Section 84 of the newly signed Electoral Act 2022 deals mainly with political parties, their administration, funding and mode of operation, especially when it comes to conducting party primaries and congresses. However, political office-holders appointed by either the president or governors are not comfortable with the provision of one of the sub-sections and have not hidden their displeasure with it. There was an intense lobby to ensure that President Muhammadu Buhari did not sign the law, but he eventually did. Now that the bill has become law, what are the implications of this provision? TONY AKOWE reports
While signing the Electoral Act 2022 into law, President Muhammadu Buhari faulted the inclusion of Subsection 84 in the act, which forbids political appointees from participating in party congresses and conventions both as delegates and or as candidates. The president commended the lawmakers for what he described as “commendable efforts in line with our policy to bequeath posterity with landmark legal framework that would pave the way for a credible and sound electoral process that Nigerians would be proud of”.
Though he signed the bill into law, Buhari observed: “From the review, it is my perspective that the substance of the bill is both reformative and progressive. I am making this bold declaration because I foresee the great potential of the bill. Worthy of note include the democratic efficacy of the bill with particular reference to Sections 3, 9 (2), 34, 41, 47, 84 (9), (10) and (11) among others. This, however, cannot be said about one provision as contained in the proposed bill, which constitutes a fundamental defect, as it conflicts with extant constitutional provisions. Section 84 (12) constitutes a disenfranchisement of serving political office holders from voting or being voted for at conventions or congresses of any political party, for the nomination of candidates for any election in cases where it holds earlier than 30 days to the national election. The section provides 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 nomination of candidates for elections’.”
The president believes that the provision introduced qualification and disqualification criteria and that the lawmakers went beyond their powers as provided for in the constitution by importing blanket restrictions and disqualification to serving political officeholders. The only constitutional expectation placed on serving political office holders is resignation, withdrawal or retirement at least 30 days before the date of the election. He added that allowing the provisions “will be stretching things beyond the constitutional limit to import extraneous restriction into the constitution on account of the practical application of Section 84 (12) of the bill where political parties’ conventions and congresses were to hold earlier than 30 days to the election”.
The president, therefore, requested the lawmakers to consider an immediate amendment of the law by deleting Section 84 (12) to bring it in line with the constitution. Interestingly, the political parties are not permitted to circumvent the process, as the law disallows them from fielding any candidate that will emerge from a primary that does not meet the requirements of the law. The law states that “nothing in this section shall empower the courts to stop the holding of primaries or general elections under the act, pending the determination of a suit”.
But House Leader, Alhassan Ado Doguwa (APC, Kano) believes that deleting the clause as a form of an amendment to the law may not be possible, given the time frame available to them. But he said the House will resort to its procedures to see what can be done to the law. He recalls global best practices which suggest that existing electoral law should not be tinkered with less than 360 days to the election which the law was meant to guide and regulate. Party primaries, according to the timetable released by the Independent National Electoral Commission (INEC), are scheduled to begin early April and end by the middle of June. This already places a burden on political appointees who wish to participate in the process at all levels.
Doguwa said: “For me, at the moment, we have formal legislation assented to by the president in the name of the Electoral Act 2022. So, it is a law. If Mr President or any Nigerian wishes to come up with an amendment, the procedure is there. I understand there was a communication in the Senate to that effect. We have not received the communication yet in the House of Representatives. For this, you can quote me authoritatively. But when it comes, we will do justice to it by going through our procedures. If time and procedure permit us to review it as Mr President requested, we will go ahead and do that. This is my opinion. The House has not sat on it and has not taken any position on it.
“But my opinion is that going by electoral protocols the world over when you have a legislative framework that has to do with the electoral process of a country you cannot alter any provision of that law, less than one year to that election. That might be a very big challenge. I am not preempting Mr President’s request or the position of members. But I am afraid if the members could indulge in that exercise that might amount to a procedural breach and the expectations of best practices of democracy the world over. Three hundred and sixty days to the election, we are advised not to tamper with the legislative framework. Anyway, if the House wishes to grant Mr President what he sent to us as an amendment, it is all about the procedure and we will be there to do it. One candid thing is that we must be able to deliver and provide legislation that will be in the best interest of our kind of democracy and reflect best practices the world over.”
Those who believe there is no big deal in political appointees resigning to participate in the exercise are quick to point the example of the last governorship primary of the All Progressives Congress in Ekiti State. Ahead of the primary, Governor Kayode Fayemi asked all his appointees who wish to contest the office of the governor to resign their appointment before purchasing the nomination form. Those interested obeyed and resigned their appointments to contest for the office.
Abdukrazak Namdas, Chairman of the House Committee on Army believes that there is nothing wrong with any appointee resigning to contest. He told The Nation in an interview that it is wrong for those appointees of government to be in office while contesting. He holds onto the provisions of the law, saying political appointees “cannot just come two minutes to elections and say you want to be this or that. That is why we are not getting the right people most of the time. If you present yourself early, the people will scrutinise you. So, why are they afraid? Must we use the perks of the office to get what we need all the time?”
Babajimi Benson, another member of the House of Representatives and Chairman of the House Committee on Defence said the clause was meant to provide a level-playing field for all contestants. He said: “Assuming without conceding that that’s what it says, Section 84 (12) that appointees must resign three months before a primary or convention, let’s say it’s geared towards stopping political office holders from contesting, there’s a section of the constitution which says that you shall resign 30 days before the general elections. If that constitutional provision clashes with the Electoral Act, which supersedes? There’s no need to even worry about that clause if that’s the way they perceive it.
“What we are trying to do is that for a convention or a congress, you have statutory delegates. But a governor will go and appoint 1000 political appointees to participate in the congress, who do you think will win? The governor will. We are saying no, you can’t do that. Let’s have a fixed number, a manageable number. Let’s give a fair chance to you, you and you, and not to the stooge or the preferred candidate of the governor. That’s what that clause is trying to prevent. It is not trying to prevent political office holders from running. And I said even if does prevent political office holders from running, there’s a provision in the constitution that protects them.”
Presidential Adviser on National Assembly Matters (House of Representatives), and a former member of the House, Umar El-Yakub believes that deleting the clause will be in the overall interest of democracy in the country. Therefore, he said his principal will look forward to the National Assembly acting on the president’s request by deleting the controversial clause.
El-Yakub said political appointees have always been part of delegates to party congresses and conventions. His words: “Government appointees have always been delegates with the right to vote and be voted for in previous elections. So, this is just out of the ordinary. So, I believe the National Assembly will amend as sought by the president for the benefit of the Nigerian people. Without the amendment sought by the president, government appointees would no longer be able to vote and be voted for at party congresses, unless they resign. But if the National Assembly in its wisdom decides to go along with what the president requested and it is assented to by the president, then government appointees will be able to participate in the congresses as delegates and also to be voted for as candidates.”
The immediate past General Secretary of the pan northern socio-political organization, Arewa Consultative Forum (ACF), Anthony Sani believes the resignation of appointed political office holders interested in contesting elections is aimed at providing a level-playing ground for all aspirants and candidates. But he is of the view that it should not apply only to appointed officials aspiring for elective offices. He said: “It should apply to both appointed and elected offices, and not to only the appointed ones. That is to say, it would be discriminatory to apply it to only appointees. You may wish to note that I have issues with the reworked Electoral Act. For example, the provisions for consensus are veritable ammunition for moneybags and incumbent governors to foist their preferences on the other aspirants. Consensus is worse than the indirect primary.”
However, Sani is not comfortable with the fact that only aspirants and candidates should have the right to question and challenge declared qualifications of candidates who, if they get elected, would make decisions that affect citizens of the country and not affect only aspirants and candidates alone.
Executive Director of Civil Society Legislative Advocacy Centre (CISLAC), Auwal Musa Rafsanjani agrees with the president that the section was unnecessary. He said the clause is a clear indication of a power tussle between state governors and members of the National Assembly. He said: “The National Assembly found it worthwhile to insert a new clause into the bill when everyone had hoped they would just deal with the clause on the mode of party primary for speedy assent by the president.
“This particular insertion by National Assembly has become the new contention which in my honest opinion, is unnecessary at this crucial time because it would have been sad for the president to withhold his assent to the bill based on that clause. The clause sends a clear message of power tussle between members of the National Assembly and the state governors. From all indications, the governors and federal political appointees seem to be opponents of the clause as they perceive being targeted by the National Assembly.
“The implication is simple; if they are allowed political appointees, including ministers, commissioners and others who desire to contest for positions in the election will be required to resign their appointments before the primary elections. Hence, such appointees who lose out in those elections would find it difficult to be re-appointed and thereby cutting down the influence of the governors to impose anointed candidates.”
Rafsanjani was quick to point out that political appointees in Nigeria seem to be more loyal to the state governors than the federal lawmakers who exhibit a level of independence from the governors. The executive director said the whole thing is a power tussle between the federal lawmakers and the state governors at the expense of Nigerians.
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