A Federal High Court in Abuja on Wednesday, April 25, 2018 voided Section 25 of the Electoral Act 2010 Amendment Bill 2018 by which the National Assembly sought to reorder and actually reordered the sequence of the 2019 general elections after the Independent National Electoral Commission (INEC) had announced the sequence of the elections in an explicit timetable that covers the next thirty-five years.
Significantly, in the timetable announced much earlier by the INEC, the presidential election was scheduled to hold first in the sequence of elections. However, in a curious and dramatic amendment by the National Assembly, the election sequence was reordered such that the presidential election was to be the last in the sequence.
President Muhammadu Buhari had, on March 13, 2018, vetoed the Amendment Bill on three grounds, the most significant being the controversial Section 25 which he argued amounted to usurping the constitutional powers and responsibilities of the INEC. Section 25 provided was he clause inserted by the National Assembly by which it appropriated the power to reorder the sequence of elections.
The National Assembly was preparing to override the president’s veto when ACCORD Party, represented by Chief Wole Olanipekun(SAN), proceeded to court for judicial intercession on the constitutionality or otherwise of Section 25 of the Amendment Bill in particular.
The party actually sought for an order of the court to expunge the section from the Bill as it was inconsistent with the provisions of the Constitution that vested and still vest the power to organise, undertake and supervise elections into offices including fixing or assigning days for the elections and the sequence of the same in the INEC.
Such offices into which the INEC is empowered to cover in this circumstance include those of the President and Vice President, Governor and Deputy Governor of a State, membership of the Senate and House of Representatives and the House of Assembly of each State of the federation.
Interestingly, all the parties to the suit were represented by learned silks. The National Assembly (the first defendant) was represented by Mr. Joseph Daudu; the President of the Federal Republic of Nigeria (second defendant) was represented by the Minister of Justice and Attorney General of the Federation, Mr. Abubakar Malami and Mr. Oladipo Okpeseyi; while the INEC (third defendant) was represented by Mr. Femi Falana.
Justice Ahmed Mohammed was saddled with the enormous responsibility of listening to their arguments, distilling their positions and weighing their cited authorities or case laws in accordance with the facts of the matter.
The firework actually began with Daudu raising a preliminary objection which he grounded on the plank of lack of jurisdiction by the court to hear the matter. His argument was that until the Bill becomes an Act, the court’s jurisdiction could not be properly invoked. According to him, “No matter how it is construed, the Electoral Act Amendment Bill as at the day the originating summons was filed, up till date, is a bill.
“It becomes an act upon the happening of two eventualities: where a president, acting under provisions of Section 58(4) assents to the bill. It then becomes an Act of the National Assembly; where he refuses to assent under Section 58(5), the bill is returned to the National Assembly for use of their powers to override. At that point, it remains a bill because there is no guarantee that they will muster the required two-thirds majority to veto it.”
Daudu argued that it was only where the National Assembly successfully used it power to override the president’s veto and transform the bill to an act that the jurisdiction of the court over it would be activated.
But Olanipekun countered, arguing that the legislative power began when the bill was introduced in parliament and ended when it was transmitted to the president. On the basis of which he further argued that the court possessed the jurisdiction to hear the matter and urged it to dismiss Daudu’s preliminary objection.
Malami, who aligned with Olanipekun’s argument, had argued that issue concerning the powers of INEC to fix dates for election had long been settled by the Supreme Court in NASS vs. President, 2003. He had submitted before the court: “My lord the 2nd defendant has filed a friendly process to the case of the plaintiff. I call the process friendly in the sense that we did not file any objection to the Originating Summons. Arising further with the case and position of the plaintiff, we most humbly adopt their submissions in totality. We oppose the preliminary objection filed by the 1st defendant (NASS).
“For the purpose of determining whether the jurisdiction of this court can be properly invoked or otherwise, I submit that what is before your lordship for consideration, is a legislative conduct that is constitutionally recognised. Section 4(8) of the 1999 constitution is express and categorical as far as the invocation of the jurisdiction of this court is concerned. This court has the power to invoke its jurisdiction when the question borders on the issue of legislative powers of the NASS.”
According to Malami, “under section 58 of the constitution, such legislative powers included the passing of Bills by both the Senate and House of Representatives. Once a Bill is passed by the NASS, the logical conclusion is that the legislative powers envisaged in section 4(8) are consummated and whole-heartedly concluded by the NASS, thereby properly invoking the jurisdiction of the court.
“Issue concerning the powers of INEC to fix dates for election had long been settled by the Supreme Court in NASS vs. President, 2003, 9-NWLR, part 824, page 104. The 3rd defendant has issued and released a time-table for the conduct of the 2019 election, an action the 1st defendant is seeking to legislate on. We submit that this is not practicable since the action of INEC is sacrosanct having been clothed with statutory protection.”
All the learned silks agreed with the authority Malami cited to ground the argument that INEC had and still has the constitutional powers to organise, undertake and supervise elections into offices including fixing or assigning days for the elections and the sequence of the same in the INEC. Interestingly, he was in that particular locus classicus as a counsel.
Falana, in his argument before the court, said that contrary to Daudu’s claim that there was no certificate of registration before the court to show that the ACCORD Party was indeed a political party as it (the party) claimed, ACCORD Party was a political party duly registered by the INEC. He further submitted that the party contested in the last election in the country and won seats in the parliament.
Consequent upon consideration of the arguments for and against by the learned silks, Justice Mohammed ruled that the National Assembly has no power to reorder the sequence of elections as announced by the INEC. He granted all of the ten but one reliefs sought by the plaintiff, to wit: the one which sought to restrain President Buhari from assenting to the Bill. According to the judge, granting such prayer was no longer necessary since the president had already declined assent to the Bill.
The issues the ACCORD Party had formulated in its suit marked FHC/ABJ/CS/232/2018, for the determination of the court, which resulted in the concomitant reliefs granted by Justice Mohammed, included whether: A declaration that the 3rd defendant is the only body and or institution constitutionally vested with the powers, vires and duties to organise, undertake and supervise elections to the offices of the President and Vice President of the Federal Republic of Nigeria, the Governor and Deputy Governor of a State, membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation, including fixing or assigning dates of the said elections and sequence of same.
A declaration that the legislative powers vested in the 1st defendant by the constitution do not empower or imbue it with the right, liberty or authority to pass or purport to pass any Bill into Law which attempts to interfere with or undermine the independence of the 3rd defendant, as guaranteed by the content, spirit and tenor of the constitution.
A declaration that the Electoral Act Amendment Bill, 2018, passed by the 1st defendant, particularly clause 25” thereof, which directs, commands and mandates the 3rd defendant to follow a particular sequence of election into the offices of President and Vice President of the Federal Republic of Nigeria, the Governor and Deputy Governor of a State, membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation as provided in the said amendment, is unconstitutional, illegal, ultra vires, null and void, and of no effect whatsoever.
A declaration that by section 153(1)(f) and item 15(a) of the Third Schedule to the Constitution of the Federal Republic of Nigeria 1999 (as amended), the order or sequence of holding the general election is already prescribed such that election to the offices of President and Vice President come first, while elections to other offices follow in the said prescribed order.
A declaration that the amendment to the Electoral Act, 2010 just passed by the National Assembly prescribing the sequence or order in which elections to the office of President and Vice President of the Federal Republic of Nigeria, the Governor and Deputy Governor of a State, membership of the Senate, the House of Representatives and the House of Assembly of each State of the federation should take place, coming as it were after the 3rd Defendant had released or published its time table and order of election into the offices aforesaid cannot apply to 2019 general elections.
A declaration that having regard to the fact that the (i) Provisions of sections 76(2), 116(2), 132(2) and 178(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which mandatorily prescribes the holding of elections to the various offices of National Assembly, State Houses of Assembly, President, Vice President, State Governors and Deputy Governors respectively, to be held on a date not earlier than One Hundred and Fifty days and not later than Thirty days before the expiration of the term of office of the last holder of that office; (ii ) Current National Assembly and various State Houses of Assembly were constituted on 9th of June, 2015 and their tenures will expire and stand dissolved on the 8th of June, 2019; and (iii ) Present/current President, Vice President, Governors and Deputy Governors of all the States of the federation (except Anambra, Bayelsa, Kogi, Edo, Ondo, Ekiti and Osun States) came into office on 29th day of May, 2015, and their tenure will expire on 28th day of May, 2019;
The amendment to the Electoral Act, 2010 (introducing a new Clause 25) just passed by the National Assembly which prescribes the sequence/order in which the general elections into the offices of President and Vice President of the Federal Republic of Nigeria, the Governor and Deputy Governor of a State, membership of the Senate, the House of Representatives and the House of Assembly of each State of the federation should take place is in conflict, or has interfered or curtailed the power, right and discretion of the Independent National Electoral Commission (INEC) generally and in particular, in respect of the schedule or sequence of 2019 general election.
An order setting aside Clause 25 of the Electoral Act Amendment Bill, 2018. The court answered all the questions in the affirmative and granted the concomitant reliefs. Meanwhile, the battle is not yet completely won and lost as the National Assembly has served notice of its intention to head to the Court of Appeal to test the judgment of Justice Mohammed.
Ndubuisi wrote in from Abuja
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