A lot of controversies have been trailing the amendment of the
electoral Act by the National Assembly, ranging from the refusal of
assent by the president to the current court order restraining the
National Assembly from taking any further steps in respect of the
said amendment.
The bill to amend the current Electoral Act having been accented
to by the two houses of the National Assembly on Wednesday 14th
February sent to senate for presidential assent which the president
declined by a letter which he wrote the senate by Section 58(4) of
the Constitution which letter which was headed PRESIDENTIAL
DECISION TO DECLINE ASSENT TO THE ELECTORAL (AMENDMENT) BILL 2018
dated 8th March 2018. In the letter the president sited reasons for
declining assent to the proposed amendment which reasons are as
follows:-
1. That the propose amendment of the sequence of elections in
section 25 the Electoral Act may infringe upon the constitutionally
guaranteed discretion of the Independent National Electoral
Commission(INEC) to organize undertake and supervise elections
provided in section 15(A) of the third alteration to the
Constitution of the Federal Republic of Nigeria 1999 as
amended.
2. The amendment of Section 138 of the Electoral Act to delete two
crucial grounds upon which an election may be challenged by
candidates, unduly limits the rights of candidates to a free and
fair electoral review process.
3. The amendment to Section 152(3)-(5) of the Electoral Act may
give rise to constitutional issues over the competence of the
National Assembly to legislate over Local Government election.
Meanwhile just on Wednesday 15th of March 2018, a Federal High
court sitting in Abuja had ordered the National Assembly to suspend
all further steps in respect of the amendment, this it hinged on a
suit filed before it by Accord party and that it has powers under
section 6(6) of the constitution to preserve the subject matter of
dispute between parties pending the determination of issues raised
before the court.
I shall distill three important questions of law from all these
happenings as follows :-
1. Does section 15 of the third alteration the constitution empower
INEC with powers to order the sequence of elections and if that is
so;
2. Does that make the provisions of 25 of The Electoral Act a
matter over which the National Assembly cannot legislate on?
3. Does the court have powers to restrain the National Assembly
from carrying out its constitutional lawmaking functions?
On the first issue: Section 15(a) of the third alteration to the
constitution of the Federal Republic of Nigeria 1999 as amended
provides that “The commission shall have power to (a) Organise,
undertake, and supervise all elections to the offices of the
president and vile president, the Governor and Deputy Governor of a
state, and to the membership of the Senate, House of
Representatives and House of Assembly of each state of the
federation.
Having regards the context in which the president sited this
section of the supreme law, a question readily call to mind; What
does the lawmaker in section 15(a) of the third alteration to the
constitution intend when it said that the commission shall have
powers to ORGANISE, UNDERTAKE AND SUPERVISE ALL ELECTIONS? Does it
entail for INEC to order the sequence of election? It need be
pointed out here that Section 25 of the Electoral Act already
provided the order or sequence in which election are to be
undertaken by INEC, It says “Elections into the offices of the
President and 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 shall be held in the following order-
(a) Senate and House of Representatives
(b) Presidential election; and
(c) State House of Assembly and Governorship elections.
IT IS THE INTENTION OF THE LAWMAKER THAT IN THIS ORDER THE
COMMISSION SHALL HOLD ELECTIONS ON A DATE TO BE FIXED BY IT IN
ACCORDANCE WITH THE CONSTITUTION AND THIS BILL.
Of course a reading of Section 15(a) of the third alteration to
the constitution and Section 25(1) of the electoral Act together is
clear that the law is certain on the sequence of conducting
elections, however the commission shall have the discretion to
appoint the dates on which such election are to hold and that is
the discretion I understand the president to be talking about in
his letter, other this ; I don’t want to believe that the president
has interpreted Section 15 of the third alteration to the
constitution to mean that INEC has a discretion to exercise over
sequence of elections.
Whatever the situation is, the powers the National Assembly to
remove any powers it wishes to remove from INEC has received
judicial blessings in the Supreme Court case of ACTION CONGRESS V.
INEC Per Onnoghen JSC AS FOLLOW- Much has been said about a
decision such as this leading to all sorts of difficulties. My
answer is simple that the Judiciary does not make laws; that
function or duty is by constitutional arrangement and provision
assigned to the legislature which in the instant case has enacted
the Electoral Act, 2006 to guide all stakeholders in the conduct of
the 2007 General Elections in Nigeria and post election
proceedings. The duty of the judiciary is to interpret the
provisions of the relevant laws and constitution and not to amend,
add to or subtract from provisions of the relevant laws enacted by
the legislature. In the instant case, the legislature thought it
right and proper and for good reason to take away the powers of the
respondent(INEC) to disqualify candidates earlier granted it by the
very legislature . In the light of this decision you can see that
the Legislature reserves every power to strip INEC of whatever
power which it exercises by an Act of the National Assembly.
On the second issue- even if the question in the first issue
above is to be answered in the affirmative The powers in question
are given to it by an Act of the national Assembly and to be
exercised in line with law giving it that power. The fact that the
constitution empowers INEC to Organise, Undertake and Supervise
elections, does not in any way mean that it has limited the powers
of the National Assembly the amend laws enacted by it in line with
laid down procedure?
The fact remains that irrespective of whatever a law provides
for, or whatever powers a law confers on a body, It is still the
Primary constitutional function of the National Assembly to make
laws and it is seized of the constitutional powers to amend laws
made by it and in doing this, the provision of such law is
immaterial. Note however that these are merely academic issues
because the president is not seized of powers to interpret the
constitution and the presidential assent can be overridden subject
to procedure, thus Section 58(5) of the constitution provides
that(where the president withholds assent and the bill is again
passed by two-thirds majority of each House, the bill shall become
law and the presidents assent shall not be required.
On the third issue which is the pressing constitutional issue at
hand- Does the court have powers to restrain the National Assembly
from carrying out its constitutional legislative functions?
The court here hinged its order on a suit it said was filed by
Accord party and that section 6(6) of the Constitution empowers it
to safe guard the subject matter of a dispute pending its
determination by the court. I will pause here to ask some
questions? What dispute are we talking about here? A dispute that
the legislature is carrying out its constitutional functions? Does
a political party have a locus standi to challenge the National
Assembly in carrying out its constitutional duties? Does section
6(6) of the constitution confer locus standi? In AMAH V. NWANKWO
(2007) 12 NWLR, There are two tests for determining locus standi of
a party.
They are:
a. The action must be justiciable; and
b. There must be a dispute between the parties. See also OGBUEHI V.
GOVERNOR OF IMO STATE. 1995 9 NWLR PT 417.
Is the action by Accord party justiciable? In FEDERAL GOGERNMENT OF
NIGERIA V. NATIONAL ASSEMBLY “ A suit challenging the legislative
duty of the national Assembly cannot pass the justiciability
muster.
Can there be a dispute between a political party and the
National Assembly in carrying out its internal constitutional
duties? I think not.
Secondly, can section 6(6) of the constitution as sited by the
court confers locus standi- this question was expressly answered by
the court in AMAH V. NWANKWO(SUPRA) Section 6(6) of the
constitution does not confer locus standi but prescribes the extent
of the courts judicial powers. See also FAWEHINMI V. IGP 2002 7NWLR
PT767, OWODUNMI V. REGISTETRED TRUSTEES OF CELESTIAL CHURCH OF
CHRIST 2000 10 NWLR PT 675.
Section 4(1) of the Constitution is clear in vesting the
legislative powers of Federation in the National Assembly, 4(2) (3)
(4) are also clear on matters over which the National Assembly can
make laws. Sections 6 and 5 also respectively provides for the
executive and legislature respectively. This goes to show how
deeply rooted the principle of separation of powers is rooted in
our constitution.
In 1981 the Supreme court cut down such invasion by the national
assembly which sought to curtail or regulate the powers of the
court in the absence of a principle Enactment Act.
This was the case of PAUL UNONGO V. APER AKU & ORS.
1981-1990 LRECN 1, Where it reiterated the doctrine of separation
of powers , the independence of the judiciary and frowned at ouster
and maintained that the Supreme Court has inherent powers to
control its internal proceeding subject to Section 6(6) b of the
1979 Constitution and that the national Assembly lacks powers to
legislate on matter of rule of practice and procedure for election
petition in the absence of any principal enactment.
However with the advert and delay in electoral litigation in
order to take care of this delay in elections litigations , the
1999 Constitution was amended spelling out the lifespan for
electoral litigations such as 180 days from the date of declaration
n of results for the tribunal to conclude and deliver judgement and
60 days from the date of delivery of such judgement on those on
appeals within which the judgement must be delivered. See section
29 of the 1st Alteration and section 285 of the constitution. The
Supreme Court now has no hesitation in giving its legal imprimatur
to this constitutional amendment in the case of ANPP V. GONI(2012)
2 LRECN 440. The first case to test the lifespan of electoral
litigation. (this is by-the-way)
In the light of decisions such as that in UNONGO V. APER AKU, if
the legislature was held by the court to be lacking powers to give
directives to the court on how to carry out its function; does that
not imply also that the court cannot interfere in the lawmaking
functions of the legislature by way of making orders as to when it
should suspend or continue a process of making or amendment of a
law? This have received judicial blessings in cases such as in
FEDERAL GOVERNMENT OF NIGERIA V. NATIONAL ASSEMBLY, “It is doubtful
whether any suit challenging the legislative procedure of the
National Assembly can pass the justiciability muster.
In UGWU V. ARARUME (2007) 12 NWLR (PT1048) The court held that
we operate a constitutional democracy with powers constitutionally
assigned to three recognized arms of government, namely; the
Executive, the Legislature and the Judiciary. It is the duty of the
Legislature to make laws which are to be interpreted by the
judiciary and executed by the executive arm of the government.
Finally, in ATTORNEY GENERAL OF ABIA STATE V. ATTORNEY GENERAL
OF THE FEDERATION 2006 16 NWLR PT 1005 Page 311 ratio 31 “ The
courts, including the supreme court has no jurisdiction to question
the lawmaking power of the National Assembly and the House of
Assembly of states. This is because the power to make law is vested
in them and the court cannot by common law remove such powers from
them.
Written by F. C. Amandi (ESQ.)
Franklinamandi8@gmail.com or hisexcellencylegal@yahoo.com
A lot of controversies have been trailing the amendment of the
electoral Act by the National Assembly, ranging from the refusal of
assent by the president to the current court order restraining the
National Assembly from taking any further steps in respect of the
said amendment.
The bill to amend the current Electoral Act having been accented
to by the two houses of the National Assembly on Wednesday 14th
February sent to senate for presidential assent which the president
declined by a letter which he wrote the senate by Section 58(4) of
the Constitution which letter which was headed PRESIDENTIAL
DECISION TO DECLINE ASSENT TO THE ELECTORAL (AMENDMENT) BILL 2018
dated 8th March 2018. In the letter the president sited reasons for
declining assent to the proposed amendment which reasons are as
follows:-
1. That the propose amendment of the sequence of elections in
section 25 the Electoral Act may infringe upon the constitutionally
guaranteed discretion of the Independent National Electoral
Commission(INEC) to organize undertake and supervise elections
provided in section 15(A) of the third alteration to the
Constitution of the Federal Republic of Nigeria 1999 as
amended.
2. The amendment of Section 138 of the Electoral Act to delete two
crucial grounds upon which an election may be challenged by
candidates, unduly limits the rights of candidates to a free and
fair electoral review process.
3. The amendment to Section 152(3)-(5) of the Electoral Act may
give rise to constitutional issues over the competence of the
National Assembly to legislate over Local Government election.
Meanwhile just on Wednesday 15th of March 2018, a Federal High
court sitting in Abuja had ordered the National Assembly to suspend
all further steps in respect of the amendment, this it hinged on a
suit filed before it by Accord party and that it has powers under
section 6(6) of the constitution to preserve the subject matter of
dispute between parties pending the determination of issues raised
before the court.
I shall distill three important questions of law from all these
happenings as follows :-
1. Does section 15 of the third alteration the constitution empower
INEC with powers to order the sequence of elections and if that is
so;
2. Does that make the provisions of 25 of The Electoral Act a
matter over which the National Assembly cannot legislate on?
3. Does the court have powers to restrain the National Assembly
from carrying out its constitutional lawmaking functions?
On the first issue: Section 15(a) of the third alteration to the
constitution of the Federal Republic of Nigeria 1999 as amended
provides that “The commission shall have power to (a) Organise,
undertake, and supervise all elections to the offices of the
president and vile president, the Governor and Deputy Governor of a
state, and to the membership of the Senate, House of
Representatives and House of Assembly of each state of the
federation.
Having regards the context in which the president sited this
section of the supreme law, a question readily call to mind; What
does the lawmaker in section 15(a) of the third alteration to the
constitution intend when it said that the commission shall have
powers to ORGANISE, UNDERTAKE AND SUPERVISE ALL ELECTIONS? Does it
entail for INEC to order the sequence of election? It need be
pointed out here that Section 25 of the Electoral Act already
provided the order or sequence in which election are to be
undertaken by INEC, It says “Elections into the offices of the
President and 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 shall be held in the following order-
(a) Senate and House of Representatives
(b) Presidential election; and
(c) State House of Assembly and Governorship elections.
IT IS THE INTENTION OF THE LAWMAKER THAT IN THIS ORDER THE
COMMISSION SHALL HOLD ELECTIONS ON A DATE TO BE FIXED BY IT IN
ACCORDANCE WITH THE CONSTITUTION AND THIS BILL.
Of course a reading of Section 15(a) of the third alteration to
the constitution and Section 25(1) of the electoral Act together is
clear that the law is certain on the sequence of conducting
elections, however the commission shall have the discretion to
appoint the dates on which such election are to hold and that is
the discretion I understand the president to be talking about in
his letter, other this ; I don’t want to believe that the president
has interpreted Section 15 of the third alteration to the
constitution to mean that INEC has a discretion to exercise over
sequence of elections.
Whatever the situation is, the powers the National Assembly to
remove any powers it wishes to remove from INEC has received
judicial blessings in the Supreme Court case of ACTION CONGRESS V.
INEC Per Onnoghen JSC AS FOLLOW- Much has been said about a
decision such as this leading to all sorts of difficulties. My
answer is simple that the Judiciary does not make laws; that
function or duty is by constitutional arrangement and provision
assigned to the legislature which in the instant case has enacted
the Electoral Act, 2006 to guide all stakeholders in the conduct of
the 2007 General Elections in Nigeria and post election
proceedings. The duty of the judiciary is to interpret the
provisions of the relevant laws and constitution and not to amend,
add to or subtract from provisions of the relevant laws enacted by
the legislature. In the instant case, the legislature thought it
right and proper and for good reason to take away the powers of the
respondent(INEC) to disqualify candidates earlier granted it by the
very legislature . In the light of this decision you can see that
the Legislature reserves every power to strip INEC of whatever
power which it exercises by an Act of the National Assembly.
On the second issue- even if the question in the first issue
above is to be answered in the affirmative The powers in question
are given to it by an Act of the national Assembly and to be
exercised in line with law giving it that power. The fact that the
constitution empowers INEC to Organise, Undertake and Supervise
elections, does not in any way mean that it has limited the powers
of the National Assembly the amend laws enacted by it in line with
laid down procedure?
The fact remains that irrespective of whatever a law provides
for, or whatever powers a law confers on a body, It is still the
Primary constitutional function of the National Assembly to make
laws and it is seized of the constitutional powers to amend laws
made by it and in doing this, the provision of such law is
immaterial. Note however that these are merely academic issues
because the president is not seized of powers to interpret the
constitution and the presidential assent can be overridden subject
to procedure, thus Section 58(5) of the constitution provides
that(where the president withholds assent and the bill is again
passed by two-thirds majority of each House, the bill shall become
law and the presidents assent shall not be required.
On the third issue which is the pressing constitutional issue at
hand- Does the court have powers to restrain the National Assembly
from carrying out its constitutional legislative functions?
The court here hinged its order on a suit it said was filed by
Accord party and that section 6(6) of the Constitution empowers it
to safe guard the subject matter of a dispute pending its
determination by the court. I will pause here to ask some
questions? What dispute are we talking about here? A dispute that
the legislature is carrying out its constitutional functions? Does
a political party have a locus standi to challenge the National
Assembly in carrying out its constitutional duties? Does section
6(6) of the constitution confer locus standi? In AMAH V. NWANKWO
(2007) 12 NWLR, There are two tests for determining locus standi of
a party.
They are:
a. The action must be justiciable; and
b. There must be a dispute between the parties. See also OGBUEHI V.
GOVERNOR OF IMO STATE. 1995 9 NWLR PT 417.
Is the action by Accord party justiciable? In FEDERAL GOGERNMENT OF
NIGERIA V. NATIONAL ASSEMBLY “ A suit challenging the legislative
duty of the national Assembly cannot pass the justiciability
muster.
Can there be a dispute between a political party and the
National Assembly in carrying out its internal constitutional
duties? I think not.
Secondly, can section 6(6) of the constitution as sited by the
court confers locus standi- this question was expressly answered by
the court in AMAH V. NWANKWO(SUPRA) Section 6(6) of the
constitution does not confer locus standi but prescribes the extent
of the courts judicial powers. See also FAWEHINMI V. IGP 2002 7NWLR
PT767, OWODUNMI V. REGISTETRED TRUSTEES OF CELESTIAL CHURCH OF
CHRIST 2000 10 NWLR PT 675.
Section 4(1) of the Constitution is clear in vesting the
legislative powers of Federation in the National Assembly, 4(2) (3)
(4) are also clear on matters over which the National Assembly can
make laws. Sections 6 and 5 also respectively provides for the
executive and legislature respectively. This goes to show how
deeply rooted the principle of separation of powers is rooted in
our constitution.
In 1981 the Supreme court cut down such invasion by the national
assembly which sought to curtail or regulate the powers of the
court in the absence of a principle Enactment Act.
This was the case of PAUL UNONGO V. APER AKU & ORS.
1981-1990 LRECN 1, Where it reiterated the doctrine of separation
of powers , the independence of the judiciary and frowned at ouster
and maintained that the Supreme Court has inherent powers to
control its internal proceeding subject to Section 6(6) b of the
1979 Constitution and that the national Assembly lacks powers to
legislate on matter of rule of practice and procedure for election
petition in the absence of any principal enactment.
However with the advert and delay in electoral litigation in
order to take care of this delay in elections litigations , the
1999 Constitution was amended spelling out the lifespan for
electoral litigations such as 180 days from the date of declaration
n of results for the tribunal to conclude and deliver judgement and
60 days from the date of delivery of such judgement on those on
appeals within which the judgement must be delivered. See section
29 of the 1st Alteration and section 285 of the constitution. The
Supreme Court now has no hesitation in giving its legal imprimatur
to this constitutional amendment in the case of ANPP V. GONI(2012)
2 LRECN 440. The first case to test the lifespan of electoral
litigation. (this is by-the-way)
In the light of decisions such as that in UNONGO V. APER AKU, if
the legislature was held by the court to be lacking powers to give
directives to the court on how to carry out its function; does that
not imply also that the court cannot interfere in the lawmaking
functions of the legislature by way of making orders as to when it
should suspend or continue a process of making or amendment of a
law? This have received judicial blessings in cases such as in
FEDERAL GOVERNMENT OF NIGERIA V. NATIONAL ASSEMBLY, “It is doubtful
whether any suit challenging the legislative procedure of the
National Assembly can pass the justiciability muster.
In UGWU V. ARARUME (2007) 12 NWLR (PT1048) The court held that
we operate a constitutional democracy with powers constitutionally
assigned to three recognized arms of government, namely; the
Executive, the Legislature and the Judiciary. It is the duty of the
Legislature to make laws which are to be interpreted by the
judiciary and executed by the executive arm of the government.
Finally, in ATTORNEY GENERAL OF ABIA STATE V. ATTORNEY GENERAL
OF THE FEDERATION 2006 16 NWLR PT 1005 Page 311 ratio 31 “ The
courts, including the supreme court has no jurisdiction to question
the lawmaking power of the National Assembly and the House of
Assembly of states. This is because the power to make law is vested
in them and the court cannot by common law remove such powers from
them.
Written by F. C. Amandi (ESQ.)
Franklinamandi8@gmail.com or hisexcellencylegal@yahoo.com