President Muhammadu Buhari and members of his cabinet seeking the ticket of the All Progressives Congress (APC) for next year’s elections are currently weighing five options on whether the ministers should quit before the party’s primaries scheduled for the end of this month.
Public pressure is mounting on the ministers to quit in line with the provisions of Section 84 (12) of the Electoral Act 2022 which prohibits public officers from participating in their party primaries either as voters or as candidates.
The affected ministers are Rotimi Amaechi (Transportation), Chris Ngige (Labour and Productivity), Abubakar Malami (Justice) and Emeka Nwajiuba (Minister of State for Education).
All of them, save Malami who wants to govern Kebbi State, are seeking the APC presidential ticket.
The section provides thus: “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.”
But it is currently a subject of litigation at the Federal High Court Abuja where the Peoples Democratic Party (PDP) is praying the court to restrain the National Assembly from deleting the section from the Act allegedly at the instance of the President.
Besides, the Court of Appeal, Owerri Division has fixed May 10 for the hearing of the application of the National Assembly on the judgment of the Federal High Court, Umuahia which ordered deletion of Section 84 (12) of the Electoral Act.
Buhari sees the section as a contravention of the provisions of the 1999 Constitution.
The Nation gathered authoritatively yesterday that the presidency and the affected ministers first considered a legal advice which classified them as public officers under Part II of the Fifth Schedule to 1999 Constitution and offered a possible escape route.
But sources said they were not entirely comfortable with the legal advice especially the risk involved for them and the party in the event of the National Assembly winning the case at the Court of Appeal.
One of the possible consequences of that is that the court can void the election of a candidate that falls short of the provisions of the Electoral Act.
Some forces in the Presidency are understood to have worked out options under what sources called a Plan B to take care of the situation.
The options, contained in an advisory said to have been submitted to the President, are as follows:
Temporary withdrawal of service for a period by ministers/appointees
Ministers/other appointees may go on annual leave
Ministers/other appointees may apply for leave of absence
Ministers/appointees may take direct permission from President Buhari to contest for primaries
Waiting for the ruling of the Court of Appeal
The advisory suggests that “any public servant ready to contest any of our party’s primaries is free and encouraged to do so without resignation till main election. But if such officer feels his/her job will suffer he/she can do a withdrawal of service for a period or take a leave…annual or leave of absence from his direct boss, and in the case of HMs/Special Advisers/Assistants Mr President.”
A top source in government said: “The President and some ministers are aware of the agitation for their resignation before the primaries, but four fundamental issues have not been resolved.
“Part II of the Fifth Schedule to 1999 Constitution described ministers, commissioners and others as public officers for the purpose of the Code of Conduct. So, in the face of the law, they are not political appointees.
“Section 84(12) of the Electoral Act is before the Court of Appeal, and in line with the principle of fairness and equity, the right thing under the law is to maintain status quo ante bellum. It will amount to injustice to ask the ministers and other appointees to step aside.
“The President has consistently maintained that Section 84(12) of the Electoral Act will disenfranchise some Nigerians and he does not want to preside over such a society where the law is, in a vengeful manner, tilted against some citizens.
“For an existing administration, the process of appointing, screening and confirming ministers is cumbersome. Buhari’s administration cannot afford the luxury.”
Speaking on the matter in confidence, a minister said: “Some of our colleagues are not resigning because Section 84(12) amended and took away from public servants right granted by the 1999 constitution.
“Where there is a conflict, the constitution takes pre-eminence over any other law.
“Also, a subsisting judgment of a High Court which struck down Section 84(12) has not been upturned by any Appeal/Supreme Court. On what basis will ministers then resign?
“The situation is constitutionally technical and ministers and other appointees cannot continue to wait because time is not on their side. It is either they fall aside or take the risk.”
Responding to a question, the source added: “I think most of the ministers decided to go ahead to contest the primaries because they knew from the outset that they are not going anywhere.
“In their inner recess, some of the affected ministers are just testing the waters for relevance, ego massaging and to enliven the democratic space.”
Some of those listed as public officers in the constitution are the President, Vice President, Governor and Deputy Ministers of Government of the Federation and Commissioners of Government of States, members of the National Assembly or State Assembly, the Chief Justice of Nigeria, Justices of the Supreme Court, President and Justices of the Court of Appeal, all other Judicial officers and all staff of court of law.
Others are the Chief of Defence Staff, the Chief of Army Staff, the Chief of Naval Staff, the Chief of Air Staff and all members of the Armed Forces of the Federation.
Apart from the Attorney-General of the Federation and the Attorney-General of each state, the list includes Ambassadors, High Commissioners and other officers of Nigerian mission abroad.
The National Assembly has raised five points before the Court of Appeal on why it should quash the judgment deleting Section 84(12) of the Electoral Act.
It asked the Court of Appeal to set aside March 18th, 2022 judgment of Justice E.N Anyadike of the Federal High Court, Umuahia.
But some governors of APC and PDP have decided “not to take unnecessary risk” because of the uncertainty of the outcome of the case.
Some of the affected governors are those of Ogun, Kwara, Ondo, Kano, Osun, Ekiti, Rivers, Kaduna, Delta, Katsina, Akwa Ibom, Bayelsa, Ebonyi among others.
House of Representatives Speaker Femi Gbajabiamila warned last week that political appointees who refuse to resign before contesting the forthcoming 2023 elections posed a risk to themselves and their party.
“There are a number of people who have been mischievous. Some appointees have resigned their appointments to seek election, while there are some who remain obstinate, for want of a better word,” Gbajabiamila said on Channels Television.
He added: “Under the amended Act, there is a court decision pending that says there is no provision on this and during our conversation, we have said that the adjudication by the court should not be executed as of yet. Then there has also been an appeal by the National Assembly to set it aside.
“So invariably, it is a personal decision they have to make. Therefore the risk they run at the end of it all, if the court does find that the National Assembly was well within its rights to make such a provision that you are contesting an election while still a political appointee, then you are on a very serious risk of losing your election bid.
“And not only that, you as a person also put the party you belong to at risk.”