Electoral Act 2022: The Validity of Section 84 (12)

By Matthew Eloyi

It is no longer news that the Electoral Act Amendment Bill of 2022 was signed into law by President Muhammadu Buhari on Friday, February 25, 2022. It is sufficient to recall that the abovementioned Bill was signed into law after a long period of delay and setbacks from both the Presidency and the National Assembly, particularly on the Bill’s provision regarding mandatory direct primaries.

It’s worth recalling that at the occasion of the signing of the Bill, President Buhari expressed his reservations about the new Law’s Section 84 (12) clause. Mr. President, according to a statement attributed to him, stated that the section in question is in conflict with existing constitutional provisions.

He went on to say that Section 84 (12) effectively disenfranchises serving political office holders from voting or being voted for at political party conventions or congresses for the purpose of nominating candidates for any election held less than 30 days before the National Election.

Political analysts, commentators, and legal experts have all reacted to the President’s reservations by issuing rebukes and criticisms.

On the basis of the foregoing, it is necessary to evaluate the contents of Section 84 (12) of the new Electoral Act in light of relevant provisions of the Constitution in order to determine the constitutionality or otherwise of the Act’s provision.

Section 84 (12) provides that: “No political appointee at any level shall be voting delegates or be voted for at the Convention or Congress of any political party for the purpose of the nomination of candidates for any election.”

This implies that an appointee of the Executive should not, and must not, be a delegate in primary elections while still in office, just as an appointee of the Executive should not be contesting as a delegate at any political party’s Convention or Congress while still in office.

To begin, it is important to highlight that the legitimacy of Section 84 (12) of the Electoral Act is derived from the Constitution, and it does not contradict the Constitution. The National Assembly has the power to provide guidelines and rules to ensure internal democracy within political parties, including making laws for the conduct of party primaries, party congresses, and party conventions, under Section 228 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

It is also worth noting that certain clauses of the Constitution prohibit people from running for the Senate or House of Representatives if they are engaged in the federal or state government and have not resigned, withdrawn, or retired from their position thirty days before the election. See Section 66(1)(f) of the 1999 Constitution (as amended). See also Section 107(1), (f) of the Constitution, which states that a public servant is ineligible to run for a post in the House of Assembly.

It’s also worth noting that a public servant is ineligible to run for President, Vice President, Governor, or Deputy Governor if he or she has not resigned from such job within 30 days of the election date. This is according to Sections 137(1)(g) and 182(1)(g) of the 1999 Constitution (as amended).

It can be argued that the need for a public servant to resign before election is to ensure that those in the Executive Administration of the Government at all levels are impartial and to prevent partisan politics in the civil service. A Civil Servant cannot be involved in party politics, according to the Public Service Rules. So you must resign if you want to be involved in partisan politics.

It is therefore, apt to commend the National Assembly for refusing to delete Section 84(12) of the new Electoral Act, making it mandatory for political appointees to resign their appointment before participating in primary elections as either delegates or candidates.