By Levinus Nwabughiogu

•It’s booby trap for APC – Ajulo •Process crooked – Odinkalu Controversy over the judgment of a Federal High Court, Umuahia which declared Section 84(12) of the Electoral Act 2022 unconstitutional, null and void raged at the weekend.

The new statutory provision had prohibited political appointees from voting as delegates in party conventions or congresses for election or nomination of candidates.

An Abuja based lawyer, Dr. Kayode Ajulo, and a former Chairman of the National Human Rights Commission (NHRC), Prof. Chidi Odinkalu, are among those who kicked against the verdict yesterday.

Ajulo, one of those promoting the candidature of Vice President Yemi Osinbajo for President in 2023 on the platform of the All Progressives Congress (APC), faulted the position of the court on the grounds that the Constitution makes provision only for elective office holders to remain in office until three months to election and not appointed officers.

Besides, he wondered why the plaintiff had to go all the way to Umuahia, Abia State capital to file his suit and case heard without the National Assembly and the Independent National Electoral Commission (INEC) being joined.

On his part, Odinkalu said the court judgment sounded corrupt and crooked.

A lawyer and top member of Action Alliance (AA), one of Nigeria’s fringe political parties, Nduka Edede, had filed a suit at the court to challenge the constitutionality of the provision, with the Attorney-General of the Federation sued as the defendant.

Delivering her judgement on the suit on Friday, Justice Evelyn Ayandike agreed with the plaintiff that the provision conflicted with Nigerian citizens’ rights guaranteed by the constitution.

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 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”.

She ordered the Attorney-General of the Federation to, forthwith, delete the said Section 84(12) from the body of the Electoral Act, 2022.

The decision aligns with the recent protest by President Muhammadu Buhari against the provision.

In a statement, yesterday, Ajulo noted that authorities have established the principle that where a provision of an enactment by the legislature conflicts with the express provision of the Constitution, the said extant law shall be declared null and void.

“That is the essence of S1(3) of the 1999 Constitution as Amended. It provides: ‘If any other law is inconsistent with the provision of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void, “ he stated.

“It is, however, instructive to note that in cases where legislation is contested for being in conflict with provisions of the Constitution, the courts have only one duty: “To lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former… See the cases of U.S. v. Butler et al (1936) 297 U.S 1 (and Marwa & Ors v. Nyako & Ors (1980) LPELR-2936 (SC).

Forum shopping

“For those who have mind to think, the perdurable questions to ask include:

“Why was the suit filed in far away Umuahia, Abia State?

Why were the National Assembly and Independent National Electoral Commission not joined as parties to the suit?

“To answer these thought-provoking questions, attention must be readily drawn to the fact that the National Assembly, who is the authority empowered by Section 4 and 228 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Independent National Electoral Commission, who is empowered to regualte the conduct of elections in Nigeria by virtue of Section 153 of the Constitution respectively ought to have been joined by the plaintiff as necessary parties to the action.

Booby trap

“The reaction of the Federal Government and the office of the Attorney General of the Federation to the decision of the court leaves too much to be desired of the ruling All Progressives Congress.

“It is instructive to note that the Peoples Democratic Party, among other prominent political parties, has concluded its Convention. If the All Progressives Congress should rely on the ephemeral judgment of the court and proceed to permit political appointees vote and contest at its primaries and convention, same is a disaster going somewhere to happen.

“What readily comes to mind is the decision of the Supreme Court in Zamfara State where the apex court held that there were no validly elected candidates in the various elective positions in the state from the APC.

“In lending my two cents, it is not a triumph neither is it a time for drunk fanfare for the All Progressive Congress. The leadership of the party must be very circumspect in preventing a repeat of what happened in Zamfara.

Set aside

“It is quite glaring that the tale of the future of the provision of Section 84 (12) of the Electoral Act is not that of an unrivalled woe, the National Assembly and Independent National Electoral Commission have a right to challenge the decision of the trial court as same is likely to set aside on appeal”.

Odinkalu, speaking on the court verdict, said the process sounded corrupt and crooked, arguing: “This is a corrupt and crooked order on its face. When a case comes up for judgment, contrary to the text of this order, the court did not hear counsel nor did it go into due consideration. It simply proceeded to judgment after taking appearances.”

Meanwhile, two other lawyers differed on the verdict.

While Anthony Odebe said it was a wrong interpretation of some Sections of the 1999 Constitution, Onyebuchi Ememanka said the judgment was in order.

Odebe, who is principal partner of A.N Odebe and Co.domicled in Port Harcourt, Rivers State, said the interpretation was wrong.

He said that Section 84(12) dealt specifically with the political appointees and not civil or public servants.

Odebe, therefore, urged the National Assembly to immediately appeal the matter, saying it will not stand the test of judicial scrutiny.

But, in his own view, Ememanka, who is the Chief Press Secretary, CPS, to Abia State Governor, Okezie Ikpeazu, said the National Assembly wasted its legislative time in enacting the provision which, according to him, was inconsistent with the Constitution.

In a reaction titled, ‘Much Ado About Nothing’, he said that no act of the parliament can supplant the Constitution.

That spokesman for the House of Representatives, Hon. Ben Kalu, a lawyer, too, had, on Friday night, said that the House will await the Certified True Copy, CTC, of the judgment before making its further position known on the matter.