Legal practitioner and Rights advocate, Femi Falana, SAN has
said that it is only the Independent National Electoral Commission
that has power to fix date for election and that the National
Assembly lacks the power to do so. In his statement the Senior
Advocate noted that “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.
According to him “It has equally been confirmed that when
elections into the legislative houses were held before other
election in the past majority of sitting legislators lost their
seats. So, there is no indication that President
Mohammadu Buhari stands to benefit electorally from the decision of
the INEC to retain the 2015 sequence of elections. But
notwithstanding the reactions of the presidency and the national
assembly to the sequence of elections announced by the INEC it is
pertinent to review the relevant provisions of the Constitution,
the Electoral Act and judicial authorities on the vexed issue.
Speaking further Falana, SAN “ln 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.
“Under the arrangement the presidential and national assembly
elections will be held on February 16, 2019 while the
governorship and house of assembly elections will take place on
March 2, 2019. But in the Electoral Bill 2018 recently
passed by the national assembly the sequence of the general
elections has been altered. The sequence of proposed by the new
amendment is A. National Assembly Election, B. Governorship and
State Assembly Elections and C. Presidential Election.
“No doubt, the matter has generated a needless controversy to
the extent that little or no attention is paid to the other
provisions of the Electoral Bill which have the capacity to promote
internal democracy and enhance the credibility of the electoral
process. 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 at 143-144.
In that case, 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 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 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
3rdSchedule: that it infringes upon the absolute
discretion vested by the Constitution on the
3rd Respondent 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 “organize, 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,” he said.
According to him “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 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 Independent National Electoral Commission (INEC) that is,
the respondent, has the sole responsibility to decide when
elections are to hold. See Peoples Democratic Party v Timipre Sylva
& Ors (2012) 13 NWLR (Pt 1316) 85 at 122. The respondent also
reserves the prerogative to decide what Timetable to of Activities
to publish for a General
Election.” Furthermore,
in Hon. James Abiodun Faleke v INEC (2016) 50
WRN 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 organize, 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 organize,
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.
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.
In Attorney-General, Abia State v.
Attorney-General of the Federation (2002) 1 WRN
1 at 45 Kutigi CJN (as he then was) held that “where the
provision in the Act is within the legislative powers of the
National Assembly but the Constitution is found to have already
made the same or similar provision, then the new provision will be
regarded as invalid for duplication and/or inconsistency and
therefore inoperative. The same fate will befall any provision of
the Act which seeks to enlarge, curtail or alter any existing
provision of the Constitution. The provision or provisions will be
treated as unconstitutional and therefore null and void.”
“From the foregoing, 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 organize, 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 organize,
undertake and supervise the 2019 general elections,” Falana, SAN,
said.
Legal practitioner and Rights advocate, Femi Falana, SAN has
said that it is only the Independent National Electoral Commission
that has power to fix date for election and that the National
Assembly lacks the power to do so. In
his statement the Senior Advocate noted that “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.
According to him “It has equally been confirmed that when
elections into the legislative houses were held before other
election in the past majority of sitting legislators lost their
seats. So, there is no indication that President
Mohammadu Buhari stands to benefit electorally from the decision of
the INEC to retain the 2015 sequence of elections. But
notwithstanding the reactions of the presidency and the national
assembly to the sequence of elections announced by the INEC it is
pertinent to review the relevant provisions of the Constitution,
the Electoral Act and judicial authorities on the vexed issue.
Speaking further Falana, SAN “ln 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.
“Under the arrangement the presidential and national assembly
elections will be held on February 16, 2019 while the
governorship and house of assembly elections will take place on
March 2, 2019. But in the Electoral Bill 2018 recently
passed by the national assembly the sequence of the general
elections has been altered. The sequence of proposed by the new
amendment is A. National Assembly Election, B. Governorship and
State Assembly Elections and C. Presidential Election.
“No doubt, the matter has generated a needless controversy to
the extent that little or no attention is paid to the other
provisions of the Electoral Bill which have the capacity to promote
internal democracy and enhance the credibility of the electoral
process. 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 at 143-144.
In that case, 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 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 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
3rdSchedule: that it infringes upon the absolute
discretion vested by the Constitution on the
3rd Respondent 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 “organize, 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,” he said.
According to him “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 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 Independent National Electoral Commission (INEC) that is,
the respondent, has the sole responsibility to decide when
elections are to hold. See Peoples Democratic Party v Timipre Sylva
& Ors (2012) 13 NWLR (Pt 1316) 85 at 122. The respondent also
reserves the prerogative to decide what Timetable to of Activities
to publish for a General
Election.” Furthermore,
in Hon. James Abiodun Faleke v INEC (2016) 50
WRN 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 organize, 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 organize,
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.
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.
In Attorney-General, Abia State v.
Attorney-General of the Federation (2002) 1 WRN
1 at 45 Kutigi CJN (as he then was) held that “where the
provision in the Act is within the legislative powers of the
National Assembly but the Constitution is found to have already
made the same or similar provision, then the new provision will be
regarded as invalid for duplication and/or inconsistency and
therefore inoperative. The same fate will befall any provision of
the Act which seeks to enlarge, curtail or alter any existing
provision of the Constitution. The provision or provisions will be
treated as unconstitutional and therefore null and void.”
“From the foregoing, 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 organize, 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 organize,
undertake and supervise the 2019 general elections,” Falana, SAN,
said.
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