The National Assembly has countered a suit filed by President Muhammadu Buhari and the Attorney-General of the Federation (AGF) and Minister of Justice, Abubakar Malami, on the controversial Section 84(12) of the Electoral Amendment Act 2022.
While the President and Minister asked the Supreme Court to interpret the provision of the section of the law, the lawmakers opposed the request to strike it out.
Their position was contained in a counter-affidavit filed by the counsel to the National Assembly, Kayode Ajulo, on Monday at the apex court in Abuja.
The National Assembly asked the Supreme Court to strike out the suit instituted by President Buhari and Malami, saying the court cannot be invoked to amend the provision of any law validity made by lawmakers in the exercise of their legislative powers as granted by the Constitution.
According to them, the 1999 Constitution as amended gives the National Assembly the power to make laws for good governance in Nigeria.
Section 84 (12) of the Electoral Act has been a subject of intense litigation and political debate in Nigeria since President Buhari signed the amended Electoral Act 2022 into law in February this year.
Shortly after signing it into law, Mr Buhari had urged the parliament to delete the controversial clause in the Electoral Act, but the National Assembly declined the president’s request.
According to Section 84 (12) of the legislation, “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.”
In the suit filed on 29th April, Messrs Buhari and Malami, who are the plaintiffs, listed the National Assembly as the sole defendant.
This suit comes weeks after the Federal High Court in Umuahia, Abia State, struck out Section 84 (12) on the ground that it conflicted with some sections of the Nigerian constitution.
Mr Malami, who was among a pack of ministers with political ambition ahead of 2023, had hurriedly announced his plan to immediately enforce the judgement by deleting the provision from the Electoral Act.
Mr Malami was accused of pursuing the deletion of the legal provision because of his interest, to ensure that he remained as the AGF as long as possible while campaigning to become Kebbi State governor.
But the Court of Appeal in Abuja in a rather confusing judgement set aside the Federal High Court judgement while also agreeing with the trial court that the new provision is unconstitutional.
In the suit marked SC/CV/504/2022 and filed on 29th April 2022, Messrs Buhari and Malami are seeking an order of the apex court to strike out the section of the Electoral Act, which they argue was inconsistent with the nation’s constitution.
The plaintiffs contend that the Section 84 (12) of the Electoral (Amendment) Act, 2022 is inconsistent with the provisions of sections 42, 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the Constitution of Federal Republic of Nigeria, 1999, (as amended), as well Article 2 of the African Charter on Human and People and Peoples Rights.
The plaintiffs also contended that the Nigerian constitution already provides qualification and disqualification for the offices of the President and Vice President, Governor and Deputy Governor, Senate and House of Representatives, House of Assembly, Ministers, Commissioners and Special Advisers.
They urged the Supreme Court to make: “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 of the Federal Republic of Nigeria, 1999, (as amended), the provision of Section 84 (12) of the Electoral Act, 2022 which also ignores Section 84(3) of the same 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, hence unconstitutional, unlawful, null and void.
“A DECLARATION that having regard to the clear provision of section 1(3) of the constitution of the Federal Republic of Nigeria, 1999, as amended, read together with section 4 of the same Constitution, the legislative powers vested in the Defendants 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), and without amendment to any of those sections is for the reason of inconsistency, unconstitutional and therefore null and void.
“A DECLARATION that section 84(12) of the Electoral Act, 2022 disqualifying political appointees from being voting delegates or be voted for at a convention or Congress of any political party for the purpose of the nomination of candidates for any election is discriminatory, inconsistent and in violent breach of the provision of each of the Sections, 42, 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196 of the Constitution of Federal Republic of Nigeria, 1999, (as amended), as well Article 2 of the African Charter on Human and People and Peoples Rights and same is null and void by reason of its inconsistency.
“A DECLARATION that by the introduction of the provision of Section 84 (12) into the Electoral Act, 2022, but in disregard of Section 84(3) of the same Act, the Defendant has acted ultra vires the legislative powers vested in it under the provision of section 4 of the constitution of the Federal Republic of Nigeria, 1999 (as amended) and/or in violation or breach of the provisions of Sections 65, 66, 106, 107, 131, 137, 147, 151, 177, 182, 192 and 196, thereby rendering Section 84(12) of the Electoral Act, 2022 unconditional, null and void.
“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 1st Defendant as enshrined in section 4 of the constitution (as amended).
“SUCH FURTHER OR OTHER ORDERS as this Honorable Court may deem fit and just to make in the circumstances of this suit.”