Falana: How Malami ‘manipulated’ Federal High Court on amended Electoral Act

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Femi Falana
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Human rights lawyer, Femi Falana, on Sunday, accused the Attorney General of the Federation and Minister of Justice, Abubakar Malami, of manipulating the Federal High Court into issuing conflicting decisions on section 84(12) of the new Electoral Act 2022.

Mr Falana said Mr Malami pretended not to be aware of the restraining order of the Federal High Court in Abuja barring him and others from tampering with the legal provision but vowed to implement that of the Umuahia division of the court which ordered the deletion of the clause from the law.

The Senior Advocate of Nigeria, in a statement providing some details of the decisions of three divisions of the Federal High Court on the matter, blamed Mr Malami for allegedly manipulating the court into issuing the conflicting orders. He said Mr Malami, cannot, therefore, pick and choose which of the orders to obey or disobey.

“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,” Mr Falana said.

Background
The division of the federal court in Umuahia, Abia State, had on March 18, nullified Section 84(12) of the Electoral Act — a decision that sits well with President Muhammadu Buhari’s earlier protest against the controversial legal provision.

The novel statutory provision had prohibited political appointees from voting as delegates in party conventions or congresses for the election or nomination of candidates.

Falana: How Malami 'manipulated'Federal High Court over amended Electoral Act

In her verdict, the judge, Evelyn Anyadike, held that the section was “unconstitutional, invalid, illegal, null, void and of no effect whatsoever” and ordered the AGF who was the sole defendant in the suit, to “forthwith delete the said Subsection 12 of Section 84 from the body of the Electoral Act, 2022.”

She anchored her decision on the grounds that the provision conflicted with the constitutional provision that already gives political appointees who intend to contest in an election to resign at least 30 days to the election.

Many lawyers have faulted this reasoning, arguing that political appointees are not part of the category of persons required by the constitution to resign at least 30 days to the election.

Mr Malami was picked as the sole defendant in the suit filed by Nduka Edede, a member of the Action Alliance (AA), a fringe political party in Nigeria.

The AGF has shown extra-ordinary interest in ensuring the striking down of the section 84(12) of the Electoral Act, which would have forced him out of office early to realise what is believed to be his ambition to contest the 2023 governorship election in Kebbi State, his home state.

‘Malami engaged in forum shopping’
But chronicling two previous rulings of the Federal High Court in Abuja and Ibadan, Oyo State, on the same matter, Mr Falana, a Senior Advocate of Nigeria (SAN), said Mr Malami desecrated the office of the AGF by engaging in “forum shopping” to get a favourable verdict.

“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 any other court. It is high time the dangerous manipulation of the Federal High Court was stopped as the nation prepares for the 2023 General Elections,” a statement issued on Sunday by Mr Falana read.

The human rights lawyer pointed out that while the Abuja court barred Mr Buhari, the AGF and the National Assembly from tampering with the newly amended Electoral Act, the Ibadan division of the federal court declined jurisdiction on the matter.

On March 8, 2022, Inyang Ekwo, the judge, had in a ruling on an ex parte application by the opposition Peoples Democratic Party (PDP), held that the amended Electoral Act, having become a valid law, must not be unduly tampered with.

Specifically, the court restrained President Buhari, the AGF and the National Assembly and other defendants in the suit from removing section 84 (12) of the Electoral Act or prevent it from being implemented for the purpose of the 2023 general elections.

However, when the suit with the same issues arose in Umuahia, Mr Falana lamented the AGF who was the sole defendant in the case, refused to draw Mrs Anyadike’s attention to the two preceding rulings of her colleagues in Abuja and Umuahia.

Mr Falana listed the other suits in which the two preceding rulings had been delivered to include one filed in Abuja with suit number, FHC/ABJ/CS/247/2002 (PDP versus President, Federal Republic of Nigeria & 8 others).

The other, he said, was filed in Ibadan, Oyo State, with suit number, FHC/IB/CS/32/2022 (Chief Oyewole Bolanle versus Attorney-General of the Federation).

“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,” Mr Falana said.

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The senior lawyer said the AGF, despite being a defendant in all the cases, did not draw the attention of both Ibadan and Umuahia divisions of the Federal High Court to the Abuja division’s restraining order.

“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,” he added.

He also said the judge in the Umuahia division “ought to have struck out the fresh case before her as it constituted a gross abuse of court process” given that the case pending at the Ibadan judicial division of the court “was well reported in the print and electronic media”.

This, again, highlights the perennial issues of conflicting court orders emanating from the Nigerian courts of coordinate jurisdiction, a matter that the National Judicial Council (NJC) recently sanctioned some judges for.

‘Why Umuahia judgement can’t be enforced’
Hours after the court in Umuahia handed down its verdict, Mr Malami issued a celebratory statement vowing to implement Mrs Anyadike’s orders by deleting the legal provision which he described as “offensive” from the law.

Mr Falana further queried Mr Malami’s speed in enforcing the latest ruling while pretending not to be aware of the earlier restraining order issued against him and others over the same issue.

“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 as soon as possible

“However, the Attorney-General of the Federation (Malami), 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,” the lawyer noted.

Should Mr Malami go ahead to delete the provision as he vowed to do, Mr Falana said the AGF risks facing the consequence of contempt of court.

“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 an interlocutory injunction’,” Mr Falana said.

He added: “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.”

Malami denies Falana’s allegation
Mr Malami on Sunday denied Mr Falana’s allegation when contacted by our reporter on Sunday, insisting that his actions are all in compliance with the law.

“It only takes the figment of the imagination of mischief makers to think or assume that the Attorney General of the Federation and Minister of Justice will stoop so low to do what they claimed,” a statement by Umar Gwandu, the AGF’s spokesperson, read in part.

While pledging Mr Malami’s “commitment to ensuring justice, equity, fair play” in the discharge of his responsibilities, Mr Gwandu said the AGF “was made a defendant in the case” concerning the new Electoral Act.”

He advised Nigerians “to refrain from making ‘unsubstantiably’ fabricated conjectures targeted at mischievously casting aspersions on personalities to score ulterior motives.”

“The Attorney General of the Federation is a strong advocate of equality before the law and non-discriminatory universal application of laws that do not disenfranchise citizens and not contradict the provisions of the Constitution and the extant laws,” the statement added.

Mr Malami had, at other time, insisted that his position on the controversial legal provision was in defence of constitutionalism and protection of the constitutional rights of every Nigerian to vote and be voted for in elections.

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