Isah Jibrin from Kaduna
The cases of **Ojukwu v. Yar’Adua (2009)**, **Amaechi v. INEC (2008)**, and **Amadi v. INEC (2012)** are landmark decisions in Nigerian jurisprudence that address the constitutional rights of individuals, particularly civil servants, to participate in the electoral process, either by voting or contesting for elective positions.
These cases provide a framework for analyzing whether a civil servant must resign their appointment to contest an election or exercise their voting rights.
Below is a detailed analysis of these cases and their implications for the constitutional rights of civil servants in Nigeria.
*1. Ojukwu v. Yar’Adua (2009) 12 NWLR (Pt. 1154) 50**
This case primarily dealt with electoral disputes and the interpretation of constitutional provisions regarding the eligibility of candidates to contest elections. While the case did not directly address the issue of civil servants resigning to contest elections, it emphasized the importance of upholding constitutional rights, including the right to participate in the electoral process. The Supreme Court reiterated that the Constitution is the supreme law, and any law or regulation that contradicts it is void to the extent of its inconsistency.
**Relevance to Civil Servants:**
The case underscores that constitutional rights, such as the right to vote and be voted for, are sacrosanct. If a civil servant’s right to contest an election is constitutionally guaranteed, any requirement for resignation must be carefully scrutinized to ensure it does not unduly infringe on this right. If a civil servant have the right to vote without resigning, he ought to also have the right to contest an election without resigning.
There are numerous cases where serving elected representatives, while as Members of the House of Representatives and as Governors, sought election as Governors and Senators respectively without resigning from office because there is no Law in Nigeria today that requires them to so resign.
*2. Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227**
In this case, the Supreme Court held that the right to contest an election is a constitutional right that cannot be easily taken away. The court emphasized that the Constitution is the grundnorm, and any law or regulation that seeks to limit constitutional rights must be strictly interpreted in favor of the citizen. The court ruled that the plaintiff, Rotimi Amaechi, was entitled to be recognized as the candidate of his party, even though he did not personally contest the primary election.
**Relevance to Civil Servants:**
The case reinforces the principle that constitutional rights, including the right to contest elections, are fundamental and cannot be arbitrarily restricted. If a civil servant is constitutionally qualified to contest an election, any requirement for resignation must be justified by clear and unambiguous statutory provisions. The court’s decision suggests that such restrictions should be minimal and not unduly burdensome.
*3. Amadi v. INEC (2012) 17 NWLR (Pt. 1329) 420**
This case addressed the issue of whether a civil servant must resign their appointment before contesting an election. The court held that the constitutional right to contest an election is paramount and that any law or regulation requiring resignation must be consistent with the Constitution. The court ruled that the plaintiff, a civil servant, was not required to resign his appointment before contesting the election, as this would amount to an unjustifiable infringement on his constitutional rights.
**Relevance to Civil Servants:**
The case is directly on point and provides a compelling argument that civil servants do not need to resign their appointments to contest elections. The court’s reasoning was based on the supremacy of the Constitution and the need to protect citizens’ fundamental rights. The decision suggests that requiring resignation would create an unnecessary barrier to political participation and is inconsistent with the spirit of the Constitution.
The argument that a civil servant does not have to resign their appointment to contest an election is grounded in the following principles:
1. **Supremacy of the Constitution:**
The Nigerian Constitution is the supreme law, and any law or regulation that contradicts it is void. The right to vote and be voted for is a constitutional right under Sections 40 and 42 of the 1999 Constitution (as amended). Any requirement for resignation must be consistent with these provisions.
2. **Minimal Restriction on Fundamental Rights:**
The courts have consistently held that fundamental rights, including the right to contest elections, should not be unduly restricted. In **Amadi v. INEC**, the court ruled that requiring resignation would impose an unnecessary burden on civil servants and infringe on their constitutional rights.
3. **Equality and Non-Discrimination:**
The Constitution guarantees equality before the law and prohibits discrimination. Requiring civil servants to resign while allowing other categories of workers to contest without resignation would amount to discrimination and violate the principle of equality.
4. **Precedent from Judicial Decisions:**
The decisions in **Amaechi v. INEC** and **Amadi v. INEC** provide strong judicial support for the argument that civil servants do not need to resign to contest elections. These cases emphasize the importance of protecting constitutional rights and ensuring that any restrictions are reasonable and justifiable.
5. **Public Policy Considerations:**
Encouraging political participation by civil servants can enhance democracy and bring diverse perspectives into governance. Requiring resignation may deter qualified individuals from contesting elections, thereby limiting the pool of candidates and undermining the democratic process.
The electoral law is for all persons, civil servants inclusive. The space for political participation must be expanded publicly to enable people from all walks of life to actively participate in politics.