Nation’s sovereignty and dignity.

The supremacy of the Constitution as against all other laws and Acts is provided for in section 1(1) and 1(3). By virtue of section 1(3) thereof, 

“if any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other to the extent of the inconsistency be void”. 

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This supremacy has been severally emphasised in a plethora of cases. In UGBOJI V. STATE (2017) LPELR-43427(SC), the Nigerian apex court, per Amiru Sanusi, JSC (Pp. 23-23, paras B-D), held thus:

“My lords, permit me to reiterate that the Constitution of the Federal Republic of Nigeria, 1999, as amended, had by Section One, made provision to emphasise or assert its supremacy. By that provision, any law/statute or provisions thereof that runs riot and violent to the provisions of the Constitution or is in conflict with the constitutional provision is null and void to the extent of inconsistency. See A.G. ONDO STATE V. A.G. OF THE FEDERATION AND ORS (2002) 9 NWLR (Pt 772) 226.”

Consequently, where the provisions of the Constitution conflict with the provisions of Acts or Bills passed by the National Assembly and State Houses of Assembly, the former prevail. See also the cases of OLAGBENRO & ORS V. OLAYIWOLA & ORS (2014) LPELR-22597(CA); A.G. ABIA STATE V. A.G. FEDERATION (2006) 16 NWLR (Pt. 1005) page 265 at pages 290 and 291; AINABEBHOLO V. EDO STATE UNIVERSITY WORKERS FARMERS MULTI-PURPOSE CO-OPERATIVE SOCIETY LTD. & ANR. (2007) 2 NWLR (Part 1017) page 33 at page 50, paragraph G and P, 151 paragraphs C-D.

Indeed, the apex court has held in ISHOLA V. AJIBOYE (1994) 6 NWLR (Pt 352) 506, that the Constitution is not only supreme when another law is inconsistent with it, but also when another law seeks to compete with it in an area already covered by the Constitution. This is called the doctrine of covering the field. See AG, ONDO V. AG, FEDERATION (2002) 9 NWLR (Pt 772) 222; AG, OGUN STATE V. AG, FEDERATION (1982) 1-2 SC 7; SARAKI V. FRN (2016) LPELR-40013(SC); INEC V. BALARABE MUSA (2003) 3 NWLR (Pt 806) 72; NWANGWU V. UKACHUKWU & ANOR (2000) LPELR-6913(CA).

Consequently, it is clear that section 84(12) is loudly unconstitutional, null, void, of no effect whatsoever and was dead on arrival. As dead as dodo! This is because the Electoral Act (Amendment) Act, 2022, in section 84(12) imposed fresh hurdles on the part of political appointees to contest election during their party Congresses and conventions. The section is a direct frontal attack on and confrontation with the sanctity and supremacy of the Constitution. In that respect therefore, Justice Anyadike was correct to have struck down the section.

It must also be emphasized here that the Constitution reserves the right to expressly make provisions, and such provisions are usually interpreted literally.

An Act, Bill or even courts, cannot read into, or add words to the Constitution, nor subtract from it. As a result, the golden latin maxim of EXPRESSIO UNIUS EST EXCLUSION ALTERIUS – the explicit mention of one thing is the exclusion of another – applies to the Constitution. The Constitution has expressly provided for factors that disqualify aspirants who seek to contest elections in Nigeria. See PORTS AND CARGO HANDLINGS SERVICES CO LTD & ORS V. MIGFO (NIG) LTD & ANOR (2012) LPELR-9725(SC); EHUWA V. ONDO STATE INDEPENDENT ELECTORAL COMMISSION & ORS (2006) LPELR-1056(SC); and, WEST AFRICAN UTILITIES METERING & SERVICES LTD V. AKWA IBOM PROPERTY AND INVESTMENTS CO LTD (2019) LPELR-47089(CA). 

The NASS has no vires to add to, or subtract from same. Consequently, section 84(12) of the amended Electoral Act is patently null and void, unconstitutional, unlawful, and of no effect whatsoever. I thank Justice Evelyn Anyadike for giving it a well deserved burial through her refreshing judgment.

THE POLITICAL SPECTRE LOOMING IN THE ENTIRE AMENDED CLAUSE

NASS V. BUHARI

I have, as ever always, in this outing, tried to avoid discussing the politics of the amendment brouhaha and concentrate only on my dissertation of the law on the subject matter. Otherwise, if we were to look at the politics of it, many questions immediately spring up for answers. For example, when did we ever witness the 9th NASS oppose President Buhari’s budgets, bills, letters, actions or requests? When did the NASS ever challenge or overrule Buhari’s nepotic, prebendalistic, tribalistic, cronyistic, religious and sectionalistic appointments in the last 7 years? I cannot remember. Or, can you? When did the “Mr-take-a-bow” Senate (my pet name for the present red chamber, for never ever properly screening public appointees (always telling them to take a bow and go); and for always kowtowing to Mr President’s serial requests for humongous loans that haemorage Nigeria ever oppose Buhari? We are talking about loans that await us like booby traps and sentinels at the door steps of generations yet unborn. I cannot remember when the NASS ever opposed Buhari. Or, can you? 

THE ROLE OF THE ATTORNEY-GENERAL IN THIS SUIT

When did the Attorney General of the Federation, Abubakar Malami, ever refuse to appeal a judgement and spontaneously act the judgment with such automatic alacrity, in obeying Justice Anyadike’s order of court, as we just witnessed? Remember how court judgments and orders were serially disobeyed in the El Zakzaki and Ibrahim Dasuki cases? Would Malami have taken the same steps if the judgment had gone against him and the government? I think not. 

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THE ISSUE OF JOINDER

Why were the NASS (which initially passed the law), and INEC the implementor of  the law not joined in the suit, at least, as INTERESTED and PROPER parties, even if not as NECESSARY parties? See GREEN VS GREEN (1987) NWLR (PT 61) 481. 

VOIDANCE OR DELETION?

Why would the Attorney-General seek to delete the offensive section 84 (12) as ordered by the Judge? A court’s duty stops at voiding an Act or law; but not to delete or repeal it. That is a job for the legislature or the Law Revision Commission. When did the Attorney-General (a top player in the Executive) possess statutory powers to delete Acts of the Legislature when laws are normally gazetted by the Legislature after the President and Governor had respectively signed bills into law? One should have thought that merely voiding the Act was sufficient until future amendment of the Act and consequential deletion of the offensive section, based on the court’s judgment in striking it down.

VENUE OF THE SUIT

By the way, why was the case filed at FHC in far away Umuahia, Abia State, when the Attorney-General works and resides in Abuja; and when the NASS and INEC (interested parties) are also located in Abuja? Was it an act of forum-shopping and Judge-shopping? I do not know. Or do you? 

LOCUS STANDI

On locus standi, I do not agree with those who questioned the locus standi of Chief Nduka Edede, the plaintiff. Every Nigerian has the locus standi to question the validity of any statute he believes is unconstitutional.

In the case of AKINPELU & 20 ORS. V. AG OYO STATE (1985) 5 NCLR 557, it was held as follows:

“In my view, the question of locus standi vis-à-vis our present Constitution, cannot be adequately thrashed out without considering the effect of Section 4(8) of the Constitution…. In other words, the subsection places on the court a supervisory jurisdiction over the legislative powers by the National Assembly and a House of Assembly. As any citizen is affected by a new law enacted by the legislature, it seems to me therefore that such citizens should be accorded the right to challenge the constitutionality of such enactment. In the case in hand, I accept his evidence adduced by the plaintiffs that they reside in Lagelu Local Government and that they pay rates to Lagelu Local Government Council”.

In line with this trend of thought, the court in EJEH V. AG, IMO STATE (1985) 8 NCLR 390, relied on the causa célèbre of ABRAHAM ADESANYA V. PRESIDENT OF THE FEDERATION (1981) 2 NCLR 358, and laid down three principles thus:

“ (1) It behoves any person who is convinced that there is an infraction of the provisions of the Constitution to be able to go to court and ask for appropriate relief if relief is required.

(2) A defendant should be wrong in challenging the locus standi or the capacity of a plaintiff to sue, when the cause of action is intended to keep the law and the Constitution of the country serene and inviolate.

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(3) Any person whose interest, obligation or rights are regulated by any law of general application is an interested party in a cause, matter or suit involving the determination of the validity or constitutionality of such law, notwithstanding that such a person is not made a party in the proceedings”.

In the said apex case of ADESANYA (supra), celeral Justice Kayode Eso, JSC (of blessed memory) had held, most lucidly that:

“It has to be accepted that our Constitution has undisguisedly put the Judiciary in a pre-eminent position, a position unknown to any other Constitution under the Common Law, where the Judiciary has to see to the correct exercise of the legislative powers by the National Assembly”.           

There are too many questions begging for answers in the way and manner the amendment was handled. 

WAY OUT OF THE APPARENT CONUNDRUM

To avoid the present confusion and apparent bad blood generated by the protagonists and antagonists of section 84(12), the following steps could be taken immediately:

Firstly, the NASS should, in its ongoing Constitutional amendment exercise, amend section 66(1)(f) of the Constitution, to specifically include the following category of persons: “all political appointees by whatever name called” ,as persons who must give 30 days notice to be able to contest election.

Secondly, the NASS itself, political parties, politicians, lawyers, NGOs, members of the Civil Society and all those who are aggrieved by Justice Evelyn Anyadike’s judgment, should apply to the Court of Appeal for joinder in the suit as interested parties to force an appeal, or prosecute any appeal arising therefrom. This is legally permissible under the Constitution (section 243 of the party sought to be joined can show that he ought to have been joined in the suit. Court of Appeal Act and Rules. See the cases of MUDASIRU & ORS. V. ONYEARU & ORS. (2013) LPELR- 20354 (CA); KATAMI V. KATAMI (2018) LPELR- 46417 (CA); MOUKARI & ANOR V. WILLIAM & ORS (2021) LPELR-54860 (CA); IN: RE ELEMA (2018) LPELR- 46233 (CA); WAZIRI V. GUMEL (2012) LPELR-2843 (SC). I believe such an application will be granted without much ado. Thirdly, where the Attorney-General willfully refuses to appeal the judgment, such aggrieved persons can challenge the deletion of section 84(12) in a fresh suit. Let us develop our jurisprudence. Let us expand new vistas and expound the frontiers of the law through judicial decisions. Let us situate our arguments within the proper legal regime and constitutional organogram of our laws, devoid of political sentiments, emotions and morality. There is a wide gulf between the “lex lata” (the law as it is) and the “delege ferenda” (the law as we would want it to be). I have observed that many analysts usually anchor their arguments on morals and ethics. Jurisprudence and law are not morality. Such moralists are advised to seek refuge at the pulpits in our churches, monasteries; or mosques; or even shrines. But, certainly not hard-cold law. 

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