By Ikechukwu Nnochiri

The Court of Appeal in Abuja, Wednesday, vacated the judgement of a Federal High Court in Umuahia, Abia State, which voided the provision of Section 84(12) of the Electoral Act, 2022.

It held that the high court acted without jurisdiction, when it ordered the Attorney-General of the Federation and Minister of Justice, Mr. Abubakar Malami, SAN, to delete the said provision from the newly amended electoral law.

The appellate court, in a unanimous decision by a three-man panel of justices led by Justice Hamma Akawu Barka, held that the person that instituted the matter at the lower court, Mr. Nduka Edede, lacked the locus standi to do so.

According to the appellate court, Edede failed to establish any cause of action that warranted him to approach the court on the issue.

It noted that the plaintiff was unable to establish how he was directly affected by that section of the amended Electoral Act.

Consequently, it struck out the suit marked: FHC/UM/CS/26/2022, which Edede filed before the court in Umuahia.

Though it made an order setting aside the verdict of the lower court, the appellate court invoked its constitutional powers to look at the substantive suit on its merit.

It held that the contentious provision of the amended electoral law was unconstitutional and in breach of Section 42 (1)(a) of the 1999 Constitution (as amended), stressing that the section denied a class of Nigerian citizens their right to participate in election.

Without granting any declaratory relief, the appellate court, which relocated its proceedings from Owerri to the Abuja Division, advised parties with the requisite interest in the matter, to seek further interpretation.

The judgement followed an appeal marked: CA/OW/87/2022, filed by the Peoples Democratic Party, PDP.

Justice Evelyn Anyadike of the High Court in Umuahia, had in a judgement she delivered in March, struck down Section 84(12) of the Electoral Act, 2022, and ordered the AGF to delete it forthwith for being inconsistent with the Constitution.

Barely 24 hours after the judgement was delivered, the AGF, Malami, SAN, announced his decision to enforce the court order.

Dissatisfied with the development, the PDP went to the Court of Appeal to challenge the decision of the lower court.

PDP, among other things, contended that the high court lacked the jurisdiction to direct the AGF to expunge a portion of the electoral law it said was duly passed by the National Assembly and assented to by the President.

It, therefore, prayed the appellate court to set aside the high court judgement.
It will be recalled that President Muhammadu Buhari had before he signed the Electoral Act Amendment Bill 2022 into law, expressed his reservations with that portion of the electoral law, which he described as discriminatory.


Specifically, section 84(12) of the Electoral Act, 2022, made it mandatory that political office holders must resign from office, before they could vie for any elective position.
It reads: “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.”

Some Ministers and other political appointees that have declared their interest to contest for elective positions in 2023, had relied on the high court judgement to remain in office, contending that section 84(12) of the Electoral Act, 2022, was illegal, since the constitution mandated them to resign, at least 30 days to the election.

The Federal High Court in Abuja had earlier fixed May 16 to hear another suit marked FHC/ABJ/CS/ 247/2022, which PDP filed to validate section 84(12) of the Electoral Act, 2022, which it described as constitutional and enforceable by the Independent National Electoral Commission, INEC.

Both President Buhari and the AGF, who were cited as defendants in the matter, had since asked the court to dismiss the suit for want of merit.

Buhari, in a joint counter-affidavit he filed with the AGF, argued that the contentious section of the Electoral Act, would disenfranchise political appointees and prevent them from engaging in the electoral process in exercise of their inalienable rights in a participatory democracy.

The President told the court that though he expressed his concerns about the said portion of the electoral law, he, however, did not at any time, ordered the Senate to delete it.

He told the court that though he was not comfortable with the said section, he went ahead and assented to the Electoral Act, in view of the impending general elections.

“The assent of the 1st defendant (Buhari) to the Electoral Bill given on February 25, 2022, was proper, full and unconditional.

“The 1st defendant assented to the Electoral Bill 2022 on February 25 but did not give conditions or directives to the National Assembly in the manner erroneously deposed to by the plaintiff (PDP).

“At no time did the 1st defendant give any directive to the management or leadership of the National Assembly as regards the removal of section 84 (12) of the Electoral Act 2022, from the Act.

“Prior to assenting to the Electoral Bill 2022, the 1st defendant merely expressed his observations and concerns about the constraints of section 84 (12) of the Bill on serving public office holders and political appointees, but gave his assent to avoid further delay as time was of essence.

“That the 1st defendant merely expressed his views not only to the National Assembly but to the entire nation as regards the inconsistency of section 84 (12) of the Electoral Act with other provisions of the Constitution.

“On March 8, 2022, 1st defendant officially wrote Senate President and House of Representatives Speaker to express his concerns about section 84 (12) of the Electoral Act and formally requested for amendment to be effected on the section so as to eliminate area of infraction with the Constitution.

“That I am aware that the National Assembly neither accepted nor acted on the opinion or suggestion of Buhari.

“In this instance, 1st and 2nd defendant, (Buhari and Malami), truly and firmly believe that section 84 (12) of the Electoral Act disenfranchises and discriminates against Nigerians in public service or public office holders who are political appointees and prevent them from engaging in the electoral process in exercise of their inalienable rights in a participatory democracy.

“That 1st and 2nd defendant have never taken it upon themselves to declare section 84 (12) or any provisions of the Electoral Act unconstitutional as such is beyond their constitutional power”, the court process read.

More so, both Buhari and Malami, drew attention of the court to the judgement of the high court in Umuahia, which they noted that PDP promptly appealed against.

The two defendants further averred that PDP had nothing to suffer, if the said portion of the electoral law is deleted, adding that removing the section would deepen the practice of democracy and stop discrimination against public servants and public office holders.


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