This case which commenced at the Federal High Court, Abuja on June 21st, 2018 is set to conclude by April 12, 2019 at the Supreme Court when the Court breaks for Easter. Oni had challenged Fayemi’s eligibility to participate in the APC Governorship primary held on May 12, 2018. Dr. Kayode Fayemi, who then was serving as the Minister of Mines and Steel Development did not resign his appointment before the primary election contrary to the Party Guidelines. Article 2 of the APC’s 2014 Guidelines for the Nomination of Candidates for Public Office under Section 2 Minimum Requirements states amongst others that an aspirant seeking public office on the platform of the party shall not have:
• Remained as an employee of the Public Service within 30 days preceding the date of an election
• Been convicted for embezzlement or fraud by a Judicial Commission of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, or any other Law by the Federal or State Government which conviction has been accepted by the Federal or State Government.
Oni’s claim is that Fayemi was in violation of these two provisions having failed to resign his appointment as a Minister and having been indicted by the Oyewole Judicial Commission of Inquiry which indictment had been accepted via a White Paper issued to that effect.
Fayemi’s counterclaim is that he is not covered by the provision of the Guideline not been an employee in the Public Service and also not affected by the Oyewole indictment which cannot be equated to a regular court.
The Federal High Court sitting in Ado Ekiti gave judgement on December 10, 2018 in favour of Fayemi by declaring that as a Minister, Fayemi was not employed in the Public Service since he holds the position of Minister at the pleasure of the President and the fact that the plaintiff failed to provide Fayemi’s letter of appointment while asserting his status as an employee in the Public Service of the Federation. The Court also ruled that the conviction under the Oyewole Commission of Inquiry cannot be viewed as a criminal trial and conviction.
Oni appealed the ruling to the Court of Appeal in Ado-Ekiti. The issue here became whether or not a Minister is in the Public Service and whether or not, the Guidelines had intended a regular court conviction when it states that “which conviction has been accepted by the Federal or State Government”. A regular court conviction does not require any endorsement by the Federal or State Government to have the force of law. According to Oni, the authors of the APC Guidelines could not have been contemplating only a regular court conviction given the requirement of Federal or State Government acceptance and this in fact is to be expected from a Party that set out to fight corruption.
Fayemi’s defense is that he is protected by Sections 182 (but which refers only to the General Election by using the word “candidate” contrary to the Guideline which uses the word “aspirant”) and 318 of the Constitution (which inclusively defines “Public Service”).
The Court of Appeal gave a unanimous verdict on February 12, 2018 in favour of Fayemi. The Appeal Court questioned the validity of the APC Guidelines by declaring that “Generally, a party’s Constitution and Guidelines on qualification or disqualification for election to the office of Governor or any other elective office on its platform to be valid, must conform to the provisions of Section 177 and 182(1) and similarly provisions of the 1999 Constitution. A political party’s Guidelines on the process of its primary elections of its candidate of general election must conform with the 1999 Constitution and the Electoral Act 2010 as amended”.However, the validity of the Guidelines was NOT an issue before the Appeal Court since none of the parties to the case had challenged the validity. The Court also ruled that “It is clear from the foregoing that the 1st respondent as Minister of Mines and Steel, even though, in the Public Service of the Federation was not an employee in the Public Service. Therefore Article 2 of the 2014 Guidelines was not applicable to him”.
On the issue of indictment, the court ruled that “A Judicial Commission of Inquiry is not a Court of competent jurisdiction”.
The case has now gone before the Supreme Court for final determination.
The key issue here is interpretation. Is a Minister an employee in the Public Service? If the Court says a Minister does not need to resign before participating in a party primary, it would mean other public officers such as the Military, the Police, even the Justices and Judges inthe Courts up to the Supreme Court can also participate in electoral politics at aspirant level without resigning. So, what about level playing field which is what the Party would seem to have set out set out to establish in its competitive politics among its members with that provision in the Guideline?
The learned Justices relied on Chambers Dictionary to interpret the word “employee” as contemplated by the Guideline. They said “The Chambers Dictionary defines the noun employee as a person employed for wages or salary”. They did not cite which edition they lifted this definition from. But Chamber Dictionary (13th Edition) defines the noun employee as“a person who works for another in return for payment”.
A critical element lacking in the decision of the Court of Appeal is that they failed to ask themselves and resolve the query
A. “WHAT IS THE PURPOSE (or objective) BEHIND THE PARTY GUIDELINES TO THE EFFECT THAT AN ASPIRANT BEING AN EMPLOYEE IN THE PUBLIC SERVICE OF THE STATE OR FEDERATION CANNOT CONTEST A PRIMARY ELECTION”
Had they properly guided themselves in this way, they would naturally have been led to the next query
B. “WHICH CLASS OF PERSONS DOES THIS PROVISION OF THE PARTY GUIDELINES TARGET OR CONTEMPLATE?”
And this second query should have inexorably led to the last and final query
C. “DOES A SERVING MINISTER OF THE FEDERAL REPUBLIC OF NIGERIA COME WITHIN THE CONTEMPLATION OF THE GUIDELINES?”
This line of enquiry would naturally have eliminated
- Civil Servants subject to the Civil Service Rules of State or Federal Governments
- Persons in the Private Sector who are employees of companies
- Academics and Lecturers on full time service contracts
And every other person(s) whose term of employment either requires full time service, on a salary and the terms of the employment are such that you cannot be in such employment and participate in electoral politics.All these class of persons are regulated by the terms of the employment itself.
Given the above scenario, it is inconceivable that the Party guidelines would be inapplicable to a serving minister or a political office holder whether employed or appointed and whether remunerated or not.
It is simply absurd and contrary to good sense and public order and due process that whilst being a Minister a person should be permitted to be an aspirant and to contest for office of governor of a state in a party primary.To assert otherwise would defeat the intention of the Party Guidelines (which must be to ensure that all aspirants contest under fair rules that ensure some measure of equality before the electorate) in other words, a“level playing field”.
The failure of the Court of Appeal to embark on and discover the intention behind the Party Guidelines and then to give effect to that intention; is a regrettable abdication of their Judicial duty.
As the final appellate court, the Supreme Court is well positioned to correct this grievous lapse of the Court of Appeal and this is the challenge the Segun Oni appeal to the Supreme Court represents.