Unending controversy over ‘sudden’ judgement on Electoral Act
Oluwafemi Morgan
04 April 2022
The recent judgement by a Federal High Court in Umuahia, the Abia State capital, on a section of the new Electoral Act has raised some dust as lawyers picked holes in the ruling, writes OLUWAFEMI MORGAN Three months, ago, the Chief Judge of the Federal High Court, Justice John Tsoho, lamented the high number of cases pending before courts across the country. According to the judge, there were over 128,000 cases pending before the court across its divisions nationwide. As at the time he spoke on December 7, 2021, the new Electoral Act which was later signed into law by the President, Maj. Gen. Muhammadu Buhari (retd.), a few weeks ago, had not been passed. With about 75 judges currently on the bench of the Federal High Court, the Chief Judge’s explanation could mean each of the judges had on the average over 1,700 cases to handle. Tsoho, who spoke during the special court session to mark the commencement of the Federal High Court’s new 2021/2022 legal year in Abuja, acknowledged how judges had become busy since the COVID-19 pandemic was brought under control last year.The Chief Judge had said, “The 2020/2021 legal year officially closed in July, 2021. Within that year, being September 2020 to June 2021, a total of 8,309 cases were filed. There were 40,822 civil cases; 30, 197 criminal cases; 35,563 motions and 20,258 fundamental rights enforcement applications pending at the end of the Legal Year.” It was therefore a surprise to many when just 10 days after the National Assembly rejected the plea by the President to amend the contentious section of the Act, a division of the court delivered a judgment on it. The action was a surprise to lawyers and political pundits.The judiciary did the almost unthinkable in the suit with No. FHC/UM/CS/26/2022. In the judgment by Justice Evelyn Anyadike of the Federal High Court in Umuahia, Abia State, the court directed the Attorney General of the Federation, Abubakar Malami, to expunge in its entirety Section 84 (12) from the amended Electoral Act recently signed by the President.
What came as an astonishment to many was that all the court processes were achieved within 10 days from the filing of the suit by a top chieftain of the Action Alliance, Nduka Edede, to the date of the judgement. Funnily enough, the National Assembly which passed the Bill was not joined in the contentious suit. In the judgment, Justice Evelyn Anyadike ruled that Section 84 (12) was “unconstitutional, invalid, illegal, null, void and of no effect whatsoever.” She also directed the AGF to “forthwith delete the said sub-section 12 of Section 84 from the body of the Electoral Act 2022”. The judgement aligned with the protestation of the President when he signed into law the bill known as the Electoral Act Amendment Bill 2022 into law after a brief stalemate between the legislature and the executive on its content.The sudden judgement acceded to the position of the defendant that Sections 66 (1) (f), 107(1) (f),137 (1) (f) and 182 (1) (f) of the constitution which states that “No person shall be qualified for election into the Senate or House of Reps if: (f) he is a person employed in the public service of the federation or of any state and has not resigned, withdrawn or retired from such employment 30 days before the date of election.” The judgement extended same treatment required of civil servants to public office holders. Meanwhile, Section 84 (12) of the Electoral Act bars serving political office holders, including commissioners, ministers and special advisers, from participating as delegate of the primaries in their respective parties or as candidates for any election. It further prescribes a reprimand in Section 84 (13) as a consequence for the disobedience of the Act, thus, “Where a political party fails to comply with the provision of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue.”The contentious clause was included in the Electoral Act despite resistance by President Buhari. However, based on the assurances made by the leadership of the National Assembly to the President that lawmakers would revisit the clause as soon as the President signed the bill into law, the President appended his signature to the bill. Unfortunately for the President who had always been assured that both arms of the 9th National Assembly were under the sure footed control of both the ruling party and the Presidency, it was a shock to them when the two chambers of the National Assembly rejected the bill sent to them by the President to remove the section considered as belligerent by the President and his allies. Recall that same legislators had hurriedly succumbed to the removal of the mandatory use of direct primaries by political parties in the electoral amendment bill instead of overriding the President’s veto. The unanimous refusal of both chambers to remove the clause after it had been passed did not only bruise the ego of the presidency, it also had far-reaching implications for the AGF, who was rumoured to have interest in becoming the governorship candidate of the ruling party in Kebbi State. Other ministers and commissioners, who also have stakes within the ruling party, realised it could be a move by the lawmakers to disempower them ahead of the 2023 generation elections. In fact, the President expressed concerns in his letter to the National Assembly that the clause in the Electoral Act would disenfranchise serving political officers. The President suggested that a 30-day grace be given for political office holders interested in contesting or participating in politics to relinquish their offices.However, both the Senate and the House of Representatives have decided to appeal the judgement of Justice Anyadike. The Speaker of the House, Femi Gbajamiabila, after listening to lawmakers, who stressed that the judiciary usurped their powers and ridiculed them with the judgment, noted that he would not allow the alleged mistake by the judge to stand. In a similar vein, the Senate queried the suit filed in a distant state outside the location of all the interested parties. As an interested party to the issue, the senators also vowed to appeal the said judgment.For the legislature, the unanimous crafting of the Electoral Act and the contentious section represent the aspirations of majority of the citizens and the constituents they represent in the country. They, therefore, considered it mischievous for the judiciary to order that the section of the law which they also argued was not in contrast to the provision of the constitution, be expunged by the ACF. Some lawyers are also angry with the pronouncement of the court on the issue. To legal experts like Femi Falana and Samson Osagie, the judgement was suspicious. They were together in saying the process that led to the delivery of the judgment was unacceptable.