Ismail Omipidan
The raging controversy over re-ordering of the 2019 General Elections continued over the weekend with lawyers taking divergent positions, even as the Executive and Legislature continue to bicker over the development.
The National Assembly had passed an amendment to the Electoral Act, to among other things, alter the sequence of elections in the country.
But by last Tuesday, President Muhammadu Buhari refused to assent to the amendment. Among the three reasons he gave for withholding assent is that the bill usurped the constitutional powers of the Independent National Electoral Commission (INEC) to decide on election matters, including fixing the dates and the order they would be held.
However, while some lawyers believe that President Buhari was right in refusing assent to the bill, others think otherwise. Among those who spoke in favour of President Buhari are Femi Falana SAN and Prof. Itse Sagay, chairman, Presidential Advisory Committee Against Corruption, (PACAC).
Speaking with Daily Sun, yesterday, Sagay said the National Assembly has no right to usurp the powers of INEC to fix dates for elections in the country.
Reminded of the first alteration to the constitution which states that INEC must conduct elections in accordance with the provisions of the Electoral Act, Sagay again said, “the same constitution gives the power to conduct elections to INEC. The constitution states clearly that INEC has the power to organise, undertake and supervise elections, those are the words used by the constitution. It does not leave any room for any other body to do that.
“Any law that is contrary to the provision of the constitution even if it is in the Act becomes null and void. Determining the sequence of election is part of the powers given to INEC. Any other thing that stops INEC from exercising that power will be acting contrary to the constitution.”
On his part, Falana who had made his position known long before President Buhari’s action last week had consistently insisted that the National Assembly lacks the powers to determine election sequence in the country.
Hear him: “Since the return to democratic rule in 1999, the Independent National Electoral Commission (INEC) has conducted the general elections on a two-tier or three-tier basis. Even though the National Assembly had attempted in the past to use the Electoral Act to alter the sequence of elections fixed by the INEC, it did not succeed. In spite of the ongoing controversy surrounding the sequence of elections, our recent experience as a nation has shown that there is nothing sacrosanct about it. In 1999 and 2007, the presidential election came up last while it came up first in 2015. In influencing the order of elections in 2015, the ruling party had thought that holding the presidential election first would have bandwagon effect on the outcome of the other elections. But the result was a disaster for the ruling party.
“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 at 143-144, where Obasanjo as president then refused to assent to the Electoral Bill 2002, which sought to have all the elections held in one day. But the National Assembly activated the relevant portions of the constitution to override Obasanjo’s veto.The case ended in court and up to the Appeal Court and was decided in favour of the executive.”
Falana futher said the National Assembly, however, “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. 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 of fix dates for holding the general elections 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 INEC to fix the dates for holding the general elections.”
However, other lawyers think otherwise. They believe that their colleagues may have misinterpreted the spirit and letter of the constitution in making their submissions.
Among those who said the National Assembly was on the right track are Prof. Maxwell Gidado, former Presidential Adviser on Legal Matters, Ibrahim Mark, former National Secretary, Nigeria Bar Association (NBA) and Vice President, African Bar Association and Mr. Adum Alex, former Commissioner for Justice and Attorney-General of Benue State.
Gidado told Daily Sun that the legislature is empowered under the constitution to make laws about any subject on the Exclusive Legislative list, including the power to override the veto of the president.
“There is nothing under the sun that the National Assembly does not have power to legislate upon, including amending the constitution. Even though INEC has powers to organise, undertake and supervise elections, if the lawmakers discover that the powers are misused, they can amend the constitution to remove the powers. At any rate there is a difference between fixing of election dates and order in which the elections will come. These are two different and distinct issues,” the ex-presidential adviser said.
Also speaking with Daily Sun yesterday, Mark noted that it is not within the purview of President Buhari to interpret the law, but that of the judiciary.
“If INEC thinks its powers have been usurped, let it approach the court. It is not for Mr. President or anybody to say. It is within the powers of the National Assembly to legislate on the matter. In the past, we have had elections from bottom to top. So, what do you want to achieve by insisting that it must be from up to bottom? All previous elections have been held from bottom to top until last year. INEC’s powers talk about date of elections and not sequence. Let INEC fix date and do elections in accordance with the law. That is all Nigerians expect from it and not to engage in unnecessary controversy over sequence of election,” he said.
Speaking in the same vein, the former Benue commissioner for Justice and Attorney-General, Mr. Adum Alex, said the amendment sought by the National Assembly was to effectively take care of the “recondite” provision of the Electoral Act, which INEC had exploited in the past to determine sequence of elections in the country.
Insisting that there is nowhere in the constitution that gives INEC the power to determine the sequence of elections, Alex said, “in as much as the Constitution has not given the National Assembly the absolute powers to legislate on all matters, so also it has not specifically given INEC the powers to decide the sequence, method and time of election. And in the absence of any specific provisions under all the relevant sections of the Constitution granting INEC the powers to fix the sequence or the mode and style for the conduct of the elections, it is empowered to conduct under the Constitution, such powers have always been the subject of legislation by the National Assembly under the Electoral Act. In the extant Electoral Act 2010, for instance, the mode and style of election are specified under Section 52(1) as Open Secret Ballot, while electronic voting is prohibited under Subsection 2 of the said section. The mode of accreditation, the hour of election and the sequence of elections are also provided under the Act, but are, however, left to the administrative discretion of the Commission to execute. See Sections 48(1), 49(1) & (2) and 25 Electoral Act 2010.
“By the combined provisions of Sections 4(2), 15 para (i) of the Third Schedule, 132(1), 76(1), and 116(1) as well as 178(1), INEC is commanded by the Constitution to exercise its powers in accordance with the Electoral Act as may be enacted by the National Assembly. Thus, beyond the constitutional power to fix the dates of the various elections as expressly provided in the above mentioned sections of the Constitution, it is undoubtedly clear that the power to sequence the elections is not a power vested in INEC by the Constitution. If anything, it is a power vested in the INEC by the Electoral Act 2010, which was made by the National Assembly.
“In any case, the National Assembly has always legislated on the sequence of elections as evidenced in Section 25 of the Electoral Act 2010; so why the sudden hue and cry that the National Assembly has no such powers as against INEC whose powers in that regard are donated by the National Assembly in the first place. The truth is that none of the powers to wit: to determine the mode of the conduct of elections; the style of transmission of election results and the sequence of elections are constitutionally vested in INEC. They are, as we earlier stated, additional powers vested in INEC by an Act of the National Assembly. So, to that extent, it amounts to unnecessary muscle flexing for anybody to advise INEC not to obey the amendments or to go to Court to challenge the amendments to the Electoral Act 2010.
“Such an action, I daresay, would be an exercise in futility and a waste of the Commission’s precious time to prepare and adjust itself to the demands of the new sequence of elections in order to conduct a reasonably free and fair election in 2019. Needless I remind us that the Constitution, as I earlier stated, places an incumbent obligation on INEC to conduct all elections it is empowered to conduct in accordance with the provisions of the Electoral Act. That is why any election not conducted in substantial compliance with the provisions of the Electoral Act as amended, if the President signs it into Law or the National Assembly uses its veto powers under Section 58(5) CFRN, 1999 to override the President, may be vulnerable to nullification by the Court. See Section 138(1)(b) Electoral Act 2010 (as amended).”