Public Servants or Political Appointees: Who is required to resign 30 days before Election?

By John Oluwole A. Akintayo: The most important judicial pronouncement recorded on 18 March 2022 that affects the political landscape in Nigeria is that of the Federal High Court, Umuahia Division, which struck down the provisions of Section 84 (12) of the Electoral Act 2022 on the ground of its unconstitutionality.

In the next few days it is believed more facts will emerge on the Umuahia case. Who are the parties in the case? The Attorney-General of the Federation is reported to be the defendant and the AGF office was represented by counsel. The House of Representatives has indicated it was not aware of the action and was not served with the court processes in the matter. It will interesting to know when the action was instituted. Nigerians will also be interested in knowing the details of the prayers sought by the party who instituted the action. It is apparent that there was no real contest as the counsel for the defendant the Attorney-General of the Federation agreed with the plaintiff and it will be interesting to read how the learned trial judge analysed the arguments presented by the parties. The position of the Attorney-General of the Federation that Section 84 (12) of the Electoral Act is unconstitutional has been in the public domain since the President signed the Electoral Bill 2022 into law.

Section 84 (12) of the Electoral Act 2022 provides as follows:

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 purpose of the nomination of candidates for any election.

The above provisions have been interpreted to suggest that political appointees must resign their political appointments 30 days before the conduct of party primaries to be eligible to participate as a voting delegate or an aspirant. The basis for this interpretation is difficult to fathom.

The ground for invalidating S. 84 (12) Electoral Act 2022 is that the provision is in conflict with the provisions of the Constitution of the Federal Republic of Nigeria 1999 which disqualify “a person who is employed in the public service of the Federation or of any State and has not resigned, withdrawn or retired from such employment thirty days before the date of the election”. (Sections 66(1)(f), 107 (1)(f); 137 (1)(g) and 182(1)(g).

The critical question is whether the definition to be assigned to “a person employed in the public service” or public servant for short is broad enough to accommodate “political appointee” used in the Electoral Act. It would appear the FHC Umuahia Division took the position that a political appointee is a public servant. The contrary view that a political appointee is not a public servant will put a question mark on the decision of the Federal High Court, Umuahia Division.

A cursory look at the definitions of “public service of the Federation” and “public service of a State in section 318 reveals that political office holders appear to be outside the purview of the public service. The provisions requiring the disengagement of public servant from service by resignation, withdrawal of service, or retirement, it is argued, cannot be extended to persons who are not part of the public service.

The case of Nwosu v. Imo State Environmental Sanitation Agency touches on the constitutional definition of public service.

It may be argued that the definition of public service in Section 318 of the 1999 Nigerian Constitution is not exhaustive on account of the use of the words “includes service as” and that political office holders may be accommodated under the introductory phrase “the service of the Federation in any capacity in respect of the Government of the Federation” or “the service of the State in any capacity in respect of the Government of the State”. It is contended that this interpretation will be stretching the express words of the Constitution beyond their natural scope.

We need to juxtapose the words “public servant” and “public officer”. Public officer is defined in paragraph 19 of Part I of the Code of Conduct for Public Officers (Fifth Schedule to the Constitution) to mean “a person holding any of the offices specified in Part II of this Schedule”. Political office holders including Ministers, Commissioners, Chairmen and members of governing bodies of statutory corporations and companies where governments have controlling interests clearly fall within the scope of public officers as well as public servants. Most political appointees will fall within the scope of public officers and not public servants.

Political appointee is a unique lexicon and is not coterminous with the expressions public servant and public officer. The Electoral Act refrains from using the expression “public officers” as elected officers are also public officers.

The efforts of the National Assembly to deepen internal democracy within political parties are commendable but one may argue that it should be the business of a party’s Constitution to prescribe the qualifications to be satisfied by a party delegate or an aspirant. In other words, the National Assembly has no business dictating to a political party who should be a voting delegate or a contestant at its Convention or Congress. This provision undermines the powers of a political party to regulate itself.

However, striking down Section 84 (12) of the Electoral Act cannot be founded on the basis of S. 66 (1) (f) of the 1999 Nigerian Constitution and its kindred provisions.

A sound basis for invalidating S. 84 (12) is that it infringes a citizen’s right to the full enjoyment of the right to freedom of association (S. 40 CFRN 1999) read together with the right to freedom of thought, conscience and religion (S. 38 CFRN 1999) and right from freedom from discrimination. The belief in political participation through membership of a political party is worthy of protection. A law that seeks to exclude citizens from a free exercise of this right without good reasons cannot be said to be justifiable in a democratic society. Political Appointees belong to a political community among politicians and ought not to be subjected to disabilities or restrictions to which other members of their political parties are not made subject.

A political appointee should not be prevented from discharging his or her duty to make positive and useful contribution to the advancement, progress and well-being of the Nigerian community to the fullest extent possible (S. 24 (d) CFRN)

The rationale for the constitutional provisions on resignation, withdrawal of service or retirement of public servants is not difficult to guess. A candidate is expected to devote time to canvassing for votes and a public servant will be distracted if he still remains in service when he should be on the campaign field. Section 66 (1)(f) of the 1999 Constitution and kindred provisions are inserted to insulate the public service from party politics.

To the proponents of S. 84 (12) of the Electoral Act 2022, the provisions are meant to guarantee a level-playing field among aspirants, promote public decency and prevent the obnoxious use of government resources to promote the political interests of some aspirants. One may however ask whether the above are relevant when a political appointee is a merely a voting delegate and not an aspirant to warrant his or her exclusion from party Convention or Congress. Elected personnel including legislators are not precluded from participating as voting delegates and aspirants. A legislator is not precluded from being an aspirant at the primary election or a candidate for an executive position at the general election even if he is a presiding officer of a legislative house. The argument that the legislator has a mandate to serve for a fixed term overlooks the fact that he is a privileged aspirant during party primaries.

The controversies about Section 84 (12) of the Electoral Act are rife among ruling parties especially the All Progressives Congress (APC) which controls the Federal Government of Nigeria. Only ruling parties at national and state levels parade political appointees and the National Assembly should while making a law as important as the electoral law de-emphasise issues that affect only ruling parties. The electoral law is a law meant for all Nigerians and all political parties whether those in government or out of government.

The ratio of the Federal High Court appears weak but the conclusion is sound for other reasons as argued above from a constitutional perspective. The National Assembly should realise its power to make law is not absolute; it is guarded by the express or implied limits imposed by the Constitution to safeguard democratic principles.