Lawyers, CSOs criticise Malami, judge over Electoral Act amended judgement

Criticisms continue to trail Friday’s controversial judgement of the Federal High Court in Umuahia, Abia State, striking down section 84(12) of the newly amended Electoral Act.

Lawyers and members of the civil society organisations (CSOs) have criticised the judge, Evelyn Anyadike, and the Attorney-General of the Federation, Abubakar Malami, over the decision toppling one of the most significant innovations in the newly amended law.

The section prohibits political appointees at any level from either voting or vying at their political parties’ primary elections.

“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,” it reads.

It is a statutory innovation aimed at checking abuse of office by government appointees during elections or the selection of candidates at party primaries.

In Nigeria, political appointees are wont to deploy the paraphernalia of office to gain an advantage over other aspirants. Some governors also indiscriminately raise the number of their appointees close to the time of their parties’ primary elections to expand their army of loyal delegates at such party elections.

Many members of President Muhammadu Buhari’s cabinet, who are nursing political ambitions ahead of the 2023 general elections, are against the provision.

The politicians, including the Attorney-General of the Federation, Abubakar Malami, who is believed to be seeking to contest the governorship election in his home state, Kebbi State, in 2023, were able to get the President to write the National Assembly to delete the section 84(12) from the Electoral Act.

But the Senate rejected the President’s request earlier this month, and the battle immediately shifted to court.

Nduka Edede, a lawyer and top member of the Action Alliance (AA), one of Nigeria’s fringe political parties, filed a suit at the Federal High Court in Umuahia to challenge the constitutionality of the said section 84(12) of the Electoral Act.

He selectively picked the AGF, a known antagonist of the provision, as the only defendant, leaving out other important bodies such as the National Assembly and the Independent National Electoral Commission (INEC) with high stakes in the making and operation of the Electoral Act.

In her judgement on Friday, Mrs Anyadike agreed with the plaintiff that the provision violated the constitutional rights of Nigerian citizens.

She noted that the Nigerian constitution already has a provision that mandates appointees of government seeking to contest elections to resign at least 30 days to the date of the election.

Therefore, the judge ruled, any other law mandating such appointees to resign or leave the office at any time before that “is unconstitutional, invalid, illegal null and void, to the extent of its inconsistency to the clear provisions of the Constitution.”

Hours after the court delivered the judgement, Mr Malami, reputed for shocking justification of disobedience to court orders, enthusiastically announced his plan to quickly delete section 84(12) of the Electoral Act in compliance with Friday’s verdict. The move foreclosed the possibility of an appeal being filed against the judgement.

Vested interests, hatchet job

Lawyers and pro-democracy advocates have criticised the legal and social basis of the judgement, which they say further erodes public confidence in the Nigerian judiciary.

To some, the circumstances surrounding the suit, including failing to join critical stakeholders as defendants, the unusual speed with which the suit was heard and judgement delivered without the knowledge of the public, and Mr Malami’s strange enthusiasm to enforce the verdict, gave the whole legal process up as a hatchet job.

Samson Itodo of Yiaga Africa, a pro-democracy organisation, told PREMIUM TIMES “there were vested interests that manipulated the judge” to reach the decision.

Mr Itodo who championed the Not Too Young To Run bill, which culminated in removing the legal obstacles to youth’s participation in Nigerian politics, described the decision as “an aberration”.

“It is just sad that the judiciary is being ridiculed in this manner,” Mr Itodo pointed to subsisting order of another federal court in Abuja, which barred Mr Buhari, the Attorney-General and the National Assembly from tampering with the newly amended Electoral Act.

He said the court lacked the powers to order the AGF to delete an Act of parliament, adding that such a verdict “undermines Nigeria’s democracy.”

He advised the parliament to appeal against the judgment, drawing the attention of the National Judicial Council (NJC), a disciplinary institution of the judiciary, to Mrs Anyadike’s ruling.

Also, a development expert and political commentator, Jide Ojo, agreed with Mr Itodo that “the case looks like a hatchet job, hurriedly packaged” without joining the relevant government agencies to the suit.

Mr Ojo, who commended the innovative provisions of the Electoral Act, said “political appointees should not be allowed to use state resources to view for tickets of their respective parties.”

Suspicious of Mr Malami’s swift plan to implement the latest court ruling, Mr Ojo asked why the AGF has not been “swift in carrying out previous judgements of the court.”

Another activist, Hamzat Lawal, in an interview with this reporter said “the suit served the interests of a few,” noting that that is why it has become a “scandal.”

He urged the AGF to tarry a while to enable the appellate courts to determine the propriety of the judgement or otherwise.

Mr Lawal accused the judiciary and the executive arms of government of “collusion to subvert the rule of law.”

‘Judiciary, lawyers destroying Nigeria’

Some top lawyers have also voiced their concerns about Mrs Anyadike’s verdict on the nullification of section 84(12) of the Electoral Act.

Femi Falana and Ebun-Olu Adegboruwa, both Senior Advocates of Nigeria, in their separate interventions, said the judge was wrong to have reached such a decision.

Mr Falana, in a statement, said the judge fell into “a great error” by anchoring her judgement on a faulty legal premise.

The senior lawyer pointed out that section 318 of the Constitution relied on by the judge does not have political appointees as a category of persons that must resign within 30 days to contest an election. He said persons referred to in section 318 of the Constitution are those employed in the public service, which, according to him, excludes political appointees.

“To that extent, section 84 (12) of the Electoral Act was annulled on a very faulty ground,” he said.

Referencing the case of Dada versus Adeyeye (2005), the lawyer noted had Mrs Anyadike’s attention been drawn to the decisions of the appellate courts, she would have dismissed the matter.

“The appellate courts have held that political appointees or political office holders are not public servants as provided for under the Constitution,” Mr Falana said.

Similarly, Mr Adegboruwa in his official Facebook page wondered how the judge could “nullify an Act (of the National Assembly) without joining the institution that made the Act, so that they can be heard concerning what they did?”

Addressing Mr Malami’s swift reaction to the judgement, Mr Adegboruwa said, “When a defendant (Federal Government) rejoices over a judgment delivered against it as a party, then you know there is problem in Nigeria.”

The Lagos-based lawyer advised the National Assembly, political parties and non-governmental organisations to appeal against the judgment as interested parties, querying “Why do you want to hold on to your office as a political appointee and at the same time be a candidate in an election?”

However, another Senior Advocate of Nigeria, Mike Ozekhome, lauded the court’s decision, describing it as “courageous.”

Mr Ozekhome, a rights activist and one of Mr Buhari’s fiercest critics, said he was agreeing with the President on the controversial clause of the amended Electoral Act.

Speaking on Channels Television’s evening programme on Friday, ‘Politics Today,’ Mr Ozekhome argued that it is the constitutional responsibility of the court to “strike down” any Act of parliament that is inconsistent with the Nigerian constitution.

“The constitution makes it clear in section 1 (1) that this constitution shall be supreme, and if any other law is contrary to the provisions of this constitution, that other law shall be null and void to the extent of the inconsistency.”

“So, it is the duty of the judiciary like the Federal High Court in Umuahia, to strike down any law or act of the National Assembly that is unconstitutional,” the lawyer explained.

Disagreeing with Messrs Falana and Adegboruwa’s perspectives, Mr Ozekhome said, “The Parliament, while enacting the Electoral amendment Act, was acting in ultra vires when it said political appointees cannot vote or be voted for during party primaries.”

He contended that the National Assembly cannot legislate on an issue that had been dealt with by the constitution, adding the constitution is “supreme” to any other legislation.