Electoral Act Provision A Breach Of Constitution — Agbakoba SAN

A former Nigerian Bar Association (NBA) president Dr Olisa Agbakoba (SAN) yesterday said the Electoral Act provision, which requires political appointees to resign before participating in a party primary, is unconstitutional.

Section 84 of the Electoral Act, which the President advised the National Assembly to re-amend, provides 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’.

The section appears to be at variance with the Constitutional provisions in sections 66, 107, 137 and 182.

The sections provide that those in public service who wish to contest for political offices must resign 30 days before the date of the election.

Agbakoba believes the Electoral Act violates the rights of the appointees.

He said: “I think Section 84 restrictions on political appointees is an infraction of their guaranteed rights.

“The constitution makes clear it is invalid to create restrictions that interfere with the right of anyone, including political appointees, from participating in the political process.”

Another SAN, Mr. Kunle Adegoke, also argued that Section 84(10) of the Electoral Act, 2022 is in conflict with the Constitution but only as regards the disqualification of a political appointee from participating in the primary election of a political party whether as a delegate or as an aspirant.

Adegoke said: “I believe that Section 84(10) of the Electoral Act, 2022 is in conflict with the Constitution not as regards the need for a public officer to have resigned 30 days to the election but as regards the disqualification of a political appointee from participating in the primary election of a political party whether as a delegate or as an aspirant.

“The provision of Section 84(10) of the Electoral Act is an imposition of an additional qualification for a political appointee to be able to contest an election or exercise his franchise in nominating a candidate of a political party in which he may be a member. Whereas the Constitution is comprehensive as regards the qualification to be able to contest an election in Nigeria as stated in Sections 66, 107, 137 and 182 thereof, it is forbidden for the National Assembly or any other body to impose additional requirement. This is the position of the law as stated by the Supreme Court in several decisions.

“To that extent, to forbid a political appointee from participating in the primary election of a political party notwithstanding that he is a member of that party, is an arberation not allowed by the Constitution.

“The provisions of the Constitution requiring a public officer to resign 30 days before an election only stipulated 30 days before an election. Whereas, the requirement of S.84(10) forbidding a public servant from participating in a primary election as an aspirant will violate the Constitution which only requires such a public officer to have resigned 30 days to the election. We must realise that the new Electoral Act requires a party to have submitted its candidates 180 days to the election.

“A political appointee is someone in public service according to S. 318 of the Constitution and is only required to resign at least 30 days before the election as provided for in Sections 66, 107, 137 and 182 of the Constitution. It is, therefore, our conclusion that Section 84(10) of the Electoral Act, 2022 is an infraction of the Constitution in so far as it seeks to impose additional requirement on a political appointee before he can participate in a primary election of a party either as a delegate or as an aspirant.”

However, yet another SAN, Ahmed Raji, does not think there is a conflict between the Electoral Act and the Constitution.

Nevertheless, he noted that the section does not clearly define who an appointee is.

Raji said: “The first major challenge is that the Act does not define who a political appointee is. Is a Vice-Chancellor of a government university one? What of the chief medical directors of our teaching hospitals? How about career ambassadors?

“Subject to necessary clarification, the Act does not give a time frame. It does mean that an affected person must ensure he has properly disengaged before the date of the primary.

“And I do not see anything unconstitutional in the provision which is apt to have a salutary effect on the system. It does not deny them the right to participate.

“It only prescribes a condition which appears reasonable and justifiable.”