OPEN LETTER TO PRESIDENT OF THE NLC

"OPEN LETTER TO PRESIDENT OF THE NLC: BOTH PUBLIC AND CIVIL SERVANTS ARE PROHIBITED FROM PARTICIPATION IN POLITICS WHILE IN ACTIVE SERVICE (THE PUBLIC SERVICE RULES, 2008 IS A PECULIAR SPECIES OF ADMINISTRATIVE RULES, JUST LIKE THE NIGERIAN FINANCIAL REGULATIONS OF NIGERIA, 2023 WHICH GOVERNS ESTACODES)"

By Dr. Tonye Clinton Jaja.

Dear President of the Nigerian Labour Congress (NLC),

According to recent media reports, you are quoted as saying that both public and civil servants are permitted to actively participate in politics concurrently while they are still in active service without the need to tender their letters of resignation.

According to the reports this is your own interpretation of the judgment of the Supreme Court of Nigeria in the case of 

 INEC & ANOR. V MUSA & ORS. 

Legalpedia Citation: (2003) Legalpedia (SC) 71161

In the Supreme Court of Nigeria

Fri Jan 24, 2003

Suit Number: SC.228/2002

CORAM.

With the greatest respect, the above named judgment did not categorically state that both public or civil servants are permitted to actively participate in politics without first resigning their appointments.

Let me start by explaining that both the Public Service and Civil Service as a DIFFERENT CATEGORY OF EMPLOYEES OR LABOUR WORKERS as spelt out in the Constitution of the Federal Republic of Nigeria, 1999.

Section 169 of the Nigerian Constitution, establishes the Public Service as the "service of the State" in any capacity for the government. This broad concept includes employees of the Civil Service, the Armed Forces, Nigerian Police, Parastatals, Statutory Corporations, and other institutions established by law at the state or federal level."

"Section 318 of the 1999 Constitution: provides the formal definition, establishing the civil service as staff within the executive branches of the federal government".

The common feature between both is that the employment enjoys statutory flavour unlike other forms of employment that can be terminated at will or in accordance with the Contract of Employment.

As a sign of the unique nature of the employment of both public servants and civil servants, the National Industrial Court of Nigeria (Enugu Division) recently passed a landmark judgment in the case of SUIT NO. NICN/EN/04/2025,

DR. (MRS) ANTHONIA CHIEBONAM EKWO…………CLAIMANT

AND

INDEPENDENT NATIONAL ELECTORAL COMMISSION

THE CHAIRMAN INDEPENDENT NATIONAL ELECTORAL COMMISSION-DEFENDANTS

In that judgment the judge held that Section 2 of the Public Officers Protection Act, 1961 which that infractions of public officials must be reported within three months is unconstitutional.

The reason for the said decision is that provisions of any statute cannot be interpreted in a manner to violate labour and employment laws and the spirit of the Third Alteration to the Nigerian Constitution.

The lesson derived from this landmark judgment which differed and distinguished itself from an earlier judgment of the Supreme Court of Nigeria, is that the terms and conditions of the employment of Public and Civil Servants is different from other known forms of employment.

The consequence is that the judicial attitude towards interpretation of both constitutional and statutory provisions that relate to both Public and Civil Servants is unique and different.

For example, in the case of Balarabe Musa vs. INEC and Others (2003), it was held that:

"FEDERAL GOVERNMENT CIVIL PUBLIC SERVICE RULES – RULES 04421 AND 04422 OF THE FEDERAL GOVERNMENT CIVIL PUBLIC SERVICE RULES

“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 organization;

(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 political candidates. Nothing in this rule shall be deemed to prevent an officer from voting in an election.

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.” PER UWAIS, JSC

It was further held that:

"CIVIL PUBLIC SERVICE RULES – WHETHER THE CIVIL PUBLIC SERVICE RULES ARE LEGISLATION AS PROVIDED BY THE CONSTITUTION OF FEDERAL REPUBLIC OF NIGERIA

“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.” PER UWAIS, JSC

Taken together, from the foregoing it can be deduced that the Public Service Rules, 2008 is a distinct and unique species of administrative  Rules which is legally binding and enforceable upon both public and civil servants considering the unique nature of their employment.

Another unique and distinct administrative set of Rules that applies to both public and civil servants is ESTACODES under the Financial Regulations of Nigeria, 2023

"Estacode refers to the allowance or stipend provided to public officials who are travelling outside their usual work location, typically to another city or country."

Can it be argued that payment of ESTACODES are illegal because it is not contained inside either a primary legislation or subsidiary legislation but only in the Financial Regulations of Nigeria, 2023 which is not enacted pursuant to any primary legislation or the Nigerian Constitution?

The Public Service Rules, 2008 is a legally binding set of Rules that applies to both public and civil servants and it prohibits  active participation in politics by both public or civil servants (unless they first tender their letters of resignation).

To conclude, reference is again made to the case of Balarabe Musa v. INEC and Others (2003), one of the ratio decidendi stated as follows:

"The golden and main rule of the interpretation of statutes, including the Constitution, is the intention of the lawmaker. Once the intention of lawmaker is clear, resort cannot be made to any liberal interpretation of the Constitution. This is because a liberal interpretation of the Constitution beyond and above the intention of the lawmaker will amount to the Judge making law”. PER NIKI TOBI, JSC

Based on a combined reading of the above named Ratio read in combination with Paragraph 1, Code of Conduct for Public Officers, Fifth Schedule of the Nigerian Constitution as well as Section 5 of the Code of Conduct Bureau and Tribunal Act, 2006, engagement in politics can be defined as one of the activities that is likely to put a public or civil servant in a position of conflict of interests.

This is because any public or civil servant who actively engages in partisan politics (without rendering a letter of resignation), of such a person wins an election would have divided loyalties, torn between adherence to the manifesto of his or her political party or the political party of the President or Vice-President or other officials whom he is serving as a full-time public or civil servant.

On this note, I rest my case.

Yours faithfully,

Dr. Tonye Clinton Jaja,

2nd September 2025.