In this report, AHURAKA YUSUF ISAH writes that as the National Assembly amended the Electoral Act to change sequence of the 2019 general polls, it is highly probable that President Muhammadu Buhari would not assent to the Bill, just as the NASS may override President’s veto; and the ding-dong that follows shall be resolved if the Independent National Electoral Commission (INEC) approaches the court for judicial interpretations.
The Independent National Electoral Commission (INEC) chairman, Prof Mahmood Yakubu, reached out to his platform of quarterly interaction with the media on February 26, 2018 to set the much expected Executive-Legislative confrontation on course over the sequence of elections in the country.
Professor Yakubu declared that the election timetable it earlier released before the National Assembly amended the Electoral Act to change the sequence of the general polls, won’t be affected, saying that the commission is guided by the Electoral Act, 2010 (as amended) and the provisions of the 1999 Constitution (as amended). In other words, even if the new Electoral Act is passed into law, it won’t be applied in retrospect, backdated or take effect with the timetable for the 2019 that has already been drawn by the commission in line with the prevailing Electoral Act, 2010 (as amended) and the provisions of the 1999 Constitution (as amended).
In his own words which were well chosen, he said; “Here, we are dealing with certainties. As far as the commission is concerned, there is no lacuna in the constitution. As far as we are concerned, we are dealing with existing laws. But if eventually the bill is assented to, we will look at the provisions and tell Nigerians what to do. “As far as the situation is concerned at the moment, we are operating under an existing law, and we have issued the timetable for the elections accordingly. If there is anything that happened tomorrow, we will then examine what happened tomorrow. We are covered by the provisions of the extant law and the existing provisions of the Electoral Act, 2010”.
The brickbat between the National Assembly and the Presidency over reordering of the 2019 election sequence began on January 24, 2018. When barely a month after INEC released the timetable for the said elections, the House of Representatives amended Sections 25 and 87 of the Electoral Act, 2010 (as amended) and substituted them with new Sections 25 (1) and 87 (11) respectively.
According to INEC’s timetable, the presidential and National Assembly elections are billed for February 16, while the governorship, State House of Assembly and local government elections will hold on March 2, 2019.
But the House of Representatives’ amendments which was also adopted in the senate on February 14, 2018 will cause the National Assembly election is to hold first, followed by gubernatorial and State Assembly with the Presidential election billed to be conducted last.
The probability of this bill becoming a law is highly on the balance. According to many senators, the probability of President Buhari withholding his assent to the Bill is very high based on the belief by the presidency that the reordering of the election is a coup against the president by the lawmakers. It is highly anticipated that Buhari shall veto the bill.
This is just as the Federal lawmakers are likely to seize the opportunity of the 30 days allowed by Section 88 (b) of the Senate Rule and override any veto by the president. The Senate spokesman, Senator Aliyu Sabi Abdullahi gave similar hints on February 14 when he was fielding questions with Senate Press Corps of what the senate will do if Buhari fails to assent to the bill; ‘’When we get to that river we shall find the ways to cross it’’, he said.
But the most probable option INEC may opt for, is court action against the National Assembly for the interpretations of some provisions of the 1999 Constitution as amended. More so, the immediate past INEC Chairman, Prof. Attahiru Jega, has also called on the Federal Government, INEC and other interested parties to go to court to challenge the National Assembly’s reordering of the 2019 election sequence
Speaking at the event with the theme, ‘Is Nigeria’s Democracy Under Threat?’ he said there was a need for judicial interpretation on the matter. He said, “Both INEC and the interested parties have been reluctant to go to court for interpretation of constitutional provisions and this is significant because this has to do with the independence of electoral bodies.
Jega said the 1999 Constitution was clear on the fact that organising and scheduling elections remained the exclusive preserve of INEC; saying the argument that the National Assembly did not fix a date for the election but merely reordered the sequence is wrong.
He added, “I am struggling to see where the National Assembly found the constitutional justification for what they have done. I will mention two specific provisions. First of all, in the schedule of the constitution part 15 Section 1, of the said schedule, INEC has the constitutional power to organise, undertake and supervise elections.
“But that is not enough. In Section 76 (1), Section 111 (1) and Section 178 (1), it is categorically stated that elections shall be held on a date to be appointed by INEC. So, if elections are to be held on a date set by INEC, where does the National Assembly get the power? “As far as I am concerned, the dates and the sequence for elections are together.”
A Lagos based activist lawyer, Femi Falana (SAN) who said INEC needs not go to court to waste tax payers’ money over the matter, said recent efforts of the National Assembly to alter the election sequence already fixed by INEC is an exercise which shall fail. He averred that like attempts made in the past by the legislature to use the Electoral Act to alter the sequence of elections fixed by the INEC that did not succeed, so the current efforts of the legislature.
In a press statement signed by Falana last week, he said since the return to democratic rule in 1999, INEC has conducted the general elections on a two-tier or three-tier basis.
“In preparations for the 2019 general elections the INEC recently released a timetable for party primaries and the elections into the various offices in exercise of its powers under Sections 76, 116, 132 and 178 as well as paragraph 15 of Part 1 of the Third Schedule made pursuant to section 153 (1) of the Constitution.
“But in the Electoral Bill 2018 recently passed by the National Assembly the sequence of the general elections has been altered. It is the height of legislative absurdity to say that the power donated to the INEC by the Constitution shall be exercised in accordance with the provision of an interior legislation.
“It is submitted that the interference in the exercise of the powers of the INEC to appoint dates for holding the general election in Nigeria is illegal as the provision of the Electoral Bill (2018) is inconsistent with Sections 76,116,132 and 178 of the Constitution. To the extent of such inconsistency, the provision of the Electoral Bill is illegal, null and void as stipulated by section 1 (3) of the Constitution.
‘’In other words, since the INEC has been empowered to organise, undertake and supervise all elections the National Assembly cannot rely on the provision of the Electoral Act to usurp the powers of the INEC to fix the dates for the elections. In view of the settled position of the law the INEC should not waste public funds by rushing to the Supreme Court to contest its own constitutional duty to organise, undertake and supervise the 2019 general elections, Falana said.
“Perhaps not aware of the state of the law the INEC has announced its intention to approach the Supreme Court to test the constitutional validity of the Electoral Bill 2018 if it is eventually signed into law by the President.
“Since there are indications that the President may withhold his assent in the circumstance, the national assembly has threatened to override his veto. Having watched the trend of the debate it is regrettable to note that the parties involved in the dispute have not studied the decision of the Court of Appeal in the case of National Assembly v. President(2003) 9 NWLR (PT 824) 104 at143-144.
“In that case, then President Obasanjo had refused to assent to the Electoral Bill 2002 which had been passed by both Chambers of the National Assembly and transmitted to him June 24, 2002. Subsequently, by a motion of veto-override by the national assembly passed the bill into law.
“In an originating summons filed at the Federal High Court the INEC challenged the validity of the passage of the Bill into law and the constitutionality of Section 15 of the Act which had provided that general elections shall be held in one day. The trial court held that the Bill was properly passed into law but that Section 15 thereof was inconsistent with Sections 76, 116, 132 and 178 of the Constitution.
“Dissatisfied with the annulment of Section 15 of the Electoral Act, the national assembly filed an appeal at the Court of Appeal. On his own part, the Attorney-General of the Federation filed a cross appeal to challenge the passage of the Bill into law. In its judgment the Court of Appeal held that the manner of passing the bill into law was unconstitutional but declined to set it aside on ground of public policy as the 2003 general elections were being conducted under the law. However, the Court of Appeal affirmed the decision of the Federal High Court on the illegality of Section 15 of the Electoral Act.
“In his contribution to the judgment of the Court, Oduyemi J.C.A (as he then was) stated that “in so far as Section 15 of the Electoral Act, 2002 seeks to fetter that discretion and limit the 3rd Defendant to only one day in the year for all elections to the offices concerned, that provision of the Act is inconsistent with the provisions of the Constitution above referred to and is to that extent a nullity. Section 1(3) of the Constitution…
“All in all, I agree with the reasoning in the judgment of the lower court and with the conclusion in the judgment that Section 15 of the Electoral Act, 2002 is inconsistent with the specific provisions of the Constitution of the Federal Republic of Nigeria, 1999 in Section 132(1), 76(1), 178(1), 116(1), 78, 118 and Item 15(a) of the 3rd Schedule: that it infringes upon the absolute discretion vested by the Constitution on the 3rd Respondent (INEC) with regard to the fixing of dates for election into the various offices concerned.”
However, the national assembly took advantage of the 2010 Alteration of the Constitution to attempt to overrule the judgment of the Court of Appeal in the case of the National Assembly v. The President (supra). Thus, in the first alteration made to the Constitution, the national assembly amended sections 132(1), 76(1), 178(1), 116(1), 118 and 178 of the Constitution by adding the phrase “in accordance with the Electoral Act”
“Although the power of the INEC to “organise, undertake and supervise” the general elections conferred on it by paragraph 15 of part 1 of the third schedule made pursuant to section 153 of the Constitution was left intact, the national assembly members erroneously believed that they had conferred on themselves the power to fix the dates for general elections in Nigeria.
“Hence, in the 2018 Electoral Bill, the national assembly is alleged to have tampered with the discretion of the INEC to fix the dates for the 2019 general elections. Apart from the illegality of subjecting the provisions of the Constitution to the Electoral Act, the Alteration of the Constitution did not confer on the national assembly the power to fix dates for holding the general election in Nigeria.
“To that extent, the national assembly cannot use the Electoral Act to usurp the powers exclusively conferred on the INEC to appoint dates for holding the general elections in the country.
“Indeed, the Supreme Court has had cause, after the first 2010 Alteration of the Constitution, to confirm the discretionary power of the INEC to fix the dates for holding the general elections.
“In PDP V. SYLVA (2012) 13 NWLR (PT 1316) 85 the respondent challenged the decision of the INEC to cancel and reschedule the 2012 governorship election in Bayelsa State. In dismissing the contention the Supreme Court (per Rhodes Vivour JSC) held that ‘’INEC has the sole responsibility to fix dates for election and to my mind if INEC fixes a date for elections and for whatever reason, be it logistic, I do not think anyone has a cause of action against INEC for canceling an election (not held) and rescheduling elections for another day’’.
“Similarly, in NDP V INEC (2013) 20 WRN 1 at 45 the Supreme Court (per Ariwoola J.S.C.) held that “It is not in doubt that the INEC that is, the respondent, has the sole responsibility to decide when elections are to hold.
“Furthermore, in Hon. James Abiodun Faleke v INEC (2016) 50WRN 1 the Supreme Court reiterated the view that by virtue of paragraph 15 of Part 1 of the Third Schedule made pursuant to section 153 (1) (f) and (i) of the Constitution, the Independent National Electoral Commission has power to organise, undertake and supervise all elections to the offices of the President, Vice President, the Governor and Deputy Governor of a State and the membership of the Senate, the House of Representatives and the House of Assembly of each state of the Federation.
“No doubt, the national assembly would have achieved its objective if it had incorporated the sequence of the general elections in the Constitution. But by providing that the INEC shall fix election dates “in accordance with the Electoral Act” the interference in the exercise of the discretionary power of INEC’s constitutional power to fix the dates for the elections cannot be justified in law.
“As far as the Constitution is concerned, the power of the INEC to organise, undertake and supervise the elections which has been interpreted to include the power to fix the dates for the general elections or determine the sequence of the elections has not been altered in any material particular’’, Falana submitted.