Civil Servants Are Constitutionally Eligible To Participate In Politics — Falana SAN

NIGERIAN workers are constitutionally-free to participate in politics, lawyer, Mr Femi Falana has said.

He was responding to the warning from the central government to civil servants to stay off politics.

The Senior Advocate of Nigeria (SAN) relied on the position of the Supreme Court, which tagged the keep-off order hare-brained.

Folashade Yemi-Esan, Nigeria’s Head of Service, in a memo dated May 5, 2022, ordered civil servants to abide by the provisions of the Public Service Rules (PSR) (2008 edition) on partisan politics.

She said her office had been inundated with requests for clarification on the apex court judgement.

She reached her stay-off conclusion on the strength of a legal opinion issued by Abubakar Malami, Nigeria’s Attorney-General of the Federation. Falana, however, faulted the conclusion and by extension the premise (Malami’s opinion).

In a lengthy op-ed, Falana noted, “Like other citizens, workers are equally entitled, by virtue of section 39 of the Constitution, to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference.

“In Inspector-General of Police v All Nigeria Peoples Party (2008) 12(WRN 65), the Court of Appeal annulled the issuance of police permit for rallies and other public meetings on the grounds that it was a breach of the fundamental rights of citizens to freedom of expression and association guaranteed by sections 39 and 40 of the Constitution.

“In line with the judgment, Section 83 of the Police Establishment Act 2020 has imposed a duty on the police to provide adequate security for participants in peaceful rallies and public meetings.”

He added, “In addition to constitutional provisions, the Government of Nigeria has ratified the United Nations Universal Declaration of Human Rights of 1948 International Covenant on Economic, Social and Cultural Rights, International Covenant on Civil and Political Rights (ICCPR)5 both of 1966 as well the African Charter on Human and Peoples’ Rights (ACHPR) 1981 which guarantee freedom of association and freedom of expression.

“Indeed, the right of workers to associate and organise is enshrined in the Freedom of Association and Protection of the Right to Organise Convention 1948 (No. 87)6 and the Right to Organise and Collective Bargaining Convention 1949 (No. 98) of the International Labour Organization (ILO). Section 254C(2) of the Constitution has conferred exclusive jurisdiction on the National Industrial Court to enforce provisions of all ILO Conventions that have been ratified by Nigeria.”

On the supporting precedent provided by the apex court, Falana stated, “In the case of Independent National Electoral Commission v Balarabe Musa & Ors (2003) 10 WRN 1 the Supreme Court faulted the civil service rules which restrict the participation of civil servants and other public servants in the politics of the county.

“In the leading judgment of the apex court, the Honourable Justice Ayoola JSC held that,

“There is nothing reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health in prohibiting a member of the public service or civil service … from eligibility to be registered as a member of a political party. The submission that the restriction is a valid derogation from section 40 by virtue of section 45 (1)(a) of the Constitution was erroneous.”

In his concurring judgment, Mr Justice Uwais, the then Chief Justice of Nigeria said that “The provisions of section 40 of the 1999 Constitution are clear. Their import is to allow ‘every person,’ including public office holders and civil servants, the freedom to assemble freely and associate with other persons to form or belong to any political party, or trade union or any other association for the protection of his interests.

“The section has made no exception and there is no proviso therein limiting its application to civil servants or public officers.

“Even though the civil service rules were not set aside as its legal validity was not challenged in the case, it has been held by the Court in several cases that sections 7, 66 (1); 107 (1) (f); 137 (1) (g); 142(2); 182 and 187(2) of the 1999 Constitution permit civil servants and other public officers who wish to contest elections to resign their positions 30 days to the date of elections for all the various positions of the president and vice president, governors and deputy governors, federal and state legislators as well as chairmen and councillors. See FAYEMI v. ONI & ORS (2019) LPELR-46623(CA); PPA v. PDP & ORS (2009) LPELR-4865;(CA); ADAMU V. TAKORI (2010) ALL FWLR (P. 540) 1387 (C.A)

“Notwithstanding that the Constitution is silent on the right of workers in the private sector to participate in politics it is submitted that they are equally entitled to contest elections without any legal entanglement.

“However, like civil servants, private sector workers who wish to contest elections are advised, subject to agreements reached with their employers, and/or the applicable conditions of service, to resign their positions or ask for leave of absence.

“It is, therefore, incumbent on workers in the private and public sectors to stop agonising about the problems confronting the country.

“This is the time to get organised with other pro-labour, radical and human rights forces and insist that a new Nigeria is possible,” he concluded.

Malami, in his legal opinion, claimed, “Neither the 1999 Constitution nor the Supreme Court has authorized civil servants to engage in partisan politics. “The provisions of Rules 030422 and 030423 of the Public Service Rules (2008 Edition) were not nullified by the Supreme Court, hence, they remain in force and binding on all civil servants seeking to participate in nomination exercises or party primaries.”