Section 84 Of Electoral Act: Supreme Court Strikes Out Buhari’s Appeal

…Bars political appointees from nominations

BY VICTOR BUORO, ABUJA – A seven-man panel of the Supreme Court on Friday, struck out the suit filed by President Muhammadu Buhari and the Attorney-General of the Federation and Minister of Justice, Mr Abubakar Malami, SAN, asking the apex Court to void Section 84 (12) of the Electoral Act, 2022.

The Court, in a unanimous decision by the seven Justices led by Justice Muhammad Dattijo, declared that it lacked the jurisdiction to entertain the suit which it stressed amounted to an abuse of the judicial process.

The Justices particularly ruled that President Buhari was not a proper person to approach the Court with the suit owing to the nature of the reliefs that were sought.

Buhari and AGF Malami had in the suit before the Supreme Court marked SC/CV/504/2022, argued that Section 84(12) of the Electoral Act, 2022, was inconsistent with the provisions of sections 42, 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the 1999 Constitution (as amended) as well Article 2 of the African Charter on Human and Peoples Rights.

The President and the AGF therefore sought “a declaration that the joint and or combined reading of Section 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the Constitution, the provision of Section 84 (12) of the Electoral Act, 2022 which ignored Section 84(3) of the Act, is an additional qualifying and/or disqualifying factors for the National Assembly, House of Assembly, Gubernatorial and Presidential elections as enshrined in the said constitution, thus, unconstitutional, unlawful, null and void.

According to the plaintiffs; “A declaration that having regard to the clear provision of Section 1(3) of the Constitution read together with Section 4 of the same Constitution, the legislative powers vested in the defendant (National Assembly), do not permit or empower it to make any other law prescribing additional qualifying/disqualifying grounds for election to the National Assembly, House of Assembly, gubernatorial and presidential election outside the express Constitutional qualification and disqualification provisions as already provided in each or all of sections 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the 1999 constitution of the Federal Republic of Nigeria (as amended).

They averred that such cannot take place without amendment to any of those Sections for the reason of inconsistency, unconstitutional and therefore null and void.

They further said; “An order nullifying the provision of Section 84 (12) of the Electoral Act, 2022 by application of the blue-pencil rule, for being unconstitutional, illegal, null and void and having been made in excess of the legislative powers of the defendant as enshrined in section 4 of the constitution (as amended).”

However, even though it was the National Assembly that was originally cited as the sole Respondent in the suit, the Rivers State Government through the Speaker of its House of Assembly and Attorney-General, applied and were joined as interested parties in the matter.

While opposing the suit, the Rivers State Government filed a preliminary objection before the Supreme Court, arguing that section 84(12) of the Electoral Act, 2022, was “neither a detraction from the provisions of section 84(3) of the same Act nor from the provision of sections 42(1), 65, 66, 107, 131, 137, 177, 182 and 192 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

Rivers State pointedly argued that there was no any abuse of the Constitution by the National Assembly in enacting the provisions of Section 84(12) of the Act, stressing that President Buhari, having assented to the Electoral Bill, he has conclusively discharged his duty under the Constitution.

Legal Counsel to Rivers State Government, Mr. Emmanuel Ukala SAN, further told the Supreme Court that the suit ought to have been filed before a High Court since President Buhari did not challenge the encroachment on his Executive powers by the Legislature.

Similarly, Counsel to the National Assembly, Dr. Kayode Ajulo, prayed the Supreme Court to strike out the suit against Section 84 (12), stressing that the duo of President Buhari and Malami were abusing the judicial process.

Ajulo particularly argued that President Buhari, having assented to the Electoral Act, cannot make a U-turn to challenge its provisions in court.

In the words of Ajulo; “The crux of our objection is that the plaintiffs as constituted do not have the legal right to invoke the original jurisdiction of this court as provided for in section 232 (1) of the Constitution.

“It can only be invoked if there is a dispute between the President and the National Assembly, when there is a dispute on the issue of law. There are other places where this issue can be ventilated. It is not in this court.

“It appears as if the President is suing himself, since he also assented to the Electoral Act in question. The suit ought to have been filed in the name of those appointees and in that case we would not have been in this court.

“What they have attempted to do is to use the name of the President to invoke the original jurisdiction of this court, in representative capacity,” Ajulo told the Court.

Also addressing the Supreme Court, the Nigerian Bar Association (NBA) which sought the approval of the Court to be allowed into the case as amicus curiae (friend of the court), said that it was before the court to represent Nigerian citizens and urged the Supreme Court to dismiss the suit in the interest of the public.

The NBA through its Counsel, Mr. Charles Mekunye SAN, submitted that there is no conflict between Section 84(12) and any other section of the Electoral Act, the 1999 Constitution (as amended), and the African Charter on Human and Peoples Right.

Mekunye further said; “Your lordships should take note of the ill the said section is meant to cure. The essence of the section is to provide a level playing field for all Nigerians, such that political appointees should not use their office to advance their personal interests”.

But, Counsel for President Buhari and Malami, Mr. Lateef Fagbemi SAN, prayed the Supreme Court to allow the appeal and nullify the controversial section which he noted would deny political appointees the right to participate in election.

Ruling on the matter, Justice Emmanuel Agim, who prepared and delivered the unanimous judgment upheld arguments of the defendants and therefore struck out the suit instituted by President Buhari and the Attorney General of the Federation, Abubakar Malami SAN.