PUBLIC OFFICERS AND POLITICAL APPOINTEES AS CANDIDATES IN THE 2027 ELECTORAL PROCESS: THE POSITION OF THE LAW
The right to be voted for under the Nigerian electoral regime has always had its limitations including the requirement of age and other requirements as constitutionally regulated. The most recent limitation to the right is that which affects Public officers and political appointees. This limitation has accordingly ignited intra and inter party crisis as it usually raises the question of the appropriate time for a candidate who is a public officer or political appointee to resign before participating in an electoral process, be it the primary election of the political party under which such person intends to contest election or the general election.
In the light of the quagmire, this paper seeks to provide constitutional, statutory and judicial clarity with regards to the appropriate time for a candidate who is a public officer or political appointee to resign. While a prospective aspirant for an elective position may choose to resign from his position to focus and have enough time and opportunity to traverse the constituency, zone, State or the country dependent on the position he or she maybe contesting for, same cannot be premised on any particularly legal provision requiring such at this time.
It is imperative at this juncture to posit that the timeframe requirement for persons to resign before contesting an elective position in Nigeria is a Constitutional issue not one within the purview of the Electoral Act. In this regard, the 1999 Constitution (as amended) by virtue of Sections 66(1)(f), 107(1)(f), 137(1)(g), and 182(1)(g) has provided that a person shall not be qualified to contest the election into the Senate or House of Representatives, House of Assembly, President, and Governor respectively if such a person employed in public service of the Federation or of any State and has not resigned, withdrawn or retired from such employment thirty days before the date of election.
Some persons may now ask, which election was contemplated by the said provisions of the Constitution. The answer and clarity have been laid to rest in multiple decisions of our Courts, See: Olly v. Tunji & Ors (2012) LEPLR-7911(CA), where the Court of Appeal per Ogunwumiju (JCA as she then was) held thus:
‘‘The above section, given its literal meaning is quite clear. The “election” referred to must be the election to the Senate or House of Representatives. It cannot refer to any other election outside the contemplation of that section. It is not the business of the court to enquire into the qualification of a candidate for the primaries. If a party decides to sponsor an unqualified candidate at the time of the general election, it has only itself to blame since by virtue of Section 65 and 66 of the 1999 Constitution and Section 138(1)(A) of the Electoral Act 2010, that would be a basis to challenge the election of such an unqualified candidate at the Election Petition Tribunal. The constitutional non qualification envisaged by section 66(1)(f) of the Constitution in mv humble view must be limited to the time frame relevant to the general election and not to the party primaries of the different political parties. That is the only literal interpretation that would not lead to absurdity.’’ (underlining mine for emphasis)
The Electoral Act, 2022(now repealed) had introduced a novel idea of political appointees at any level not being a voting delegate or capable of being voted for at the party’s convention or congress for the purpose of nominating candidates for any election, this provision has been retained though now under Section 88(1) of the Electoral Act, 2026.
The Apex Court had already equally laid to rest any question as to persons whom the erstwhile provision of Section 84(12) of the now repealed Electoral Act, 2022, which is impari materia with Section 88(1) of the Electoral Act, 2026, when the Court in Tukur v. Mustapha (2023) 13 NWLR (Pt. 1900) 40 SC, held per Emmanuel Akomaye Agim, J.S.C., thus:
“Section 84(12) of the Electoral Act, 2022 provides that 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. This section of the statute operates to bar every persons holding office as a political appointee, at any level, from participating in primary elections conducted by political parties to nominate their candidates for various political offices under the Act. Howbeit, unlike in the situation prescribed under section 66(1)(f) of the 1999 Constitution for public officers of the Federation or the State, which stipulates disengagement from service 30 days before the date of election, section 84(12) prescribes no duration for resignation of appointment before the holder of such political appointment can participate in the primary election of his party. The apposite point here is that, at the time of participating in the primary election of his party, either as a voting delegate or an aspirant, he must have resigned his political appointment. In the instant case, the 1st respondent resigned his political appointment on 5/4/2022 and participated in the primary election on 22/5/2022 about 46 days after resignation. It was also in evidence that his monthly salary was discontinued from April, 2022 following his resignation. Therefore, there was no breach or contravention of the provision of section 84(12) of the Electoral Act on the part of the 1st Respondent.” (underlining mine for emphasis)
Invariably by the combined provisions of the Constitution and the Electoral Act, 2026, a public servant in the employment of the Federation or any State of the Federation is under only the Constitutional window to resign at least thirty days to the election, the election in this instance is the general elections not the primaries of the various political parties, hence a public servant, who is not a political appointee is under no legal obligation to resign before the party primaries.
However, in the case of a political appointee, by the provision of the Electoral Act, 2026 such person intending to vie for an elective position for the purpose of being nominated or participating in the nomination process as a candidate for any elections, such a person shall resign his political appointment any time before the date set and fixed for the said party primaries, to qualify to vote or be voted for at the primaries or congress, as no time frame is provided in the Act as opposed to the case of public servants under employment of the Federation or of any State of the Federation and to equally avoid the situation of polluting his/her party’s primary elections, by so participating and rendering the primaries illegal by the subsequent provision of Section 88(3) of the Electoral Act 2026, as to be declared the Federal High Court or Court of competent jurisdiction.
Henry Kelechukwu Eni-Otu, Esq.
Managing Partner