GUEST POST: Kayode Adegbola (@KayodeA) – Do Commissioners Really Need to Resign Before Contesting Gubers?

With a view to resolving the issue of whether there is any legal requirement for Commissioners to resign their position before they can contest for the offices of Governor of a Nigerian State, I conducted a review of The Constitution of the Federal Republic of Nigeria, 1999 (Constitution”); The Electoral Act 2010, as amended (“Electoral Act”), as well as additional documents which include but are not limited to the constitutions of the major Nigerian Political Parties – People’s Democratic Party (“PDP”) and All Progressives Congress (“APC”).

 

The Constitution provides the following as requirements for a person to be qualified for election to the office of Governor of a State[1]:

 

  1. Citizenship of Nigeria by birth;
  2. Attainment of the age of thirty-five years;
  3. Membership of a political party and sponsorship by that political party; and
  4. Education up to at least School Certificate level or its equivalent.

 

In addition, the Constitution confers the following freedom on all persons:

 

Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests.[2]

 

This freedom as stated above may be restricted by “any law that is reasonably justifiable in a democratic society a) in the interest of defence, public safety, public order, public morality or public health; or b) for the purpose of protecting the rights and freedoms of other persons[3]”.

 

However, and quite importantly, according to the Constitution, no person shall be qualified for election to the office of Governor of a State if “being a person employed in the public service of the Federation or of any State, he has not resigned, withdrawn or retired from the employment at least thirty days to the date of the election”[4]. In addition, the Interpretation, Citation and Commencement Section of the Constitution defines “public service of a State” as follows[5]:

 

“public service of a State’ means the service of the State in any capacity in respect of the Government of the State (emphasis mine) and includes service as:

(a) Clerk or other staff of the House of Assembly;

(b) member of staff of the High Court, the Sharia court of Appeal, the Customary Court of Appeal; or other courts established for a State by this Constitution or by a Law of a House of Assembly;

(c) member or staff of any commission or authority established for the State by this Constitution or by a Law of a House of Assembly;

(d) staff of any local government council;

(e) staff of any statutory corporation established by a Law of a House of Assembly;

(f) staff of any educational institution established or financed principally by a government of a State; and

(g) staff of any company or enterprise in which the government of a State or its agency holds controlling shares or interest;

It is not clear whether in drafting the Constitution, a Commissioner was envisaged to fall within the purview of being a member of “public service of a State”, however the sentence “the service of the State in any capacity in respect of the Government of the State” could be read to mean so.

 

The Electoral Act makes no stipulations with regard to the subject of this opinion, and neither do the constitutions of the PDP and the APC. The APC Constitution only requires a candidate for Governorship to satisfy the requirements for elections under the Constitution[6], however I am aware that it is conventional for political parties to release guidelines that may require candidates to resign any public office ahead of primary elections.

 

In my considered view, there is no law in Nigeria which expressly states that a Commissioner must resign from his office in order to contest for the office of Governor of a State; however, if at all, in consideration of the provision of Section 318 (1) as mentioned above, such resignation will not be required until thirty (30) days before the Governorship Election.

 

So, for any Commissioner who is currently in service in any State in Nigeria and seeking to run for Governorship of the State (as is quite common), it remains safe to not resign until at least 30 days before the next Governorship Election scheduled for 28th February 2015. However, I am aware that State Governors often either sack or require Commissioners in their Cabinets to resign their positions in order to prevent the distraction of campaigning as against their service to the State.

 

NOTE: This blog post does not constitute legal advice, but rather is an opinion of the writer on the state of the law regarding the topic. For specific advice, please contact your lawyer.

Follow Kayode Adegbola on Twitter: @kayodea

 

ENDNOTES

[1] Section 177

[2] Section 40

[3] Section 45

[4] Section 182(1)(g)

[5] Section 318(1)

[6] Article 20(2)(ii)(b)

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