Ozekhome: N’assembly tried to amend constitution illegally with section 84(12) of Electoral Act

Mike Ozekhome, human rights lawyer, says the national assembly acted beyond its powers in its amendment of section 84(12) of the Electoral Act.

The section 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.”

Last Friday, a federal high court in Umuahia, Abia state, ordered the attorney-general of the federation to delete the section from the amended electoral act.

Evelyn Anyadike, the judge, held that the section was unconstitutional, invalid, illegal, null, void and cannot stand.

Anyadike ruled that sections 66(1)(f), 107(1)(f), 137(1)(f) and 182(1)(f) of the 1999 constitution already stipulated that appointees of government seeking to contest elections were to resign at least 30 days to the date of the election.

In a statement on Thursday, Ozekhome said the judge “scored the bull’s eye in striking down the offensive subsection 12 of section 84 of the new Electoral Act in Suit No. UM/CS/26/2022: CHIEF NDUKA EDEDE V AG FEDERATION”.

“Most critics have never even cared to read the full order made by Justice Anyadike, so as to understand its true import and purport,” he said.

“She did not just restrict her order to only political appointees as is erroneously widely believed. She actually extended it to “any political appointee, political or public office holder”, as envisaged (according to these critics) in sections 84 and 318 of the 1999 Constitution.

“She actually aligned her order with these sections with the intention to deepen, widen and liberalize the political space.”

The senior advocate said with the provisions of subsections 12 and 13 of the same section 84,“the NASS had sought to completely emasculate and consign to the vehicle of electoral oblivion, a section of the political class, simply because they are currently serving their country”.

“What the NASS intended to do by subsections 12 and 13 of section 84 is to amend the constitution through the backdoor, without going through the tortuous  amendment process prescribed in section 9 thereof; which deals with the mode of altering the provisions of the constitution,” he said.

Ozekhome added that the power of Abubakar Malami, attorney-general of the federation (AGF), stops at giving effect to the court judgment by voiding the said provision and not deleting it from the official gazette.

“Why would the attorney-general seek to delete the offensive section 84 (12) as ordered by the Judge? A court’s duty stops at voiding an Act or law, but not to delete or repeal it.  That is the job of the legislature or the Law Revision Commission,” he said.

In a different twist, Ozekhome drew attention to section 84 (15) of the Electoral Act which he described as “more worrisome and dangerous”.

“I am surprised that all the critics of the federal high court judgement in Umuahia delivered by the honourable justice Evelyn Anyadike, have not adverted their learned minds to the more worrisome and  dangerous provision in section 84 (15).

“After granting the federal high court jurisdiction in section 84 (14), to entertain cases from “an aspirant who complains that the provisions of this Act and the guidelines of a political party have not been complied with in selection or nomination of a candidate of a political party for election, may apply to the federal high court for redress”, subsection 15 of section 84 went on to completely oust the jurisdiction of all courts on matters concerning primaries, thus:

“Nothing in this section shall empower the courts to stop the holding of primaries or general elections under this Act pending the determination of a suit”.

“Interpreted in another way, section 84(15) is simply saying:

“Courts, please, allow political parties to first do maximum damage during their primaries and general elections, and subsequently entertain emerging suits thereafter after the wrong candidates would have emerged and after resources, time and energy would have been expended by individuals, political parties, INEC and the electorate to conduct sham elections”.

“I am worried by this obnoxious ouster clause. Are you not?”