2023: APC presidential aspirants walking on landmines

There are indications that the ruling All Progressives Congress (APC) may be walking on political landmines ahead of the 2023 elections following the refusal of some of its serving ministers who are presidential hopefuls to resign their positions 30 days to the party’s primary as directed by the guidelines released by the party before the commencement of the process.

This is just as some political appointees who intend to participate in the forthcoming general elections under the platform of the APC have instituted a legal action against the party over disqualification threat occasioned by Section 84 (12) of the Electoral Act, 2022.

The leadership of the party had in the guidelines sold alongside the Expression of Interest and Nomination forms mandated the political appointees to resign 30 days before the presidential primary of the party slated for May 30.

Clearly, Article 3(i) of the APC final guidelines for the conduct of primaries, states: “No political appointee at any level shall be a voting delegate or be voted for the purpose of the nomination of candidates. Any political office holder interested in contesting for an elective office shall leave office 30 days prior to the date of election or party primary for the office sought.”

The decision of the party to avoid legal landmines may not be unconnected with Section 84(12) of the Electoral Act which mandates political appointees to resign before the election.
While the Electoral Act was not specific on whether the appointees should resign after the primary election or the general election, the guidelines of the ruling party was not ambiguous.

Rather than comply, the ministers sat tight following the ruling of a Federal High Court in Umuahia which struck down Section 84(12) of the Electoral Act 2022.

However, the Court of Appeal sitting in Abuja on Wednesday, citing ‘lack of locus standi,’ voided the judgment of the Federal High Court in Umuahia.

In a unanimous decision, the three-member panel of the appellate court presided over by Justice Hamma Barka held that the said Section 84 (12) was unconstitutional because it breaches Section 42 (1)(a) of the Constitution by denying a class of Nigerian citizens their right to participate in election.

The implication of the judgment pending the determination by the Supreme court meant that Section 84(12) subsists.

It was based on this judgment that President Muhammadu Buhari gave the marching order to the ministers and asked them to resign.

The president while demanding the resignation of the ministers, had announced that the Minister of State for Education, Hon. Emeka Nwajuiba had resigned his appointment on April 28, as directed by the party. The resignation letter was forwarded to the president. However, despite his purported resignation, Nwajiuba failed to channel his letter to the appropriate authority – the Secretary of the Government of the Federation (SGF) for documentation and public record.

Besides, after the minister submitted the letter, he was still attending meetings.

Analysts believed that aggrieved members or opposition parties could still explore his refusal to resign properly in the court of law.

The analysts were of the view that if the party goes against its guidelines, a repetition of the Zamfara and Rivers scenario might be in the offing.

Presently, the Minister of Science, Technology and Innovation, Dr. Ogbonnaya Onu, Minister of Niger Delta Affairs, Godswill Akpabio and Nwajiuba has resigned.

Their resignation came two weeks before the party’s primary. The questions on the lips analysts are: Will the APC in flagrant violation of its own guidelines screen all those who failed to heed to its directive as contained in the guidelines? If the party proceeds with their screening, can that not lead to litigation by some party members who would contest their eligibility? Or will the party adhere to the guidelines and disqualify all the ministers and others at the point of screening on the grounds that they flouted its guidelines ab initio?

Renowned constitutional lawyer and Senior Advocate of Nigeria, Femi Falana, was of the opinion that all those who failed to comply with the party’s guideline which was an extract from the 2022 Electoral Act ought to be disqualified from participation in the process.

In his view, resigning now is a waste of time. He went on to say that the operating legal framework was the 2022 Electoral Act until set aside by a superior court which at the moment is not the case.

So, by allowing the aspirants participate in the process is the APC setting itself up for a replay of the Rivers and  Zamfara scenarios?

However, while speaking in a telephone interview yesterday, the National Publicity Secretary of the party, Mr. Felix Morka, said the Electoral Act didn’t provide any timeline for political appointees to resign.

“That is the decision of the relevant committees of the party to make. These discussions are not heard by any individual, however highly placed. So I cannot give you an answer. But the only thing I will remind you is that the Electoral Act that provides for these resignations didn’t impose any timeline. It’s important that when you do the stories, to present all information so people can actually get a perspective.

“The Electoral Act is a law, an Act of parliament, generally speaking, supersedes other inferior laws and regulations. So usually, any lawyer will tell you that when there’s a conflict between the constitution and Act of Parliament, the act of parliament you know, is subordinate to the constitution.

“The Electoral Act didn’t provide any timeline; each person must resign. So these are the issues that the committee will have to grapple with and decide, ahead of the screening, and all of that.

“So, if the committee, for example, thinks the view that the Electoral Act provisions should apply, then the question you’re asking becomes mute. And that would be a fair decision because the Electoral Act is obviously superior to any rules or regulations by political institutions.

“So it’s not that clear cut. I know, you guys, like yes or no answers, but sometimes yes or no answers don’t address the issue,” he said.

Morka insisted that bringing Zamfara scenario into focus would be speculative; saying Section 84 does not dictate a timeline.

“Section 84(12) does not dictate a guideline. It doesn’t say resign a week before or a month before.   So if it doesn’t say that, then what the Court of Appeal said is irrelevant to this question you are asking.”

The party spokesperson noted that the constitution with respect to civil servants says you must resign a month before an election.

Morka stressed, “So in other words, if this question is based on the Electoral Act alone, any minister who resigns 24 hours before the primaries is fine. It doesn’t say resign one month, or two weeks or one hour before, it  just says resign  before. So, at any point before primaries, people are still free to resign.

“But now the president has given a directive that’s purely presidential and administrative. They are ministers serving at the pleasure of the president.

“So he has requested them to resign. So I’m quite sure that they will comply.  He’s the Commander in Chief. He has the right to hire them and to demand their resignation.  So that is a separate issue altogether,” he added.

Some political appointees who intend to participate in the forthcoming general elections under the platform of the APC have instituted a legal action against the party over disqualification threat occasioned by Section 84 (12) of the Electoral Act, 2022.

The plaintiffs amongst whom included a governorship and two House of Representatives aspirants in the suit are seeking for an order of court stopping the APC as well as the Independent National Electoral Commission (INEC) from disqualifying them on the strength of their being political appointees and section 84 (11) and (12) of the Electoral Act 2022.

The aspirants, Ambassador Sodique Abubakar, Lawal Abubakar and Bindir Buba in the suit marked, FHC/ABJ/CS/641/2022 are contending that Section 84 (11) and (12) of the new Electoral Act is discriminatory against them and unconstitutional and therefore should not be permitted by the court to be used to disqualify them on account of their mere political appointment.

In their originating summons filed on May 11, 2022, by Chief Adeniyi Akintola SAN, the plaintiffs want the court to determine whether being Nigerians covered by sections 66, 177, 182 of the 1999 Constitution could be subjected to any other conditions, rules or guidelines for the purpose of election into the office of the Governor of Bauchi State and House of Representatives  respectively by the APC under Section 221 of the Constitution other than the qualifications and criteria set out in sections 66, 177 and 182 of the Constitution.

They also ask the court to determine whether being card- carrying members of APC and political appointees they could be prevented or barred from participating in its political convention, congress or primaries merely because they are political appointees.

The plaintiffs further sought determination of whether the directive of APC based on section 184 (12) of the Electoral Act 2022, that political appointees must resign their positions 30 days before they can participate in its convention, congress or primaries for the purpose of standing as political party candidates in the coming election is Constitutional.

Besides, they also asked the court to determine whether section 84 (11) and (12) of the Electoral Act 2022 was not in conflict with section 84 (3) of the same Electoral Act and whether or not by virtue of Section 1 (1) and (3) of the 1999 Constitution of Nigeria is not Supreme and Superior to all other legislations and statutes including the Electoral Act 2022.

Upon resolution of the issues in their favour, the plaintiffs asked the court to declare that the APC’s directive that political appointees should resign from their respective posts as a result of section 84 (11) and (12) of the Electoral Act 2022, was unconstitutional and therefore null and void.

They sought an order declaring as unconstitutional, illegal and unlawful the APC’s directive that political appointees must resign from their positions before they could participate as voting delegates or be voted for in the convention or Primaries of the party.

The plaintiffs also applied for an order of injunction restraining APC and INEC either by themselves or agents from preventing, hindering or stopping them from attending, participating in party congress, convention or primaries for the purpose of voting or being voted for as candidates in the forthcoming elections and in any congress, convention or primaries.

In their 26-paragraph affidavit in support of the suit, the 1st plaintiff, Ambassador Abubakar claimed to be a political appointee and currently serving as Nigeria’s Ambassador to Republic of Chad.

The 2nd Plaintiff, Abubakar claimed to be a Special Assistant in the Federal Capital Territory Administration FCTA while the 3rd defendant, Buba claimed he is a National Coordinator, Social Investment Program in the Ministry of Humanitarian.

They averred that they have obtained expression of interest forms to contest in the primaries of the APC for nomination as candidates in the coming election.

They further hinted that pursuant to signing of the Electoral Act into law, there has been threats that political appointees will be disqualified from contesting primaries of APC because of section 84 (11) and (12) of the Electoral Act 2022.

The affidavit deposed to by one Oluwafemi Abimbola, a legal practitioner on behalf of the plaintiffs averred that sections 65, 66, 107, 131, 137, 177 and 182 of the 1999 Constitution covered qualification requirements of aspirants to political posts in Nigeria.

They claimed that Article 2 of APC Constitution affirmed Supremacy of Nigeria’s Constitution but the same party breached the section with its directive of May 7th that all political appointees must resign 30 days before its primary election.

Plaintiffs stated that Section 84 (11) and (12) are at the moment standing on their way to achieve their political ambitions and that unless the APC and INEC are restrained from the thread, they will be prevented from participating in the primary for nomination as candidates.
Meanwhile, no date has yet been fixed for hearing of the suit.  (THISDAY)