Electoral Act: Controversy lingers as Appeal Court overrules Malami

The Owerri Division of the Court of Appeal last week ordered the Attorney-General of the Federation (AGF) and Minister of Justice Abubakar Malami, (SAN), and others to suspend the execution of the judgment of the Federal High Court, which struck down Section 84 (12) of the newly amended Electoral Act.

Malami had on March 22, after a Federal High Court in Umuahia, Abia State, nullified Section 84(12) of the Electoral Act on March 18, foreclosed possible appeals by vowing to promptly enforce the verdict.

However, a 3-member panel of the appellate court led by Justice Rita Pemu, last Monday issued an order putting the execution of the High Court’s decision on hold.

The court made the order in a ruling granting a request by the Peoples Democratic Party (PDP) to be joined as a party to the appeal challenging the judgment of the lower court.

The appellate court, in its ruling, ordered parties to refrain from taking steps capable of frustrating the pending appeal against the contested judgment.

It further prescribes a reprimand in Section 84 (13) as a consequence for the disobedience of the Act, 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 the issue.”

The contentious clause was included in the Electoral Act despite resistance by President Muhammadu Buhari. However, based on the assurances made by the leadership of the National Assembly to the President that lawmakers would revisit the clause as soon as the president signed the bill into law, the president appended his signature to the bill.

The unanimous refusal of both chambers to remove the clause after it had been passed did not only bruise the ego of the Presidency, but also had far-reaching implications for the AGF, who was rumoured to have an interest in becoming the governorship candidate of the ruling party in Kebbi State.

Other ministers and commissioners, who also have stakes within the ruling party, realised it could be a move by the lawmakers to disempower them ahead of the 2023 general elections.

Defendants in the suit were President Buhari along with the AGF, Senate President, Speaker of House of Representatives, Clerk of the National Assembly, Senate Leader, House of Representatives Leader and the Independent National Electoral Commission (INEC).

Also joined as defendants in the suit were the Deputy Senate President, Deputy Speaker, House of Representatives, Deputy Senate Leader, and Deputy House of Representatives Leader.

The main opposition party prayed the court for an order of interim injunction restraining Buhari and other defendants from refusing to implement the duly signed Electoral Act, or in any manner withholding the Electoral Act from being put to use, including the provisions of Section 84 (12) of the said Act pending the resolution of the suit.

It also applied for an order of the court stopping the National Assembly from giving effect to President Buhari’s request to remove Section 84 (12) or take any step that will make the provision inoperative pending the resolution of the motion on notice for interlocutory injunction.

The grouse of the PDP was that President Buhari having assented to the bill, cannot give any directive to the National Assembly to take immediate steps to remove Section 84 (12) or any section of the Act on any ground whatsoever.

In his ruling, Justice Inyang Ekwo restrained the National Assembly from tampering with the Act. He said the Electoral Act, having become a valid law, could not be altered without following the due process of law.

Justice Evelyn Anyadike, who presided over the court, directed that the section “be struck down as it cannot stand when it is in violation of the clear provisions of the Constitution.” She ordered the AGF to “forthwith delete the said sub-section 12 of Section 84 from the body of the Electoral Act, 2022”.

In the appeal, the federal lawmakers raised five grounds of appeal on why the court should set aside the March 18 judgment. It is also asking that the case be heard before the political parties hold their national conventions to select candidates for next year’s general elections.

They said the trial judge erred in law and acted without jurisdiction by hearing the suit of Edede without joining the necessary parties. They argued that the judge erred in law and consequently violated the National Assembly and the Clerk to the National Assembly’s (appellants’) right to a fair hearing when being conscious of the existence of their interest

It said the provisions of Section 66(1)(f), 107(1)(f), 137(1)(g), and 182(1)(g) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) relied upon by the judge only relate to public servants and does not include political appointees.

The National Assembly contended that not determining the appeal before the deadline for the submission of the list of candidates will defeat the purpose of the law, the National Assembly said.

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