25/07/2024
RESIGNATION BY POLITICAL APPOINTEES (TRANSITION COMMITTEE MEMBERS, PERSONAL AIDES IN GOVERNMENT) FOR LOCAL GOVERNMENT ELECTION AND THE POSITION OF THE LAW ON RESIGNATION OF APPOINTMENTS
It is expected that any person who wants to contest election to occupy public office must first resign from his or her present position he or she is holding presently. This is one area of law that has generated a lot of debate and argument in the minds of people including lawyers.
The issue of resignation of those contesting election in the upcoming Local Government Election and who are serving as Members of the Transition Committee or personal Aides in Government has again brought the issue to the political and legal front burner in Akwa Ibom State.
When will a political appointee need to resign to contest an election? Is a political Appointee a Public Officer as defined by Section 318 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended)? Is a Political Appointee a civil or public servant define in the Constitution?
A political appointee in the Transitional Committee is not a public servant in the definition of the Constitution of Nigeria. Transition Committee members do not refer or cover the term public service duly defined by Section 318(1) of the 1999 Constitution. This may shock you but this is the law.
In the case of COLE TONYE PATRICK v. INDEPENDENT NATIONAL ELECTORAL COMMISSION & ORS (2024) LPELR-61643(SC). The question arose. Whether a political appointees referred to in Section 84 of the Electoral Act, 2022 are included in public service under Section 318(1) of the Constitution of the Federal Republic of Nigeria, 1999, IBRAHIM MOHAMMED MUSA SAULAWA, JSC held,
"The term public service is duly defined by Section 318(1) of the 1999 Constitution, to mean the service of the Federation in any conceivable capacity regarding the government of the Federation. From the foregoing definition under Section 318(1) of the Constitution (supra), there is no gain-saying the fact that political appointees referred to in Section 84 of the Electoral Act, 2022 are expressly excluded."
The Transition Committee members in the Local Government Election are not people in the public service as provided in the Constitution of Nigeria Therefore, do not panic to resign months to the main election.
It is also worth stating that resignation for election purpose is not for primary election but general election. . The Court held in the case of OKOLIE V ELUMELU (2023), HABEEB ADEWALE OLUMUYIWA ABIRU, JCA held,
"A simple unbiased reading of the words of this provision show clearly that the "election" referred to therein is the general election conducted for the seats in the Senate and the House of Representatives. The provision has nothing to do with the internal elections within the political party. The Constitution does not, and has never been known to make provisions for the governance of the internal affairs of political parties"
This point was explained in Olly Vs Tunji (2012) LPELR 7911(CA) pages 54-55 by Ogunwumiju, JCA, (as he then was) 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. ... The constitutional non qualification envisaged by Section 66(1)(f) of the Constitution in my 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."
Again, in Dantiye Vs All Progressives Congress (2020) LPELR 51037(CA), the Court of Appeal per Oniyangi, JCA, opined thus
"... In my understanding of the provision of Section 66(1)(f) of the 1999 Constitution of the Federal Republic of Nigeria, all that is required by an aspiring contestant who is under employment in any public service of the Federation is to effectively resign from such service, 30 days before the date of such Election he is intending to contest. ..."
Further, in the unreported decision in Appeal No CA/ABJ/CV/822/2023 - Abubakar Adaji Achimugu Vs All Progressives Congress & Ors - delivered on the 18th of August, 2023, the Court of Appeal, interpreting similar provision in Section 182(g) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) on candidates seeking for election as Governor, expressed the same opinion that the election referred to was the general election and not the primary election of the political party."
As the Local Government Election draws near, the members of the Transition Committee and personal Aides in government who are contesting the Election must not panic at all on the issue of resignation as the law has clearly covered them till the right time.
BARR. EKOM NWOKO
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