Ministers in the cabinet of President Muhammadu Buhari eyeing elective posts in 2023 remained in their offices as of Sunday, further deepening the confusion over their participation in their party’s primaries at the end of the month.
The governing All Progressives Congress (APC), which has the president as the apex leader, had directed ambitious appointees at federal and state levels to resign their offices a month to the party’s primaries.
While there has been noticeable compliance at the state level, appointees at the federal level, especially those serving in President Buhari’s cabinet, have refused to quit.
The president has been publicly silent over their decision to stay in office and pursue their ambitions, though he had strongly objected to possible disenfranchisement through legislations.
Three of his ministers, Rotimi Amaechi (Transport), Chris Ngige, (Labour and Employment) and Chukwuemeka Nwajiuba (state education), are aspiring to be president. Attorney-General of the Federation and Minister of Justice, Abubakar Malami, has declared for Kebbi State governorship.
The governorship primaries hold 17 days from now.
With the presidential primaries scheduled for May 30 through May 31, the party’s guidelines, which compelled resignation a month before, has now been observed in the breach by the ministers by their refusal to step down at the weekend. Nwajiuba, however, dismissed the concern, saying, “The resignation of a minister or anybody who is in office is guided by the constitution to contest elections.
“My position is that the law of the country rests on the grundnorm called the constitution. If you do not like the constitution, your work is to amend it. There is no subrogation of power that is required for you to include into a law what is not deemed as included in that law.”
He was referring to the provision of the 1999 Constitution (as amended) which requires those in public service to retire 30 days before the election they seek to participate in.
Their refusal to step down has also contravened the contentious Section 84(12) of the Electoral Act, which also demands resignation before participating in primaries.
While it appears the ministers have their last hope against possible disqualification in the Constitution, senior lawyers have told them they could be walking a very tight rope.
Leading lawyer, Mr Femi Falana, told Nigerian Tribune that those aspiring ministers are not covered by the constitution because they do not belong to the class of public servants envisaged by the provision.
He said, “The appointees are not public servants. The provision in the Constitution applies only to those in public service. The ministers are not in this category and the Court of Appeal had stayed the judgment of the Umuahia court. So they are back to square one.”
Kunle Edun, national welfare secretary of the Nigerian Bar Association, NBA, in an elaborate op-ed, told the affected appointees to get off while it is safe.
Edun said, “The constitution of the Federal Republic of Nigeria is the grundnorm that guides our political, economic and social life. A political appointee is expected to resign if he wants to contest for any political office. It is more of a moral injunction.
“The constitution states in Section 66(1)(f) for those interested in going to the Senate and the House of Representatives; Section 182(1)(g) for those that have gubernatorial ambitions and Section 107(1)(f) of same Constitution, for House of Assembly aspirants, that they must resign or retire from the public service at least 30 days before the election.
“The constitution did not expressly state that the 30 days must be before the primaries of any political party or general election. In this wise, it would not be wrong to argue that since the Constitution is silent on whether the political appointee must resign before his party’s primary or general election, we cannot, therefore, read into it what it did not say.
“However, a collective interpretation of the spirit of these sections of the constitution would indicate that the constitution is referring to resignation before the general election, not party primaries.
“The interesting thing is that Section 84(12) of the Electoral Act is still extant as the Court of Appeal has stayed the judgment of the Federal High Court, Umuahia.
“Therefore, all political appointees are still barred from voting or being voted for in their parties’ congresses. The general election is still far away, next year 2023. INEC has already issued timetable for political parties to hold their primaries before June 2022.
“Any political appointee who does not resign now but goes ahead to participate in the primaries would be taking a huge risk that may occasion the nullification of the primaries or his purported election.
“Therefore, a combined reading of the cited constitutional provisions, Section 84(12) of the Electoral Act and the INEC timetable would require all political appointees to resign now if they want to contest for any political office.”
Kayode Ajulo, a doctoral degree holder in Law and counsel for the National Assembly in the appeal against the Umuahia court’s ruling, asked the appointees to thread with caution as the constitution may not end up providing the succour they assumed.
According to Ajulo, “I am a leading counsel for the National Assembly in the appeal before the Court of Appeal, Owerri. So, I’m being careful about what I say. But I must point out that by the pronouncement of the Court of Appeal, the execution of the judgment of the lower court has been stayed.
“It means that the Electoral Act is still the way the National Assembly passed it. Yes, the constitution does not specify the kind of election and that can be an alumni election, association election, primary election, general election or any other kind of election.”