How Nigeria’s Justice Minister, Malami Manipulated Federal High Court To Issue Conflicting Orders On Section 84(12) Of Amended Electoral Act — Falana

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Human rights lawyer, Femi Falana (SAN) has alleged that the Attorney General of the Federation and Minister of Justice, Abubakar Malami manipulated the judgement of the Federal High Court in Umahia, Abia State with regards to deletion of section 84 (12) of the Electoral Act 2022.

SaharaReporters had earlier reported that the AGF alongside some principal officers such as Minister of Transportation, Rotimi Amaechi, and the Central Bank Governor, Godwin Emefiele, worked behind the scenes to obtain an order by the Federal High Court Umuahia that would keep them in office even if they contest for political offices.

The controversial section 84(12) of the Electoral Act reads: “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.”

For instance, with the provisions of the act, political appointees such as Amaechi, Minister of Transportation; Malami, Minister of Justice; Chris Ngige, Minister of Labour and Employment; Emeka Nwajiuba, Minister of State for Education; Godswill Akpabio, Minister of Niger Delta Affairs; Timipre Sylva, Minister of State for Petroleum Resources, among others who have been reportedly linked to presidential and governorship ambitions must resign from their various offices if they want to contest in 2023.

However, Malami and the others cunningly sought the deletion of the provision from the constitution in their own favour.

Also, President Muhammadu Buhari had, after signing the bill into the law, written the National Assembly requesting that the provision be expunged from the Electoral Act.

But the opposition party, the Peoples Democratic Party had on March 2, 2022, filed an ex-parte motion against the Nigerian government at the Federal High Court in Abuja seeking to stop attempts to tamper with the Act.

The PDP also prayed the court for an order of interim injunction restraining Buhari and other defendants from refusing to implement the duly signed Electoral Act or in any manner withholding the Electoral Act from being put to use, including the provisions of Section 84 (12) of the said Act pending the resolution of the suit.

This was granted on March 7 by the presiding judge, Inyang Ekwo.

Meanwhile, two other suits were filed both in Ibadan, Oyo State and Umahia, Abia State by one Oyewole Bolanle and Nduka Edede respectively compelling the AGF to delete the provision.

On March 19, the Federal High Court sitting in Umuahia ordered the Office of the Attorney-General of the Federation to immediately delete Section 84 (12) of the Amended New Electoral Act.

The court in a judgment delivered by Justice Evelyn Anyadike held that the section was unconstitutional, invalid, illegal, null, void and of no effect whatsoever and cannot stand as it violates the clear provisions of the Constitution.

While Malami failed to react to the March 7 orders, the Umuahia judgment was recognised as the AGF’s office gave the federal government’s position through the Special Assistant on Media and Public Relations, Umar Jibrilu Gwandu.

Gwandu said the minister would accordingly give effect to the court judgment in line with the dictates of the law and the spirit of the judgment.

“The office of the Attorney General of the Federation and Minister of Justice will accordingly give effect to the Court judgment in line with the dictates of the law and the spirit of the judgment.

“The judgment of the Court will be recognized by the Government printers in printing the Electoral Act. The Act will be gazetted factoring the effect of the judgment into consideration and deleting the constitutionally offensive provision accordingly.

“The provision of Section 84(12) of the Electoral Act 2022 is not part of our law and will be so treated accordingly. This is in line with the dictates of chapter 7, Part 4, Section 287 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) on enforcement of decisions that make it a point of duty and obligation on all authorities and persons to have the judgment of the Federal High Court, among others, to be enforced,” the AGF office said.

But in a statement on Sunday, Falana pointed out flaws, noting that the two cases filed by both Bolanle and Edede were similar despite being filed in different courts and locations — confirming SaharaReporters’ story that Malami and others were able to find a judge to do their bidding.

Also, Falana noted that Malami, being the defendant in both cases failed to draw the attention of both Ibadan and Umuahia Judicial Divisions of the Federal High Court to the fact that the Abuja Judicial Division of the same Court already gave a verdict with regards to deletion of the section prior to the Umahia court.

Falana further noted that Malami failed to inform the Umuahia court that the Ibadan Judicial Division of the court had struck out a similar case for want of locus standi.

He, however, warned that if the Attorney General goes ahead to delete section 84(12) of the Electoral Act, he (Malami) would be liable to be committed for contempt ex facie curiae as the Abuja Judicial Division of the Federal High Court has restrained him and other defendants “from enforcing the provisions of the said Electoral Act, 2022 including the provisions of Section 84(12) of the said Act pending the determination of the motion on notice for interlocutory injunction.”

This is even as the Senior Advocate noted that Malami cannot delete section 84(12) of the Electoral Act unless the valid and subsisting order of the Abuja Judicial Division of the Federal High Court is set aside, either by the trial Judge or an Appellate Court.

Falana submitted, “From the foregoing, it is crystal clear that even though the two lawyers who represented the Plaintiffs in Suit Nos FHC/ IB/CS/32/2022: CHIEF OYEWOLE BOLANLE v ATTORNEY-GENERAL OF THE FEDERATION and FHC/UM/CS/26/2002: CHIEF NDUKA EDEDE V ATTORNEY GENERAL OF THE FEDERATION are based in Ibadan, Oyo State and Umuahia, Abia State, the two cases filed by them were similar in every material particular.

“Hence, the two questions formulated for determination and the four similar reliefs sought by their clients in the two cases filed at the Ibadan and Umuahia judicial divisions of the Federal High Court are in pari material.

“Even though the Plaintiffs are different the Attorney-General of the Federation is the sole defendant in both cases. It is doubtful if the similarities in the two cases can be said to be mere coincidence.

“However, the Attorney-General of the Federation, the Defendant in both cases did not draw the attention of both Ibadan and Umuahia Judicial Divisions of the Federal High Court to the fact that the Abuja Judicial Division of the same Court had on March 7, 2022, restrained himself, President Buhari, National Assembly and the Independent National Electoral Commission from refusing to implement the provisions of Section 84(12) of the Electoral Act, 2022.

“Neither did the Attorney-General disclose to the Umuahia Judicial Division of the Federal High Court that the Ibadan Judicial Division had struck out a similar case for want of locus standi.

“In any case, since the case pending at the Ibadan Judicial Division of the Federal High Court was well reported in the print and electronic media, the Judge sitting in the Umuahia Judicial Division ought to have struck out the fresh case before her as it constituted a gross abuse of court process.

“It is pertinent to note that while the Attorney-General of the Federation pretended not to know about the order of interim injunction granted by the Abuja Judicial Division of the Federal High Court, he has announced the plan of the Federal Government to comply with the judgment delivered in the Umuahia case soon as possible.

“However, if the Attorney General goes ahead to delete section 84(12) of the Electoral Act, he would be liable to be committed for contempt ex facie curiae as the Abuja Judicial Division of the Federal High Court has restrained him and other defendants from ‘from enforcing the provisions of the said Electoral Act, 2022 including the provisions of Section 84(12) of the said Act pending the determination of the motion on notice for interlocutory injunction.’

“We submit, without any fear of contradiction, that unless the valid and subsisting order of the Abuja Judicial Division of the Federal High Court is set aside either by the trial Judge or an Appellate Court, the Attorney-General of the Federation cannot delete section 84(12) of the Electoral Act.

“It is trite that the Attorney-General cannot choose and pick the orders of the court to obey or disobey. More so, when it is undoubtedly clear that the Attorney-General deliberately set out to manipulate the Federal High Court to issue conflicting orders in a desperate move to annul section 84(12) of the Electoral Act.

“No doubt, this is the first time in the entire history of Nigeria that the office of the Attorney-General of the Federation has engaged in forum shopping for favourable orders of the Federal High Court or another Court. It is high time the dangerous manipulation of the Federal High Court was stopped as the nation prepares for the 2023 General Elections.”

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