Nigeria: Buhari, Malami Sue National Assembly Over Section 84(12) of Electoral Act

Section 84 (12) of the Electoral Act has been a subject of intense litigation and political debate in Nigeria since President Buhari signed the amended Electoral Act 2022 into law in February this year.

President Muhammadu Buhari and the Attorney-General of the Federation and Minister of Justice, Abubakar Malami, have filed a suit at the Supreme Court, seeking an interpretation of the controversial clause in the Electoral Amendment Act 2022.

In the suit filed on April 29, Messrs Buhari and Malami who are the plaintiffs listed the National Assembly as the sole defendant, Sahara Reporters, reported.

Section 84 (12) has been a subject of intense litigation and political debate in Nigeria since President Buhari signed the amended Electoral Act 2022 into law in February this year.

Shortly after signing it into law, Mr Buhari had urged the parliament to delete the controversial clause in the Electoral Act, but the National Assembly declined the president’s request.

According to Section 84 (12) of the legislation, “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.”

This suit comes weeks after the Federal High Court in Umuahia, Abia State, struck out Section 84 (12) on the ground that it was in conflict with some sections of the Nigerian constitution.

Mr Malami who was among a pack of ministers with political ambition ahead of 2023, had hurriedly announced his plan to immediately enforce the judgement by deleting the provision from the Electoral Act.

Mr Malami was accused of pursuing the deletion of the legal provision because of his interest, to ensure that he remained as the AGF as long as possible while campaigning to become Kebbi State governor.

But the Court of Appeal in Abuja in a rather confusing judgement set aside the Federal High Court judgement while also agreeing with the trial court that the new provision is unconstitutional.

Malami abandons political ambition despite the pendency of suit

Two weeks after he and Mr Buhari jointly filed the suit challenging the controversial 84 (12) of the Electoral Act at the Supreme Court, Mr Malami pulled out of the Kebbi State governorship race.

This was after Mr Buhari directed political appointees who have declared intentions to vie for elective positions to resign.

On Saturday, Mr Malami’s spokesperson, Umar Gwandu disclosed that the AGF was no longer contesting for the Kebbi State governorship seat.

In the statement announcing Mr Malami’s withdrawal, Mr Gwandu based the AGF’s decision as a “demonstration of altruism and patriotism” at a time “shrouded with confusing and competing stimulus.”

The president’s directive to his appointees last week to resign on or before May 16 (Monday), forced the minister of labour and employment, Chris Ngige, to shelve his President’s aspiration.

But the Ministers of Niger Delta; Godswill Akpabio, Science and Technology; Ogbonnaya Onu, resigned from office in the wake of Mr Buhari’s directives.

Meanwhile, the governor of the Central Bank of Nigeria, Godwin Emiefele, filed a suit seeking to remain in office while pursuing his presidential ambition.

In the suit pending at the Federal High Court in Abuja, Mr Emefiele through his lawyer, Mike Ozekhome, a Senior Advocate of Nigeria (SAN), urged the court to restrain the Independent National Electoral Commission INEC and the AGF from disqualifying him from participating in the presidential primaries scheduled for June this year.

Plaintiffs’ prayers

In the suit marked SC/CV/504/2022 and filed on April 29, 2022, Messrs Buhari and Malami are seeking an order of the apex court to strike out the section of the Electoral Act, which they argue was inconsistent with the nation’s constitution.

According to the court document published by Sahara Reporters, the plaintiffs contend that the Section 84 (12) of the Electoral (Amendment) Act, 2022 is inconsistent with the provisions of sections 42, 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the Constitution of Federal Republic of Nigeria, 1999, (as amended), as well Article 2 of the African Charter on Human and People and Peoples Rights.

The plaintiffs also contended that the Nigerian constitution already provides qualification and disqualification for the offices of the President and Vice President, Governor and Deputy Governor, Senate and House of Representatives, House of Assembly, Ministers, Commissioners and Special Advisers.

They urged the Supreme Court to make: “A declaration that the joint and or combined reading of the section 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the constitution of the Federal Republic of Nigeria, 1999, (as amended), the provision of Section 84 (12) of the Electoral Act, 2022 which also ignores Section 84(3) of the same Act, is an additional qualifying and/or disqualifying factors for the National Assembly, House of Assembly, Gubernatorial and Presidential elections as enshrined in the said constitution, hence unconstitutional, unlawful, null and void.

“A DECLARATION that having regard to the clear provision of section 1(3) of the constitution of the Federal Republic of Nigeria, 1999, as amended, read together with section 4 of the same Constitution, the legislative powers vested in the Defendants do not permit or empower it to make any other law prescribing additional qualifying/disqualifying grounds for election to the National Assembly, House of Assembly, Gubernatorial and Presidential election outside the express constitutional qualification and disqualification provisions as already provided in each or all of sections 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the 1999 constitution of the Federal Republic of Nigeria (as amended), and without amendment to any of those sections is for reason of inconsistency, unconstitutional and therefore null and void.

“A DECLARATION that section 84(12) of the Electoral Act, 2022 disqualifying political appointees from being voting delegates or be voted for at a convention or Congress of any political party for the purpose of the nomination of candidates for any election is discriminatory, inconsistent and in violent breach of the provision of each of the Sections, 42, 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the Constitution of Federal Republic of Nigeria, 1999, (as amended), as well Article 2 of the African Charter on Human and People and Peoples Rights and same is null and void by reason of its inconsistency.

“A DECLARATION that by the introduction of the provision of Section 84 (12) into the Electoral Act, 2022, but in disregard of Section 84(3) of the same Act, the Defendant has acted ultra vires the legislative powers vested in it under the provision of section 4 of the constitution of the Federal Republic of Nigeria, 1999 (as amended) and/or in violation or breach of the provisions of Sections 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196, thereby rendering Section 84(12) of the Electoral Act, 2022 unconditional, null and void.

“AN ORDER nullifying the provision of Section 84 (12) of the Electoral Act, 2022 by application of the blue pencil rule, for being unconstitutional, illegal, null and void and having been made in excess of the legislative powers of the 1st Defendant as enshrined in section 4 of the constitution (as amended).

“SUCH FURTHER OR OTHER ORDERS as this Honorable Court may deem fit and just to make in the circumstances of this suit.”

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