QUESTION: Are political appointees in electoral act different from public officers in constitution?

President Muhammadu Buhari signed the Electoral Act, 2022 into law on February 25.

At the signing ceremony, Buhari asked the national assembly to delete section 84(12) of the act, saying the provision violates the stipulations of the 1999 constitution (as amended).

Section 84(12) of the electoral act says: “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.”

A few days after Buhari signed the act, the senate rejected the president’s request seeking to delete section 84(12) of the law.

THE IMPLICATIONS OF SECTION 84(12) 

By the virtue of section 84(12), political appointees are meant to resign their appointment to be eligible as delegate in a political convention or candidate in an election.

The section also stipulates the penalty for political parties that nominate political appointees who did not resign.

Section 84(13) reads: “Where a political party fails to comply with the provisions of this act in the conduct of its primaries, its candidate for the election shall not be included in the election for the particular position in issue.”

Who are political appointees? Political appointees are persons appointed to hold a position in government.

In some cases, the appointment of a political appointee is terminated at the expiration of the tenure of his principal.

Ministers, commissioners, advisers, and ambassadors can be referred to as political appointees.

With months to the 2023 elections, political appointees at the state level with political ambitions have started complying with section 84(12) of the electoral act by tendering their resignation, but those at the federal level — ministers — have refused to resign.

Some analysts have argued that since political appointees like ministers, commissioners and ambassadors are listed as public officers in Schedule V, part II of the 1999 constitution; it is appropriate to say public officers are political appointees.

Those who disagree argue that political appointees are not in the same category as public officers mentioned in the constitution, and that the contentious clause was introduced by federal lawmakers to prevent political appointees from using public resources to finance their ambitions.

POLITICAL APPOINTEES AND PUBLIC OFFICERS

The 1999 constitution is silent on the phrase “political appointees”. Prior to the introduction of the clause on political appointees into the electoral act, political appointees usually rely on the provisions of the constitution on public officers as regards election matters.

Sections 66(1)(f), 107(1)(f), 137(1)(g) 182(1)(g) of the 1999 constitution stipulates that elected public officers, which include civil servants, who want to contest an election must have resigned their position at least 30 days to the date of the election.

These sections in the 1999 constitution make use of the phrase “being employed in the public service of the federation or any state”.

The big question is — are political appointees “employed” into the public service at the federal or state level?

Some analysts have argued that since political appointees are paid from the public funds, it is logical to conclude that they are “employed” in public service.

Section 318 of the constitution suggests that persons who work in government ministries, departments or any other government business at the federal or state level are under the “civil service of the federation or state”.

Schedule V, part II of the constitution listed persons who are public officers bound by the code of conduct stipulated in the constitution.

President, governors, federal and state lawmakers, attorney-generals, ministers, commissioners to mention a few are listed as public officers in schedule V of the constitution.

JUDICIAL PRECEDENTS 

On numerous occasions, the judiciary has given interpretation on who is a public officer as mentioned in section 318 of the constitution.

In the case of Hon. commissioner for local government and chieftaincy affairs & Anor v. Oba Adeyinka Onakade (2016),  the appeal court ruled that the local government commissioner is not a public officer and his appointment is at the mercy of the state governor, who appointed him. 

In the case of INEC & other v. Chief T.A. Orji & ORS (2009), the appeal court ruled that the first respondent (chief of staff) and second respondent (commissioner) are not public officers and therefore qualified to contest for the offices of governor and deputy governor without the 30-day-before-election resignation notice stipulated in the constitution.

Rulings in the cases of Adamu v. Takori (2010), Asogwa v. Chukwu (2003), Dada v. Adeyeye (2005) and Oni v. Fayemi & ORS (2019) affirmed that political appointees are not public officers.

POLITICAL PARTIES RISK DISQUALIFICATION AMID LEGAL TUSSLE 

On March 18, a federal high court in Umuahia, Abia state, ordered the attorney-general of the federation to immediately delete section 84 (12) of the amended Electoral Act, 2022.

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

Apparently pleased with the verdict, Malami, who recently declared his governorship bid, said the federal government will effect the judgment which ordered the removal of section 84(12) of the electoral act. 

The national assembly, legal practitioners and the Peoples Democratic Party (PDP) have faulted the judgment, saying only the attorney-general was the respondent in the suit. The dispatch with which the judgment was delivered was also a subject of public criticism.

The national assembly and the PDP have filed an appeal against the judgment, but the court of appeal is yet to deliver its verdict.

Amid the legal battle, political parties who nominate political appointees who did not resign their appointment in accordance with the electoral act risk disqualification from the election.