MATTERS ARISING: Does Amaechi’s presidential bid violate section 84(12) of Electoral Act?

Since Rotimi Amaechi, minister of transportation, declared his intention to run for president in 2023, concerns have been raised about his continued stay in office.

On Saturday, the minister formally announced his desire to run for the highest office in the country, putting to rest speculations about his presidential ambition.

“I stand before you today to declare my intention and submit my application to serve as your next president,” Amaechi had told members of the All Progressives Congress (APC) at an event in Rivers state.

“No matter the darts and arrows that come my way, I will remain steadfast because the stakes are too high. We cannot afford to fail. We cannot afford to veer off-course.

“My aspiration is not about fulfilling any personal ambition. I am contesting for office because I believe that it is my moral duty to give what I can in the service of my country.”

Being the first political appointee of President Muhammadu Buhari to declare his presidential bid, the development has generated mixed reactions from Nigerians with some calling for his immediate resignation as a minister.

On Sunday, a group known as Niger Delta Transparency, Accountability and Good Governance Group (Niger Delta TAG) said the minister ought to have resigned before declaring his presidential bid. 

“It is rather unfortunate that due process was not followed by the Minister and I hope President Muhammadu Buhari will direct him to step down immediately,” the group said.

“Be that as it may, the proper thing to do now is for him to immediately resign to pursue his dream. Remaining in office as Minister while pursuing his presidential ambition will be a huge distraction to the government. The transport sector is in a very bad state, and it is bound to suffer more with a presidential aspirant as minister.

“Aside from being immoral and unethical with the attendant conflict of interest, it is also illegal for him to pursue the presidential bid whilst still serving as minister.”

WHAT DOES THE ELECTORAL ACT SAY?

The Electoral Act 2022 bars political appointees from voting or being voted for at a convention or congress of a political party for the purpose of the nomination of candidates for any election.

Section 84(12) states that “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”.

While section 29(1) of the act mandates political parties to submit names of candidates not later than 180 days before the election.

After Buhari approved the electoral act in February, the Independent National Electoral Commission (INEC) updated the schedule of activities for the general election, giving political parties between April 4 and June 3, 2022, to conduct primaries.

The APC is yet to announce a date for its convention to elect a presidential candidate to represent the party in the 2023 election.

As a result, under sections 84 (12) and 29 (12) of the electoral act, political appointees seeking election will have to resign before June 3 — when INEC expects that all issues on party primaries must have been resolved.

‘AMAECHI HAS NOT VIOLATED THE LAW’

Michael Agada, senior programme officer  (elections) at Youth Initiative for Advocacy, Growth and Advancement (YIAGA), told TheCable that the minister has not breached the provisions of the constitution or electoral act as it relates to political appointees.

Agada said those clamouring for Amaechi’s resignation should be dispassionate about the issue rather than being emotive.

“When people say that, I want them to quote that section of the law that has been breached. I would rather look at what the law says rather than being sentimental,” he said.

“Within the right of the law, he is expected to resign before the APC convention to elect a presidential candidate. The law does not mention the number of days. As long as it is before the convention then it is within his right to do so. So as it stands, I don’t see any part of the law he has breached whether the constitution or the electoral act because the convention has not been held. And as much as I know he did not vote as a delegate in the last convention to select the leaders of the party.”

Presenting a legal perspective on the matter, Modibbo Bakari, a constitutional lawyer, said Amaechi has the right to remain in office until the commencement of voting at the convention. 

“He has not violated the law because indicating interest to contest in an election is different,” he said.

“The electoral act says you cannot be voted for and you cannot vote, that is what the section says. So voting period has not reached Amaechi in the office.

“Nobody voted for him and he has not voted for anybody. A mere declaration is different from voting. Declaration to contest is different from being voted for, voting has not taken place. The only time when the violation will come is when the date of the election reaches and he is in the office.

“According to the provisions of the law, he can even resign a day before the election. What should be seen is that at the time he would be voted for, he is not holding that office. So he can continue with his appointment until the day of the election if there is no other internal procedure of the party.

“If it is based on the electoral act, he can hold the office until a day before the election provided that the day they are voting him he is not on that seat — that is a simple truth.  He can even hold the office and resign in the morning and they vote for him in the evening.”

‘RESIGNING IS A MATTER OF MORALITY’

Aside from not breaking the law, Agada said morality and integrity demand that any political appointee resign before declaring to contest an elective office.

“Calling on him (Amaechi) to resign is just more of a moral thing to do. It is saying ethical standards demand that he should resign,” he said.

“Most state governments are already imploring their political appointees to resign if they are going to participate.

“Why it is morally and ethical for him to resign is because any moment from now campaigns will kick off. You want to ensure that he is not using the stakes of his office to campaign for something else. Being a minister he is entitled to official cars and security details. So rather than being busy with his duties, you are using those things to do campaigns.

“But aside from what the law says, people who have such ambition should resign. Abuse of office and political appointment is just a thin line because when you use the apparatus of your office for a political campaign or personal gain then it is a contravention of the constitution.

“So I would expect a minister who has a political ambition to resign. It is an ethical thing to do. A minister should not allow his personal interest to come in between his duty.”

While the judiciary is yet to make a final decision on the controversial section 84(12), the national assembly has appealed against a judgment deleting the clause.

Bakari said the ruling party should play safe by complying fully with the provisions of the act to avoid a repeat of the Zamfara case.