CIVIL SERVANTS AND POLITICS
The Supreme Court in the case of I. N. E. C v. Musa (2003) 1 SC (Pt. 1) Pg. 118 paras. 25 - 40 Ayoola (J.S.C) delivering the lead judgment Held that:
“However, although section 40 of the constitution entrenched the right of every person to form or belong to a political party, it is clear from the proviso to that section and sevral other provisions of the constitution that the makers of the constitution did not opt to leave political parties unregulated by the state. Regulation of political parties by the state manifests in the fact that the constitution itself has set conditions for the existence and recognition of political parties and empowered the National Assembly to legislate for the regulation of political parties that may have already fulfilled the conditions of eligibility to function as political parties as prescribed by section 222 of the constitution. Regulation of political parties by the state therefore comes in two forms, namely: regulation directly by the legislature or other agency of the state as may be permitted by the constitution. It follows that any attempt to regulate political parties not by the constitution itself or by its authority is invalid.
(Underling mine for emphasis)
An understanding of the position of law as regards whether or not civil or public servants are allowed to hold, participate and form political parties can be seen in the concurring judgment of M. L. Uwais, CJN (As he then was), when he agreed with the lead judgment of Ayoola (J.S.C) and posited in the Supreme Court in the case of I. N. E. C v. Musa (2003) 1 SC (Pt. 1) Page 133, paras. 20 – 40 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, 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.”
“It is important to mention that the provisions of the Civil (Public) Service Rules have not been challenged in this case and therefore their validity is not in issue for determination by this Court. Reference to the restriction had been made merely in passing by learned counsel for the 1st Defendant/Appellant in order to canvass the validity of Section 79 subsection (2) (c) of the Electoral Act, 2001.”
“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, I hold that both the provisions of Section 79 subsection (2) (c) of the Electoral Act, 2001 and guideline No. 5 (b) are inconsistent with the constitution.”
(Underling mine for emphasis)
In line with the foregoing it is clear that this case did not expressly hold that a civil or public servant can hold, participate and form political parties, as the Civil (Public) Service Rules has not been challenged in a competent court of law on Rules 004421 and 04422 of the Federal Government Civil (Public) Service Rules.
However, the question that comes to mind, is whether or not it is possible to waive one’s constitutional right as enshrined in Section 40 of the 1999 constitution, by accepting the job offer to become a Civil or Public Servant, because of the rules that guides the Civil or Public Service?
Per ESO, J.S.C in the Supreme Court in the case of Ariori & Ors v. Elemo & Ors (1983) LPELR-552 (SC) answers this question in Pp. 20 - 24, paras. A -D, Thus:
"what is waiver"? Rather than define the word, it is probably appropriate just to describe its concept. For as Pollock said, Waiver is a simple and wholly untechnical concept perhaps the most powerful and flexible instrument to be found in any system of Court jurisprudence. The concept of waiver must be one that presupposes that the person who is to enjoy a benefit or who has the choice of two benefits is fully aware of his right to the benefit or benefits, but he either neglects to exercise his right to the benefit, or where he has a choice of two, he decides to take one but not both - see Vyvyan v. Vyvyan 30 Beav 65 as per Sir John Romilly M.R. at p.74 (reported also in 54 E.R. 817). The exercise has to be a voluntary act. There is little doubt that, a man who is not under any legal disability, should be the best judge of his own interest. If therefore, having full knowledge of the rights, interests, profits or benefits conferred upon or accruing to him by and under the law, but he intentionally decides to give up all these, or some of them, he cannot be heard to complain afterwards that he has not been permitted the exercise of his rights, or that he has suffered by his not having exercised his rights. He should be held to have waived those rights. He is, to put it in another way, estopped from raising the issue. See also Halsbury Laws of England 3rd Edition Vol. 14 paragraph 1175.
The next enquiry is the extent to which a person could waive rights conferred upon him by law. When a right is conferred solely for the benefit of an individual there should be no problem as to the extent to which he could waive such right. The right is for his benefit. He is sui juris. He is under no legal disability. He should be able to forgo the right or in other words waive it either completely or partially, depending on his free choice. The extent to which he has forgone his right would be a matter of fact and each case will depend on its peculiar facts. A simple example could be seen in a right which has been conferred by contract. A person who is a beneficiary to a contract, whereby the benefit is principally for him, has full competence to waive that right. What obtains in the case of a contract should go for benefits conferred by statute. A beneficiary under statute should have full competence to waive those rights once the rights are solely for his benefit. The only exception I can think of is where the statute itself forbids waiver of its statutory provisions.
But, how about rights conferred by the Constitution? Could these be waived? …As a person can waive a right conferred upon him by a statute so can he waive his constitutional right. Thus, in the case of the United States v. Gill (1931; D.C.) 55F 2nd 399 reported also in 129 A.LA. p.574, it was held that a constitutional right to speedy trial should be equated with a right conferred by statute. It could be waived at any time and it is to be regarded as a right which is personal to the litigant alone, that is one in which the State should have no interest. See also State v. McTague(1927) 173 Min. 153, where the Court held that though the right to a speedy trial is valuable and it will be zealously guarded by the Courts with resolute courage, " it is the protection of personalrights, not to embarrass the administration of the law nor to defeat public justice;" and it may also be waived.
The next question that comes to mind upon the above stated position that Constitutional rights can be waived, is that, can “voluntary” as stated in the aforementioned case be implied or it has to be express?
The court in the case of Co-operative Development Bank v. Joe Golday Co. LTD & ORS (2000) LPELR-6813 (CA) pg. 45, paras. A – C defined voluntary thus:
The word 'voluntarily' means 'freely' or 'of one's' own accord'. When used in its ordinary sense, the word means 'willingly' or 'without compulsion'. See Ballentine's Law Dictionary, by William S. Anderson, Third Edition at page 1350. In Black's Law Dictionary, Sixth Edition at page 1575, voluntarily means 'intentional and without coercion'
In line with the foregoing positions, and within the context of the Civil (Public) Service Rules. Subject to the decision of the Court in a later date on the interpretation of Rules 004421 and 04422 of the Federal Government Civil (Public) Service Rules or any alike rule in the respective States of the Federal Republic of Nigeria, whether or not it is against the spirits of the 1999 constitution of the Federal Republic of Nigeria and should be declared void.
I am of the opinion that the rights of persons as enshrined in Section 40 of 1999 Constitution can be waived, on the condition that it is voluntary, and same cannot be implied. That is, there must be an express provision in the letter of acceptance to the person aspiring to be a Civil or Public Servant stating that the person waives his or her rights as enshrined in the 1999 constitution whenever it is inconsistent with the Civil (Public) Service Rules, which governs his or her employment in the Civil or Public Service.
SPA,Ogun State Universal Basic Education Board. NCE Primary Education Studies/Mathematics Bsc Psychology TRCN Certified Teach For Nigeria Fellow
2yGoing by the aforementioned instances and stands of CFRN on the legal implications particularly on lost of rights as enshrined in CFRN through a voluntary action and decision via waiving one rights for another by accepting to work as a Public/Civil Servant. Participation or joining a political party by a Public/Civil Servant is does at one peril. Hmmmmm, #toserveNigeriaisnotbyforce
Legal Practitioner & Intellectual Property Expert
3yIn addendum 1. In line with section 40 of the CFRN, every person (including civil servants) has the right to freely associate which includes the right to join any political party of ones choice. 2. The right to freely associate can only be restricted in line with section 45 of the CFRN. 3. According to section 45, the instrument used to restrict such right must be a LAW that is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public health or public morality or for the protection of the rights and freedom of other persons. I commend Abdulkareem v. LSG (2016) ALL FWLR (PT.850) PG. 101. 4. Going forward, the civil service rules is a mere regulation by an agency of the executive arm and same does not pass to be referred to be a law as envisaged by section 45 of the CFRN. 5. It is my submission that every civil servant in Nigeria has the right to freely associate politically.