Electoral Act 84: How Lawyers Argued before Supreme Court Justices
POLITICS DIGEST- The Supreme Court Justices on Thursday enabled strong arguments by lawyers representing the Federal Government, National Assembly and the Rivers State Government on the constitutionality of the powers of the National Assembly to frame a section of the Electoral Act 84 (12) barring political appointees the electoral process.
The apex court’s seven- man panel led by Justice Musa Dattijo reserved judgment on the dispute to a later date ( that will be communicated to parties) after taking submissions from the lawyers representing President Muhammadu Buhari, Attorney-General of the Federation, National Assembly, Nigerian Bar Association and the Rivers State Government.
The FG had approached the apex court insisting that Section 84 (12) of the Electoral Act which bars political appointees from voting in an election contravenes the voting rights of all Nigerians as enshrined in Sections 137, 147 of the 1999 Constitution as amended.
But NASS, Rivers State and the NBA disagreed and urged the Supreme Court to dismiss FG’s suit for having no right to appear before the court and because the FG must not be allowed to assume jurisdiction in lawmaking which is the exclusive powers of the National Assembly.
The panel of the court animated proceeding when it started to ask the counsel pointed questions on their views of the law.
Chief Lateef Fagbemi SAN, who represents the FG, began by insisting that the Electoral Act 2022, having reassured that a political party shall not impose condition on any aspirant; the NASS cannot take away the rights that have been given to all through Section 84 (12).
After his submission, one of the panel members then asked him, “Is being a political appointee, a right or an appointment?”
Fagbemi replied that “it is a right”.
The judge threw back the question in another way, saying “You mean, one can insist to be appointed? “
Fagbemi said that although it was a privilege but that both the president and the appointee have rights–one to appoint and the other to be appointed– backed by the 1999 Constitution.
He maintained that the NASS in complete disregard for the Constitution, recognized a lawmaker for election and yet denied a political appointee when both have same criteria listed for them to be qualified for any public position in the country.
On his part, Kayode Ajulo, counsel for NASS, maintained that the president had no legal right to be at the Supreme Court because he was not directly affected by the provision.
Ajulo was asked by the panel if it has jurisdiction in the present dispute before it as presented by the federal government.
“The suit ought to have being filed in the name of the appointees, not invoking jurisdiction on this court in the name of the president and the AGF.
“We submit that Section 84 (12) is what my lord should uphold for it is constitutional,” he said, urging the court to strike out the plaintiff suit.
On his part, counsel for Rivers State, Emmanuel Ukala SAN, challenged the court’s jurisdiction to determine the case.
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He argued that under the Supreme Court Act, it is only empowered to determine suit from the president against NASS, but only on issues bordering on the difference between NASS and the executive like issues of budget.
One of the panel members then asked Ukala, “Is the president under any duty to protect the constitution?”
Ukala responded that when it comes to the National Assembly, the president’s duty is limited to protecting any encroachment into the executive realm.
He added that where a president had already assented to a bill like the Electoral Act, before any court action or right can arise, it has to be a person affected by that act and the rightful place to sue is at the Federal High Court.
Then another member of the panel asked, “If the president wants his political appointee to contest an election, don’t you think he is affected by Section 84(12) ?”
He replied saying, “The president will not be affected, it is the presidency. My lord, he may be affected in his personal capacity, then let him go to the Federal High Court. Infact, he has some cases against this act at the Federal High Court.”
One of the panel members further asked Ukala whether the NASS tried to further amend the Act in other to appease the president, and if Buhari has the right to come to the apex court for constitutional interpretation.
He admitted that the NASS did and the president’s request failed before the lawmakers.
“No, he can’t come to the Supreme Court, he should go to the NASS who has powers for enactment.The president can only assent or refuse to assent a bill.
“Section 84 (3) and 84 (12) of the Electoral Act is not a matter of qualification but a matter of internal democracy which the Constitution is backing.
“This entire suit should be dismissed,” he said.
NBA’s lawyer, Charles Mekwunye, told the panel that it is within the right of the NASS to make laws as they had done in Section 84 (12).
As for discrimination as argued by the federal government, the NBA lawyer argued that the 1999 constitution as well as the Electoral Act, allows for discrimination in certain aspects, except in areas of sex, religion, political opinion, ethnic, among others.
He argued that other political appointees like public servants or governors are allowed to vote or be voted for by the 1999 constitution, adding that no reference was made to ministers.
The NBA contended that the ill Section 84 (12) wants to solve is to provide a level playing field for all Nigerians and block ministers from using state resources to advance their political ambitions.
The panel queried the NBA on whether NASS can make any legislation that amounted to defining the content of a political party constitution?
“Yes, they can,” the NBA lawyer replied.
Fagbemi, again countered all the defendants by saying that no one has denied that Buhari showed concern about that Section before he signed it, leading him to write to NASS and eventually come to court.
But another panel member asked, “Did the law provide that where the president does not agree to a bill sent to him, he can tell NASS to change it? Or come to the Supreme Court if they fail to?”
“Under the law, you may not find it, but by convention, it is not illegal for him to come to court because he has sworn to uphold the constitution,” Fagbemi responded.
Subsequently, the panel held that “judgment in this suit is hereby reserved and date for its delivery will be communicated to parties.”
