Electoral Act: Ozekhome backs Malami, says NASS can’t amend constitution through backdoor

Human rights activist and constitutional lawyer, Mike Ozekhome, SAN, has described as an attempt to amend the 1999 Constitution through the backdoor, the recent passage of the 2022 Electoral Act, particularly Section 84 (12), which barred political appointees from voting or being voted for during the congresses and conventions of political parties.

According to Ozekhome, the said section is not only unconstitutional but Justice Evelyn Anyadike should be commended for nullifying it.

PlatinumPost reports that Attorney General of the Federation and Minister of Justice, Abubakar Malami, had condemned the amendment of the Section 84 (12), describing it as unconstitutional.

In a statement made available to newsmen, which corroborates Malami’s position, Ozekhome described the section as discriminatory against certain classes of persons (political appointees), adding that with the new law, “the NASS had sought to completely emasculate and consign to the vehicle of electoral oblivion, a section of the political class, simply because they are currently serving their country”.

While arguing that the amended Electoral Act is totally unconstitutional and ultra vires the powers of the National Assembly, Ozekhome stated that, “What the National Assembly intended to do by subsections 12 and 13 of section 84 is to amend the Constitution through the backdoor, without going through the tortuous amendment process prescribed in section 9 thereof; which deals with the mode of altering the provisions of the Constitution”.

According to him, various sections of the Constitution have already dealt with the issue of qualification and disqualification of a candidate in an election and the current provisions of the amended Electoral Act run contrary to the Constitution.

“I commend the judgment of Justice Evelyn Anyadike, for protecting the sanctity of the Constitution”, he said, “where the provisions of the Constitution conflict with the provisions of Acts or Bills passed by the National Assembly and State Houses of Assembly, the former prevail”.

While he said he would not want to delve into the various political scheming that characterized the amended bill, the senior lawyer raised posers such as “when did we ever witness the 9th NASS oppose President Buhari’s budgets, bills, letters, actions or requests? Or When did the Attorney General of the Federation, Abubakar Malami, SAN, ever refuse to appeal a judgment and spontaneously act the judgment with such automatic alacrity, in obeying Justice Anyadike’s order of the court, as we just witnessed?

He also queried why the National Assembly (which initially passed the law), and INEC the implementer of the law were not joined in the suit, even as he berated the decision of Malami to delete the contentious section following the court’s judgement.

“Why would the Attorney-General seek to delete the offensive section 84 (12) as ordered by the Judge? A court’s duty stops at voiding an Act or law; but not to delete or repeal it. That is a job for the legislature or the Law Revision Commission. When did the Attorney-General (a top player in the Executive) possess statutory powers to delete Acts of the Legislature when laws are normally gazetted by the Legislature after the President and Governor had respectively signed bills into law?

“One should have thought that merely voiding the Act was sufficient until future amendment of the Act and consequential deletion of the offensive section, based on the court’s judgment in striking it down”, he said.

He, however, concluded that to avoid the present confusion and apparent bad blood generated by the protagonists and antagonists of section 84(12), the lawmakers should, in its ongoing Constitutional amendment exercise, amend section 66(1)(f) of the Constitution, to specifically include the following category of persons: “all political appointees by whatever name called”, as persons who must give 30 days’ notice to be able to contest an election.

He also advised all those who are aggrieved by Justice Evelyn Anyadike’s judgment, to apply to the Court of Appeal for joinder in the suit as interested parties to force an appeal, or prosecute any appeal arising therefrom.

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