Chris Akiri
Nigeria, a putative democracy, with a written constitution, is, or should be, a country governed by the rule of law and the due process of the law. Sections 4, 5 and 6 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) enshrine the doctrine of separation of powers among the three arms of government, the Legislature, the Executive and the Judicature. In Myers vs. United States 272 US 52, Brandeis J. of the US Supreme Court elucidated the doctrine as follows: “The doctrine of separation of powers was adopted by the Convention of 1787 not to promote efficiency but to preclude the exercise of arbitrary powers.” And in the matter of AG Bendel State vs. AG., Federation (1981), the Nigerian Supreme Court, per Kayode Eso (JSC, as he then was) said:
“Now, it is true that the Legislature, especially in a country like ours, which has accepted the doctrine of separation of powers, and which has got that doctrine embodied as a provision of its Constitution, “is a master of its own household.” The exception to this sovereignty within its own household is where the powers of such Legislature have been specifically restricted under the Constitution.” And “The language of the Constitution, where clear and unambiguous, must be given its plain evident meaning”, again, according to the Supreme Court, per Andrews Otutu Obaseki, JSC (as he the then) in the aforementioned case.
Section 1 (1) of the 1999 Constitution establishes the supremacy of the Constitution over all authorities and persons, while subsection (3) thereof pronounces “null and void” any law that is inconsistent with its provisions. Section 4 (1) of the Constitution empowers the National Assembly to make laws for the Federation or any part thereof.
The Electoral Act, 2010 (as amended by the Electoral Act, 2011) is a creature of the Legislature. Ipso facto, the National Assembly can amend or recreate this statute at any time, subject to law. Section 25 (1) thereof provides inter alia as follows:
“25 (1) Election into the offices of the President and Vice-President, the Governor and Deputy Governor of a State, and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation shall be held in the following order: Senate and House of Representatives; (b)Presidential election; and (c)State House of Assembly and Governorship elections…”
In the opinion of the distinguished Senators and honourable members of the House of Representatives, the sequence dictated by this section is not unlikely to issue forth in a situation where everybody or most people are likely to jump into the presidential bandwagon (if the presidential candidate of any political party (not necessarily the incumbent President of Nigeria) wins his/her spurs against his/her opponents, thereby tilting the balance of subsequent elections in favour of the party of the President-in-waiting. In Nigeria, every State wants to have a stake at the centre, particularly because of the undemocratic “prosper the 95% of those who voted for me, and treat the 5% who did not with visible scorn” policy.
The move to amend the Electoral Act, via an Electoral Act (Amendment) Bill was a most reasonable, self-sacrificing and altruistic one by the legislators, considering, in the main, that majority of the legislators in both Chambers of the National Assembly are in APC, the ruling party, and that the incumbent President is the leader of the party in power. Where the Bill, as considered and passed by the two Chambers was sent to the President for his assent under the provisions of section 58 (1) of the Constitution and the latter denied his assent thereto, such a Bill has to be deliberated on again by the two Chambers, and if the Bill is again passed in each of the two Houses by two-thirds majority, the Bill shall become law, under the provisions of subsection (5) of section 58 of the Constitution.
For some quaint political reasons, some aggrieved corporate persons, the Accord Party, could not wait for the completion of the law-making process as delineated in section 58 0f the Constitution before they rushed to a Federal High Court, which, per Mr. Justice Ahmed Mohammed, in my humble opinion, gave a hasty verdict, out of jurisdiction.
Aside from the provisions of section 132 (1) of the 1999 Constitution (as amended), which are on all fours with the provisions of sections 116 (1) and 178 (1) thereof, the 1999 Constitution (even as amended) is silent on the sequence of elections. The foregoing sections merely state that “An election to the office of (the President or Governor) shall be held on a date to be appointed by the Independent National Electoral Commission.” Similarly, section 76 (1) of the Constitution provides that “Elections to each House of the National Assembly shall be held on a date (DATE, not sequence) to be appointed by the Independent National Electoral Commission.”
Section 78 of the Constitution, which stipulates that “The registration and conduct of the elections shall be subject to the direction and supervision of the Independent National Electoral Commission” cannot, and should not, by any stretch of the imagination, be construed to mean authority to determine the sequence of elections. The word conduct in section 78 of the Constitution refers to all those activities delineated in Part iv (sections 25-77) of the Electoral Act 2010 (i.e. “days of election” to “access to election documents”). Period! As though the National Assembly (NASS) figured out that sections 76 (1), 116 (1), 132 (1) and 178 (1) were capable of misconstruction (i.e. as if empowering the Independent National Electoral Commission (INEC) to determine the date as well as the sequence of elections), it amended those sections of the Constitution, in 2010, to read:
“An election to the office of (President, etc.) shall be held on a date to be appointed by the Independent National Electoral Commission “in accordance with the Electoral Act.” (underscore mine). If the Constitution says, “in accordance with the Electoral Act”, it is irrefragable that the Constitution acknowledges the NASS (not INEC) as the supreme authority over the determination of any matter associated with elections, other than the dates and conduct thereof, the Electoral Act being a product of the NASS, which can make and unmake that Act, subject to law.
I posit, with respect, that any person, human or corporate, that sues the NASS to prevent it from amending the Electoral Act is incompetent so to do, and such a suit should have been dismissed as being speculative, constituting, as it does, an unconstitutional clog in the wheel of the legitimate exercise of legislative functions by the NASS. I also posit that any judgment that prevents the Legislature from discharging the legislative functions vested in it by the Constitution could only have been delivered per incuriam, being a brazen usurpation, by the Judiciary, of the constitutional function of the Legislature, a judgment delivered speculatively on a Bill that is yet to become law, a judgment whose ratio decidendi was based, as CJN Onnoghen would say, on factors other than law, an illegal incursion into the domain of the National Assembly (an independent arm of government) and a dangerous, bare-faced breach of the doctrine of separation of powers.
Akiri, a lawyer, writes from Lagos