By Ikechukwu Nnochiri
The Federal High Court sitting in Abuja, on Monday, fixed May 24, for President Muhammadu Buhari and the Peoples Democratic Party, PDP, to address it on the import of a recent judgement of the Court of Appeal, which declared the contentious section 84 (12) of the amended Electoral Act, unconstitutional.
Justice Inyang Ekwo noted that the Abuja Division of the appellate court had on May 11, despite setting aside the judgement of the High Court in Umuahia that directed the Attorney-General of the Federation and Minister of Justice, Mr. Abubakar Malami, SAN, to delete the said section from the electoral law, still proceeded to declare it illegal and discriminatory.
A three-man panel of Justices of the appellate court had in their verdict, held that the court in Umuahia acted without jurisdiction when it struck out that portion of the Electoral Act, stressing that the plaintiff, Mr. Nduka Edede, lacked the locus standi to institute the action.
Though it made an order setting aside the judgement 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 was unconstitutional and in breach of section 42 (1)(a) of the 1999 Constitution, as amended, maintaining that the section denied a class of Nigerian citizens their right to participate in election.
However, without granting any declaratory relief, the appellate court, implored those with the requisite interest in the matter, to seek further interpretation.
The judgement followed an appeal that was lodged by the PDP.
Meanwhile, PDP had earlier gone before the Federal High Court in Abuja to stop the National Assembly from tampering with the newly amended Electoral Act 2022, which made it mandatory that political office holders must firstly resign from office, before they could vie for any elective position.
PDP prayed the court to declare that President Buhari, having assented to the Electoral Bill, he could no longer give any directive to the National Assembly to take immediate steps to remove the section or any section of the Act on any ground whatsoever.
Cited as Defendants in the suit marked FHC/ABJ/CS/ 247/2022, were President Buhari, Malami and the Independent National Electoral Commission, INEC.
At the resumed proceedings in the matter on Monday, Justice Ekwo, drew attention of all the parties to the Court of Appeal judgement.
While counsel to the PDP, Mr. Joseph Daudu, SAN, insisted that there was no express order from the appellate court in respect of the controversial section, President Buhari’s lawyer, Mr. Oladipupo Okpeseyi, SAN, contended that decision of the Appeal Court touched on the substance of PDP’s suit before the high court.
Consequently, Justice Ekwo ordered the parties to appear on the next adjourned date to formally address the court on the effect of the Court of Appeal judgement on the suit pending before him.
Both Buhari and Malami had earlier asked the court to dismiss PDP’s suit.
The defendants had in a joint counter-affidavit they filed against the suit, argued that section 84(12) of the Electoral Act, 2022, would disenfranchise political appointees and prevent them from engaging in the electoral process in exercise of their inalienable rights in a participatory democracy.
President Buhari 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.
Besides, both President Buhari and the AGF, have taken the matter before the Supreme Court for further interpretation.
They are, in the suit No. SC/CV/504/2022, urging the apex court to void the controversial section.
The National Assembly was listed as the sole Respondent in the matter.
The Plaintiffs, while invoking the original jurisdiction of the Supreme Court, contended that section 84(12) of the Electoral (Amendment) Act, 2022, is inconsistent with the provisions of sections 42, 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the constitution as well Article 2 of the African Charter on Human and Peoples Rights.
They are among other things, seeking; “A declaration that the joint and or combined reading of Section 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the Constitution, the provision of Section 84 (12) of the Electoral Act, 2022 which also ignores Section 84(3) of the same Act, is an additional qualifying and/or disqualifying factors for the National Assembly, House of Assembly, Gubernatorial and Presidential elections as enshrined in the said constitution, hence unconstitutional, unlawful, null and void”.
“A declaration that having regard to the clear provision of section 1(3) of the Constitution read together with section 4 of the same Constitution, the legislative powers vested in the defendant do not permit or empower it to make any other law prescribing additional qualifying/disqualifying grounds for election to the national assembly, house of assembly, gubernatorial and presidential election outside the express constitutional qualification and disqualification provisions as already provided in each or all of sections 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the 1999 constitution of the Federal Republic of Nigeria (as amended), and without amendment to any of those sections is for the reason of inconsistency, unconstitutional and therefore null and void”.
As well as, “An order nullifying the provision of Section 84 (12) of the Electoral Act, 2022 by application of the blue-pencil rule, for being unconstitutional, illegal, null and void and having been made in excess of the legislative powers of the defendant as enshrined in section 4 of the constitution (as amended).”