By SOLA EBISENI

WHEN in December last year, the President withheld his assent to the Bill amending the Electoral Act in his opposition to clause 84 (2) wherein the National Assembly sought by legislation  that only by  direct primary shall any political party determine its candidate for election, we queued behind him in a piece titled “Much Ado About Primaries”.

So, published on December 29, 2021 that “political parties should be allowed to freely exercise the right of choice in deciding which of direct or indirect primary to adopt in the conduct of their primary elections as their respective realities may permit”.

The NASS members invariably surrendered and painfully deleted that most undemocratic section, not because of any altruistic consideration in so doing but only that it was impossible for them to muster the required two-thirds majority of members to override the President’s vote.

Having successfully set the public against the President for his veto and knowing that the obstinacy which is not strange to the President would eventually kill the bill, the National Assembly members acted on the side of caution and deleted the obnoxious clause.

In the article under reference we had admonished that “rather than seek solidarity from the hapless masses and the unsuspecting members of the civil society, let the NASS members and their cohorts in the Executive arm brace up to the games enacted by them”, insisting that “in any case, those who control the party structures will continue to be in charge of whichever internal procedures may be adopted”, especially in Nigeria where no party has any membership register properly so called.

 We cited the APC direct primary in Anambra State where the votes recorded were more than the total votes scored later in the general election and Andy Uba who controlled the party structure scored far more than he did in the general election which put him in a miserable third position suffering double tragedy invariably when the Court, even after the election, still voided his candidature, thus rendering his participation in the election ineffectual.

We also alluded to the case of Governor Akinwunmi Ambode of Lagos who dared the Lion of Bourdillon and proprietor  of the party at least in Lagos to a direct primary which proved a no-contest as he was booted him out  of office, notwithstanding any gubernatorial grandstanding.

We hear that Governor Babajide Sanwo-Olu is also not too sure if any of his own appointees is not being preferred against his own second term as it was between him and Ambode. Remember Sanwo was an  appointee of Ambode not as a member of cabinet but on the lower cadre as  Managing Director/CEO of the Lagos State Development and Property Corporation, LSDPC.

As envisaged, the possible mischief the National Assembly sought to cure by insisting on direct primary came to naught during the Osun gubernatorial primary where Governor Oyetola, now in control of the APC structure, proved too hot for Aregbesola, Minister of Interior, to handle in the so-called direct primary election.

With the victory scored by him  in boxing the NASS to a corner and making the members back down on Direct primary, willy nilly, it was strange that the President did not see the greater evil in Section 84 (12) to have included as one of the reasons for withholding his assent ab initio.

The provision is the greatest act of castration of a section of the political class with the attendant result of intermittent disruption of the polity and making participation in the Executive arm of government most unattractive. According to Section 84 (12): “No political appointee at any level shall be 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”.

The consequences of an infraction of the section is set out in the following sub section 84 (13) thus:  “Where a political party fails to comply with the provision of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue.”

Again, many knowledgeable Nigerians have taken over every available media space in the defence of these mischievous provisions. Many of our colleagues, particularly in the civil society, who see nothing good in any politician have curiously hailed the provisions as providing level play ground for every participant at the parties Congresses and conventions.

They fail to realise that the clear intention of members  of the National Assembly is either to reduce competition with them or outright monopoly of the internal elections by ensuring that political appointees would find it hard to contest. More often than not we delude ourselves that members  of either the legislature or  the executive or the political class generally are most concerned about the people in the electoral process.

Granted the fact that everyone should strive to ensure that the votes are counted and do really count in a democracy, underlying struggles amongst the players in the struggle for dominance within the political parties is a game of the survival of the fittest.   The crisis is rooted in the Constitution which inexplicably gives pride of place and monopoly to political parties in the political architecture of the country.

It is all part of the cries for the restructuring of the political so that the flexibility and pluralism associated with federalism will find expression in the grundnorm.  It has been argued that the 1999 Constitution of Nigeria is perhaps the most detailed and voluminous in the world, yet it has not engendered stability in the polity and absolutely incomparably in terms of orderly governance with countries who rule by conventions. 

Section 221-229  with several subsections of the Constitution (as amended) provides for political parties. The pride of place enjoyed  by the political party is Section 221 which provides that: “No association, other than a political party, shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election”.

Sections 222- 223 not only outlaw any other association from functioning as a political party, its constitution, names and  of its national officers who must be drawn from two-thirds of the states of the federation must be registered with the INEC and the Headquarters compulsorily at Abuja.

 The Constitution makes provisions for what the constitution or rules of the party must contain while  Section 228 gives the National Assembly  powers to provide for guidelines and rules to ensure internal democracy within political parties, including making laws for the conduct of party primaries, party congresses and party conventions; and the conferment on the Independent National Electoral Commission of powers as may appear to the National Assembly to be necessary or desirable for the purpose of enabling the Commission more effectively to ensure that political parties observe the practices of internal democracy, including the fair and transparent conduct of party primaries, party congresses and party conventions.

Of course, the constraints of time and space will not allow for the restatement of the unfettered powers of the National Assembly on political parties; but suffice it to say that the Federal Legislature has overtime taken maximum advantage of these powers in the unending contest with the members of the Executive arm for the control of the political parties.

In the result, political parties in Nigeria are so regimented that none of them has independent existence. Let it be said very clearly and abundantly that members of the legislature have no greater entitlement to the fortunes of a political party than any of its other members including members of the Executive arm.

It is not also true that members of the executive arm wields greater influence than of the legislature. At the state level, most of which can hardly pay workers salaries, how many of the state cabinet members, including deputy governors, have influence compared with members of the House of Representatives and the senators.

By law and the  constitution of every political party, all persons holding elective positions, local government chairmen, states  and National Assembly members, Governors, their Deputies, the President and Vice President are automatic delegates at all levels of congresses and conventions of the party.

By their sheer number compared with only the Local  Government Chairman, Governor, Deputy Governor, President and the Vice President, there is no doubt that the advantage enures in favour of  the members of the legislature. It is instructive that beyond their wards, such advantage is not accorded elected councillors.

In other words, apart from the five elected members of the Executive from the Local Government to the National level other Executive members as Local Government Supervisors, Commissioners, Ministers etc have to contest to be delegates at all levels of the internal democracy of the party. 

The question then may be asked what mischief is there in the law as it stands today that the National Assembly seeks to cure by the imposition of extra burden on the appointee political office holders that they should resign their appointment to be qualified to be voted for as delegates or present himself to be voted as a candidate for election into any position.

One of the canons of interpretation of statute is an imaginary excursion into the mind of the legislature  with a view to discover the mischief in the existing law or social existence it intends to cure. This is aptly restated by the Supreme Court in the case of Abubakar v Yaradua (2008) 19 NWLR (PT1120): 

“Whatever rule of interpretation is to be applied in a case, including the purposive rule, the intention of the lawmaker is paramount and central.The purposive rule of interpretation would appear to have been originated by Lord Denning in the case of Seaford Cort EstatesLtd. v. Asher (1949) 2 KB 481. In developing the rule, which evolved from the mischief rule, Lord Denning said:’It would ordinarily save the Judges trouble if Acts of parliament were drafted with divine presence and perfect clarity.

In the absence of it, when a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of parliament, and he must do this not only from the language of the statute but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy and then he must supplement the written word so as to give ‘force of life’ to the intention of the legislature”.

It is our view that there is nothing wrong with the present situation which gives elected politicians automatic tickets as delegates to party congresses and conventions while the appointed ones struggle to be so elected.

Rather than curing any mischief, Section 84(12) which seeks to disengage a politician from its political appointment and service no matter the time between the party elections and the general elections is not only a creation of mischief but mischief personified. 

A Senate President, Deputy Senate President, Speaker of the House of Representatives, many of whom still want to contest as Governors of their respective States can enjoy the grandeur and paraphernalia of  such positions while a Commissioner or Head of parastatals who wish to contest against him must first go and resign. There is no better definition of absurdity.

As for the judgement of the Federal High Court Umahia, I agree with many who submit that reference to political appointees in Section 84(12) of the Electoral Act is not the same as the provision of the constitution requiring public servants to resign 30 days to the date of the election they wish to contest in.

In this regards, I adopt the submissions of my erudite aburo, Dr. Kayode Ajulo that the judgement was delivered per incuriam particularly in the light of the decision in Oni v Fayemi (2019) LPELR-466 CA where the Court of Appeal held:”It is noteworthy to restate that the post of Minister is a political office, whose appointment is at the pleasure of the President of the Federal Republic of Nigeria, hence not a person in the Public Service of the Federation.

The cumulative interpretation of Section 182(1)(g) and Section 318(1) of the 1999 Constitution (as altered), is to the effect that the term public officer should only relate to the holder of offices/reflected in Section 318 being employees whose appointments enjoy statutory flavour because it is only them that have conditions of service and or letters of appointment stipulating how many years they are to spend in service, at what age they should retire, number of months to be given as notice etc.

Hence even though a Civil Servant is a Public Servant, it is not every public servant that is a civil servant. A Minister is therefore not a public officer who should resign his position before contesting in an election within the contemplation of the aforementioned section of the Constitution.  Nigeria, we hail thee.

Ebiseni is Secretary General, Afenifere.