• Provision is unconstitutional, says Sagay
• There is nothing wrong with it, Adegboruwa insists
• Melaye, Kadiri, others urge NASS to ignore President
Eight days after President Muhammadu Buhari assented to the Electoral Act 2022, the National Assembly has begun the process of amending the legislation, which has divided Nigerians. President Muhammadu Buhari had written to the Senate to amend the newly signed act.
The President, in a letter addressed to Senate President Ahmad Lawan, and read at plenary yesterday, demanded the federal lawmakers delete Section 84 (12) outright.
The letter reads: “I write to draw your kind attention to some salient issues contained in the act and to seek your immediate legislative action thereon. I have carefully studied the recently assented electoral act amendment 2022 and must admit that there are positive provisions that could revolutionalise election process in Nigeria, particularly through the introduction of technology that will guarantee the constitutional rights of citizens to vote effectively.”
He, however, added that the practical application of section 84(12) “subjects serving political office holders to inhibitions referred to under Section 40 and 42 of the 1999 Constitution, as it is imperative to note that the only constitutional expectation from serving political office holders that qualify by extension as public officers within the context of the constitution is resignation, withdrawal or retirement, at least 30 days before the date of the election, as provided in Section 6(1)(f) of the 1999 Constitution.”
The contentious issue, which the President seeks an amendment, bars political appointees from voting or standing for election in conventions and primaries unless they resigned about 180 days earlier. The provision has continued to divide Nigerians, who are either supporting President Muhammadu Buhari’s call for its amendment or insisting it must be retained.
While majority of Nigerians believe that retaining the provision gives all candidates level playing grounds such that politicians would not use their aides for their advantages during primaries, a few others, like the renowned legal scholar, Prof. Itse Sagay (SAN), are throwing their weight behind the president.
Sagay said: “I agree entirely with the President, because what happened, at least, to my knowledge, was that the bill was first sent to the President containing provision for direct primaries, which he found obnoxious, because it will be difficult to execute and all sorts of constitutional conundrums.
“So, he objected to it and said if they could remove it, he would sign the bill. Now, the lawmakers did something they are very fond of, always looking for some personal advantage when carrying out responsibilities to this country.
“They slipped in new provisions. This time, they prevented people who are in executive positions from contesting or from taking part unless they resign and yet the constitution has already made provisions for checking these resignations for those holding positions in the executive.”
According to him, the lawmakers created a situation, which will force those appointees to resign about 180 days to participate in primaries.
The professor of law stressed that the provision was contrary to the provisions of the constitution, which stipulates 30 days resignation window for public office holders, adding that lawmakers were inserting the clause to suit themselves because they thought such provision would give them more opportunities as against those who are in various executive appointments.
“So, the president was quite reasonable in not signing the bill on time. I personally would not have signed at all because of that mischief from the National Assembly. I think that provision is unconstitutional and an example of extreme self-serving attitude,” he said.
A Global Vice President, International Republican Institute (IRI), Timi Olagunju, agreed that the spirit of the section is mainly to ensure that those in power do not use political appointees as tools to fulfill their ambitions.
He believes that since the provision borders on the voting rights of members of political parties, parties should be allowed to determine their own fates.
“The constitution in section 40 guarantees the right to association and as such it does preclude from another. A minister, for example, is an appointee of government and that should not preclude the fellow from associating and enjoying the rights associated with her political party such as voting.
“Instead of majority of the APC lawmakers in the National Assembly deciding for political parties how to run their internal affairs in this sense, they should let the parties decide how they want their association to run, and let people who are part of the party either agree or disagree to it,” he suggested.
Olagunju stated that the political parties should be the one to decide if they want to include such acts into their political party rules.
“The president should not even decide for the parties, each political party should decide what works for them. Also, the National Assembly should not either. The National Assembly should not regulate how people should associate with themselves. Making a law in that sense may not really go well,” he declared.
Reacting to the argument that it violates the provision of the constitution, Abuja based lawyer, Abubakar Sani, expressed doubt that the clause derogates the fundamental right of Nigerians to freedom of association and expression.
He argued that as far as the restriction is only applicable to political appointees and not others such as civil servants, it is justifiable.