NASS vs Buhari: Reminiscences of 2015 battle over constitution amendment

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The ongoing dispute between the National Assembly and
President Muhammadu Buhari over the Electoral Act (Amendment) Bill,
2018 evokes the memory of a similar battle between the then
President Goodluck Jonathan and the legislature over constitution
amendment in 2015, ADE ADESOMOJU reports

The substances of the proposed amendments to the Electoral Act
in 2018 may differ from the proposed amendment to the 1999
Constitution in 2015, but the dispute between the National Assembly
and incumbent President Muhammadu Buhari brings back the memory of
a similar stalemate between then President Goodluck Jonathan and
the legislature.

Just like in 2015 when Jonathan vetoed the constitution
amendment proposed by the then 7th National Assembly, to the
annoyance of some legislators, some lawmakers in the present era,
particularly senators in the upper chamber of the 8th National
Assembly, are also angry with President Buhari for withholding his
assent to the proposed amendment to the Electoral Act.

They angry legislators, in a manner similar to how they reacted
in 2015, have threatened to override Buhari’s veto with two-thirds
of votes in the two chambers of the National Assembly.

The President is believed to be the target of the proposed
Electoral Act (Amendment) Bill, 2018, which seeks to dictate the
sequence in which the Independent Electoral Commission must conduct
the 2019 general elections.

The sponsors of the proposed amendments are seeking to reorder
the sequence of the election which INEC had earlier announced.

In what many considered a move sympathetic to the ruling All
Progressives Congress, the Accord Party filed a suit before the
Federal High Court in Abuja to challenge the constitutional
validity of the proposed amendment to the Electoral Act.

Accord Party is, by the suit, seeking, among others, a
declaration that the amendment to the Electoral Act 2010
(introducing a new Clause 25) just passed by the National Assembly,
has interfered or curtailed the power, right and discretion of INEC
in respect of the schedule or sequence of the 2019 general
elections.

The plaintiff particularly sought an order setting aside Clause
25 of the Electoral Act (Amendment) Bill, 2018.

The plaintiff also sought an order of perpetual injunction
restraining the President, represented by the Attorney General of
the Federation, from assenting to the bill.

Joined as defendants in the suit are the National Assembly, the
AGF and INEC.

Although, the case has yet to proceed to full-blown hearing, it
is not in doubt that both the AGF and the INEC are in agreement
with Accord Party.

In fact, on March 14, 2018, the first time the suit was
mentioned in court, only the National Assembly, through its lawyer,
Miss Chinelo Ogbozor, put up a resistance against the plaintiff’s
application for a restraining order targeted at stopping the
legislature from taking further steps on the proposed amendment,
pending the hearing of the motion for interlocutory injunction.

At the proceedings of March 14, 2018, the plaintiff’s lawyer,
Chief Wole Olanipekun (SAN), urged the court to hear his client’s
motion for an interlocutory injunction for a restraining order
against the National Assembly.

The AGF was not represented by any counsel during the
proceedings, but INEC was represented by its lawyer, Mr. Taminu
Inuwa, who said he had no objection to the application by Accord
Party.

But counsel for the National Assembly, Ogbozor, urged the court
to adjourn the matter as she was still within time to respond to
the Accord Party’s application for interlocutory injunctions.

Accord Party’s lawyer, Olanipekun then urged the court to compel
Ogbozor to give an undertaking that the National Assembly would not
take any step concerning the controversial bill pending the hearing
of Accord Party’s interlocutory motion for injunction.

But in response, Ogbozor declined to give any undertaking,
insisting that her client could not be put under any such pressure
since they were still within time to respond to the motion.

At that point Olanipekun urged to court to “make a preservative
order to preserve the res (substance) of the matter” pending the
next adjourned date.

He expressed his apprehension that there could be constitutional
crisis should the National Assembly evoke its powers under Section
58(5) of the Constitution to override the President’s withholding
of assent.

In response, Ogbozor argued that granting the plaintiff’s oral
application would amount to denying her client, the National
Assembly, fair hearing.

She added that granting the plaintiff’s prayer would amount to
undue interference in the constitutional duties of the legislature,
a separate arm of government.

Ruling, Justice Ahmed Mohammed, agreed with Olanipekun, by
granting an order directing parties to maintain status quo.

The order of the court infuriated the Senate in particular,
threatening to report the judge to the National Judicial
Council.

The dispute between the 7th National Assembly and the then
President Jonathan also reached such a highpoint when the Supreme
Court on May 7, 2015 issued similar “preservative order” in respect
of the process of amendment to the 1999 Constitution.

Since the dispute was between the federal executive and
legislative arms of government, the original jurisdiction of the
court to hear the suit, as the court of first instance, was
evoked.

The seven-man panel of the Supreme Court, led by the then Chief
Justice of Nigeria, Justice Mahmud Mohammed, made the order that
status quo should be maintained with regard to the issue.

The order was made in the suit filed by the then AGF, Mr.
Mohammed Adoke (SAN), to challenge the passage of the 4th
Alteration Bill by the National Assembly.

The then CJN explained that the order implied that no further
step should be taken by parties in the suit with respect to the
issue.

The apex court then and fixed June 18, 2015 for further
proceedings.

Meanwhile, the life of the current 7th National Assembly was to
end on June 5, 2015.

President Jonathan had refused to assent to the 4th Alteration
Bill on the grounds of the alleged failure of the National Assembly
to fulfill the mandatory requirement for the passage of the
bill.

The AGF had filed the suit at the Supreme Court challenging the
final passage of the bill following a provision in the proposed
amendment to the constitution by the National Assembly conferring
on itself the power to pass an amendment to the constitution
without the President’s consent.

In his originating summons, the Federal Government asked the
apex court to make an order nullifying sections 3, 4, 12, 14, 21,
23, 36, 39, 40, 43 and 44 of the Fourth Alteration Act, 2015
purportedly passed by the defendant.

The AGF had filed the application for interlocutory injunction
in view of the determination of the National Assembly to proceed
with the amendment despite the pending suit.

The AGF argued in the application that the National Assembly was
determined to proceed with passing the amendment by overriding the
President’s assent despite the fundamental nature of the issues
raised against the passage of the bill.

Reminding one of the threats, which regularly emanate from the
National Assembly over the proposed amendment to the Electoral Act
by the 8th National Assembly, the supporting affidavit deposed to
by Theophilus Okwute, in support of Adoke’s suit read, “Hon. Samson
Osagie, Minority Whip of the House of Representative, said to the
whole world at a press conference, purposely called on the issue in
this suit, that despite any case filed against the said Act (which
actually is a bill), the National Assembly would go ahead to pass
it into law.”

Although, the apex court had adjourned the matter till June 18,
2015, it reconvened on May 25, which was barely four days to the
end of Jonathan’s tenure and about 10 days to the end of the 7th
National Assembly.

Interestingly, the Supreme Court, during the proceedings, gave
President Jonathan and the National Assembly 48 hours to settle
their disagreement over the process of amending the 1999
Constitution.

The seven-man panel of the apex court, led by then CJN Mohammed,
asked the senior lawyers appearing in the matter to broker the
settlement talk.

The court then adjourned for 48 hours for report of
settlement.

The surprise twist came after Ojo, counsel for the AGF, failed
in his bid to change the plaintiff from the AGF to President
Jonathan.

Ojo had anchored the application filed on May 20, 2015 on the
provisions of Order 3, Rules 1, 14 and 15 of the Supreme Court
Rules and Order 17, Rules 1 and 2 as well as Order 9 Rule 2 of the
Federal High Court Civil Procedure Rules.

As soon as he moved the motion, some members of the panel took
turn to fault it on the grounds that Ojo ought to have filed an
entirely fresh suit in the name of the President as the plaintiff
instead of filing an application for the substitution of the
AGF.

The CJN in the middle of the argument, told the senior lawyers
in the suit to endeavour to bring parties into a talk so that it
could be settled out of court.

Both Ojo and Adegboyega Awomolo (SAN), who led three other SANs
that appeared for the National Assembly, then, agreed to initiate a
settlement talk between the parties.

Ojo withdrew his application for the substitution of the
plaintiff.

The panel then struck out the plaintiff’s motion and then
adjourned till May 27, 2015, barely 48 hours before Jonathan would
vacate office.

When the court reconvened on May 27, the parties, through their
lawyers, happily notified the court that they had settled.

They filed terms of settlement attached to Adoke’s notice of
discontinuance of the suit before the Supreme Court.

The seven-man panel of the Supreme Court led by the CJN Mohammed
struck out the suit after Adoke’s lawyer, Ojo, moved the
application for discontinuance of the suit.

With the concession, which was said to have been reached between
the representatives of the President and the National Assembly
earlier on May 26, the President conceded to six out of his 13
initial objections to the alterations.

The agreement between the President and the National Assembly
saw the removal of alteration to Section 9 of the Constitution,
which allowed the National Assembly to dispense with the
President’s assent in the process of constitution amendment.

The President was able to stop the passage of the proposed
amendment for the separation of the office of the Attorney General
of the Federation and Minster of Justice from that of the Minister
of Justice.

But with the settlement arrived at between the President and the
National Assembly, the alterations made to sections 8, 9, 45(a) –
45(b), 150, 174, 195 and 211 will now be deleted.

The National Assembly got away with their alterations to
sections 34, 35, 39, 42, 58 and 84 of the constitution.

The agreement signed by Ojo and the lead counsel for the
National Assembly, Awomolo, stated that the President would sign
the Fourth Constitution Alteration Act 2015, with agreement reached
reflected in it.

It is noteworthy that the matter ended in an amicable settlement
but President Jonathan never signed the amended constitution till
he left office on May 29, 2015.

Whether or not the current dispute between President Buhari and
the National Assembly over the proposed amendment of the Electoral
Act would end in such an amicable resolution remains a question
only time can answer.

But the tone of the comment of the incumbent AGF, Malami, during
the proceedings before the Federal High Court in Abuja earlier on
Tuesday showed that there had yet to be a common ground between the
executive and the legislature over the matter.

Describing the alleged threat by the National Assembly as a sad
development, Malami expressed solidarity with the judiciary in
carrying out its constitutional duties in line with the principles
of separation of power.

He said, “I must say that resort to intimidation and threat by
one arm of government to the other, particularly the Senate, with
regards to the powers of Your Lordship to discharge your duty, is
indeed a sad development.”

But responding, Mr. Femi Falana (SAN), acting as INEC’s lawyer,
urged the judge to ignore the threat from the Senate, to prevent
being drawn into an avoidable controversy.

Falana said, “With respect to observations of the AGF regarding
threats or comments made outside the precincts of this court, I
will humbly urge Your Lordship to ignore such developments so as to
avoid being drawn into unnecessary controversies.”