2023 Presidency: Senior Lawyers Express Divergent Views Over Emefiele’s Eligibility

As momentum continue to gather for the 2023 general elections, many Nigerians and astute politicians are daily throwing their hats into the rings, claiming abilities and prowess to turn around the fortune of Nigeria as well as return the country to its place of glory among the comity of nations.

Among those who have already declared their intention to take the mantle of leadership from the incumbent, President Muhammadu Buhari include, former Lagos State governor, Bola Ahmed Tinubu, former Vice President, Atiku Abubakar, former Senate Presidents, Pius Anyim and Olusola Saraki.

Meanwhile, those who have not yet declared their intention but already have large group of supporters beckoning on them to join the 2023 presidential race include current Vice President Prof Yemi Osinbajo and current Governor of the Central Bank (CBN), Godwin Emefiele, who is serving his second and last term as Governor of (CBN).

From the north to the south and indeed the six geopolitical zones of the country, people are daily calling and urging the CBN boss to join in the race in order to provide quality leadership for the country and also to consolidate on the achievements of the Buhari administration and turn around the economy.

Emefiele as a bona fide Nigerian, has every right to aspire towards the highest post in the land having met the conditions stipulated in Section 65,105 and 131 of the 1999 Constitution of the Federal Republic of Nigeria which provides that a person shall be qualified for election in the various elective offices if he or she is a citizen of Nigeria and has attained the age of 35years.

However, there seems to be some hurdles before him; one being someone still in public service. Nigeria’s public service rules forbid someone in such position from participating in electioneering campaign or contesting an election.

By virtue of being the Governor of the central bank in Nigeria, Emefiele is not eligible to contest for any election in Nigeria or participate in politics, excepts he resigns from office.

By the provisions of the Central Bank of Nigeria Act, he is statutorily barred from participating in politics or engaging in any other business for that matter.

Section 9 of the CBN Act provide thus: ‘The Governor and the Deputy Governors shall devote the whole of their time to the service of the Bank and while holding office shall not engage in any full or part-time employment or vocation whether remunerated or not except such personal or charitable causes as may be determined by the Board and which do not conflict with or detract from their full-time duties.’”

Even Sections 66, 107, 137, and 182 of the Constitution disqualifies any person employed in the civil or public service of the federation or state and does not resign, withdraw or retire from the employment before the election.

Similarly, the Electoral Act 2022 recently signed into law by President Muhammadu Buhari, appears to be another hurdle before Emefiele if he is to contest the presidency in 2023.

Section 84 (12) of the Electoral Act 2022, stipulates 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.”

The provision affects political appointees such as ministers, special advisers and commissioners, among others, who may wish to run for elective offices.

But the electoral provision is in conflict with Section 66(1)(f) of the 1999 Constitution (as amended) which compels public officers seeking elective positions to vacate office 30 days to the election.

A Supreme Court judgment in the case between Kayode Fayemi vs Segun Oni in 2019 interpreted that section of the constitution as excluding appointees such as ministers or special advisers.

THE WHISTLER spoke to some senior advocates of Nigeria and other top lawyers to explain if the CBN governor qualifies is a political appointee or a public officer.

The two scenarios above however have thrown up the issue of eligibility of Emefiele for the 2023 Presidential poll, with lawyers standing along the two sides of the divides.

While to Umeh Kalu, SAN and Tochukwu Ohazurike, the CBN governor is not a political appointee and as such is eligible to contest the 2023 poll, to Johnson Usman,SAN, Chief Mike Ozekhome, SAN and Oluwaleke Atolagbe, the CBN boss is appointed by the president hence he’s an appointee and affected by the provision of section 84(12).

However, to Dr. Sunny Ajala, SAN, either way Emefiele can manoeuvre his way.

According to Umeh Kalu, SAN, the CBN governor is not a political appointee but one who is under a paid employment that has tenure.

“You know, when we talk about political appointee, what gets into our minds are those commissioners, appointees of government agency and all that, those are the ones we have in mind.

“But for the CBN governor, one would not know, but I don’t see him as a political appointee, so I don’t think he will be affected by the electoral act.

“Every appointment has its terms and conditions, even if you employ somebody in your office, you can fire the person; so the issue should not be whether he can be fired or not; the terms of the engagement will determine whether you are a political appointee or not.”

Arguing in the same line, Ohazurike, who is the Legal Director, Centre for Transparency Advocacy, stated that the CBN governor cannot be regarded as a political appointee.

He said, “The CBN governor cannot ordinarily be called a political appointee. How do I mean? Political offices are created at the liberty and mercy of the president. But the office of the CBN governor was created by law. So it would always be there.

“Just as President Buhari came and created Ministry of Humanitarian Affairs and Disaster Management, he can create any office. Those offices are not created by law, they’re the ones that are political offices ordinarily. You can create as many special advisers as you want. But the office of the CBN governor is created by law, “he said.

On the argument that since the CBN governor is appointed by the president, he is automatically a political appointee, Ohazurike said, “We run an executive system of government in Nigeria so apart from the president and the vice president that were elected, every other person in the executive is appointed by the president.

“But the CBN office is tenured just like some other offices created by law. They are created by law and tenured by law.”

However, opposing this view, Usman, SAN, submitted that the CBN governor is a political appointee and the office is not included among public officers mentioned in the constitution.

“He’s (CBN governor) a political appointee; he’s an appointee even though the central bank is a creation of the statute, it was created by an act of the National Assembly but appointment to that office is political. It’s not an elective office and he’s not a civil servant. So, if you’re not a civil servant, you’re an appointee. “

Similarly, Chief Mike Ozekhome, SAN, said the CBN governor is an appointee of the president and can be fired by the man who appointed him.

“He is appointed by the president, the president appoints and can dismiss him. He is a mere political appointee, he is not a civil servant, he can be appointed and dismissed by the president at any time.

“He is a political appointee in the sense that any qualified person who has the qualifications for the office under the CBN Act; any person who meets those qualifications may be appointed by the president and the person holds his appointment on the whims and caprices of the president who can also remove such a person at any time.

“That means such a person is not in any pensionable appointment like a civil servant who is pensionable, whose term of pension is known, gratuity calculated and all that all”.

Ozekhome concluded that the CBN Governor being an appointee, he is affected by the new electoral law that bars all political appointees from voting or being voted for.

On his part, Atolagbe, an Assistant-Counsel, International Criminal Court, Hague, clarified that, “By virtue of Section 8 of the Central Bank of Nigeria Act, the Governor of the Central Bank is appointed by the President of the Federal Republic of Nigeria subject to confirmation by the Senate. Thus, that the Governor of the Central Bank is an appointee of the President is not in dispute.

He clarified further that unlike some aides of the President or other elected officials, the appointment of the Governor of the CBN is statutory and tenured.

“He is appointed for a period of five years which is renewable only once. For other civil servants this is not the case. I believe that the CBN Governor therefore falls within the category of persons that the newly amended Electoral Act provides that they cannot vote as delegates or be voted for the purpose of being candidates for an election. “

However, Dr. Sunny Ajala, SAN, noted that he would be reluctant to say yes, as to whether the CBN governor is a political appointee since the electoral act is in a state of fluid.

“I’m yet to get the gazette copy for serious scrutiny. “Therefore I would refrain from speaking about a document that I don’t have. That would be speculative analysis. More fundamentally, Mr. Emefiele has not said he’s contesting for the office of president of Nigeria.”

But whether the CBN governor is a political appointee or civil servant, Usman advised that if he’s interested in running for president, he has legal room to maneuver within the provision of the electoral act, since the relevant law for political appointees is the Section 84(12) of the electoral act 2020 as amended.

“The provision of section 84(12) is ambiguous in the sense that it did not provide the time line within which those affected can resign. Since the provision of the constitution is inapplicable to political appointees, it means they can resign even a day to the election.

“Because you cannot, by parity of reasoning, say the provision of the constitution is applicable. No, the Supreme Court has said it’s inapplicable to political appointees; so parity of reasoning will not come here.

“But the simple and grammatical interpretation is that they can resign a day before the election. Because I have not seen any provision in the electoral act that stipulates the days within which they must resign.

“That being the case, they have to resign before the election. If you resign a day before election you have resigned. If you resigned 30 days before election, you have resigned. But in order to avoid any unnecessary arguments in court, I would advise any of my clients who wants to contest to resign at least 30 days before the election.”

Giving further explanation, he said the “simple and literal interpretation” of the Section 84(12) of the Electoral Act 2022 is that any appointee who does not resign his appointment and decided to contest for any election, his election will be declared a nullity if the matter is taken to court by an aspirant who contested against him.

“So failure to resign before contesting would have a fatal effect, and it’s like not contesting at all,” he said.