By Funsho Jegede
The argument against civil servants’ participation in politics is already invalidated by constitutional interpretation delivered by the Supreme Court in 2018, stakeholders and lawyers have clarified.
The clarification is coming against the background of alleged involvement of some civil servants in politics, an apparent attack from fellow contestants who are possibly afraid of the strengths and connections of such civil service personnel.
Previous reports have however copiously shown that the civil service regulation which barred civil servants from participating in politics is against constitutional right of this group of Nigerians as guarranteed by the constitution. The Supreme Court ruling has therefore nullified that public service regulations or any other regulations that purported to take away that constitutional rights.
A January 2018 Supreme Court judgement ruled that civil servants could be members of political parties of their choice as provided for in the 1999 Constitution. The Supreme Court ruling was part of its clarification of the November 8, 2002 judgement in which it nullified most of the guidelines issued by the Independent National Electoral Commission (INEC) on registration of new political associations.
“The constitution of the country is very clear about this. Only if you are contesting in a general election that you are mandated to resign from service 30 days to the general elections, that is all; and I can serve you with judgements upon judgements of the Supreme Court about this. Even the APC guidelines allow you to contest primaries and go back to your work,” a person affected by the development noted.
This issue came up for consideration in the Supreme Court case of the INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) and ATTORNEY GENERAL OF THE FEDERATION VS ALHAJI ABDULKADIR BALARABE MUSA, ALHAJI KALLI ALGAZALI & 3 OTHERS. SUIT NO:SC.228/2002.
In that case, the supremacy of the Constitution against any other law or regulations, was upheld. In concurring with the judgement of his learned brother Ayoola, JSC, and in response to the INEC counsel objection to the Civil or public Servant Membership of a political party, Justice M.L. Uwais, CJN, as he than was, stated the following ”
The civil( public) Service rules place some restrictions on public office holders including civil servants, with regard to participation in politics or political activities. For instance the current Federal Government civil (public) Service rules provide in rules 04421 and 04422 as follows :- 04421. No officer shall without express permission of the Government, whether on duty or leave of absence:
(a) hold any office, paid or unpaid, permanent or temporary, in any political organisation
(b) offer himself or nominate anyone else as a candidate for any elective office including membership of a Local Government Council, State or National Assembly
(C) engage in canvassing in support of a political candidates. Nothing in this rule shall be deemed to prevent an officer from voting in an election.
Rule 04422. Resignation necessary before seeking elective public office. Howbeit, any officer wishing to engage in partisan political activities or seek elective public office shall resign his appointment forthwith”. Justice Uwais went on to say ” the civil (public)service rules are not legislation per se as provided by the constitution nor subsidiary legislation, as they are not made under any enabling Act or law.
These limitations are emphasised by rule 01001 of the rules which provides in respect of some categories of some public office holders that these rules only apply to the extent that they are not inconsistent with the provisions of the Constitution of the Federal Republic of Nigeria in so far as their conditions of Service and any other law applicable to these officers are concerned”.
His Lordship continue by quoting section 40 of the constitution of the Federal Republic of Nigeria, 1999 which provides that 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. In his lucid characteristics, Justice Uwais than concluded that ” the provisions of section 40 of the 1999 constitution are clear. Their import is to allow ” every person” including public office holders and civil servants, the freedom to assemble freely and associate with other persons to form or belong to any political party, or trade union or any association for the protection of his interests.
The section has made no exception and there is no proviso therein limiting its application to civil servants or public officers. Since section 40 of the 1999 constitution has specifically allowed every person the right to assemble and associate with any other persons in order to inter alia form or belong to any political party for the protection of his interests” any law or regulation to the contrary is inconsistent wih the provision of the constitution.
Therefore based on the above case law, civil or public servants are allowed to participate in political activities including belonging to a political party under the provisions of section 40 of the 1999 Constitution.”
Meanwhile, Daily Trust had also reported that lawyers said no law expressly forbids civil servants from participating in politics provided they resign their office 30 days before contesting for an elective position.
The lawyers said the provisions of sections 66 (1); 107 (1) (f); 137 (1) (g); 142(2); 182 and 187(2) of the 1999 Constitution are consistent that an individual in public service must resign their position 30 days to an election for all the various positions such as: Senate, House of Representatives, House of Assembly, Governor and Deputy Governor, President and Vice President.
In his view, Ahmed Raji (SAN) said the Supreme Court had pronounced on the matter that every Nigerian, including civil servants, can associate freely in political parties.
“They can retain their position as candidates but before the election they must resign, that is what the constitution says,” he said.
Also, former Attorney General of Ekiti State, Dayo Akinlaja (SAN) said no law bars civil servants from belonging to political parties and participating in political activities.
“Interestingly enough, when I was Attorney General, I had to give an advice about it that there is no such law,” he said.
“Take for instance that the constitution says that if anybody wants to contest for an election, the person has to resign from office within a given period of time. So that to my mind suggests that the law envisages that the person must have been participating in politics one way or the other while in office. So, it is only when the person now wishes to contest that the law would require him or her to resign,” he added.
Citing Section 222 of the Constitution, Hamid Ajibola Jimoh Esq. said it is the right of every Nigerian, including civil servants, to belong to political parties except those exempted by nature of their work