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Senate faults court order, asks CJN to caution judicial officers

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Nigerian Senate.

Nwabueze, others affirm lawmakers’ constitutional powers
The National Assembly has rejected all the arguments President Muhammadu Buhari gave for withholding assent to the Electoral Act Amendment Bill 2018.It based its position on a report submitted by its legal department.

The Senate at its executive session on Tuesday had referred the president’s veto to the department for advice. Upon the receipt of the report on Wednesday, the Senate delegated a team of senators, led by Deputy Senate President Ike Ekweremadu, to consult the House of Representatives. This meeting, according to a Senate source, was successful.

The report points out that the president’s claims – that the amendment introducing a specific sequence for elections under Section 25 of the Principal Act 2010 infringed on the discretion of the Independent National Electoral Commission (INEC) to “organise, undertake and supervise elections” – is flawed.

It states: “The correct legal position, however, is that by the Constitution of the Federal Republic of Nigeria 1999 First Alteration Act 2010, Act No. 1, specifically, Section 5 provides that Section 76 of the Principal Act is altered thus (a) subsection (1) in line 2, by inserting immediately after the word ‘commission’ ‘the words’ in accordance with the Electoral Act.

“From the above amendment, it is crystal clear that the power to regulate the principal elements of all federal electoral processes were by the above amendment removed from the Independent National Electoral Commission and vested in the Assembly, which has the power to make laws for peace, order and good governance of the Federal Republic of Nigeria.”

According to the report, “The argument of the president that the sequencing of the elections under Section 25 infringed on the discretion of INEC, without expressly pointing out what specific aspects or ways and manner, cannot be a basis for legal or constitutional argument or decision.

“With due respect, the opinion expressed is too general to establish a basis for the exercise of a legal or constitutional power, more so because ‘discretion’ is a principle governed by the rules of administrative law and not that of constitutional law on which the president claimed to have anchored his arguments.”

The report explains: “The new subsection (3) to section 138 actually clarifies the ambiguity contained in subsection 1 of the Principal Act and reinforces the constitutional standards specified in Sections 65, 106, 131 and 177 of the Constitution of the Federal Republic of Nigeria 1999.”

According to the report, “It is within the competence of the National Assembly to make laws in respect of the procedure regulating elections into local government councils in accordance with item 11 of the concurrent legislative list of the 1999 Constitution as amended.”

Also yesterday, the Senate charged the Chief Justice of Nigeria (CJN), Walter Onnoghen, to caution judicial officers against granting court orders capable of truncating parliamentary operations.

The Federal High Court, Abuja, had on Wednesday given an order restraining the National Assembly from passing the bill into law. Justice Ahmed Mohammed also asked the defendants to maintain the status quo ante belum, pending a March 20 adjournment. He gave the order while delivering ruling on an oral application for a preservative order brought by Accord Party.

Adopting a motion sponsored by the Senate Minority Leader Godswill Akpabio, the chamber described the ruling as unfortunate. It argued that the order breached the separation of powers and agreed Akpabio should write a letter to the CJN to draw his attention to the matter.

Legal experts meanwhile have been shedding light on the implication of the court order. Prof. Epiphany Azinge, a Senior Advocate of Nigeria (SAN), said: “I think it is a disservice to the constitution and its provision as far as separation of power is concerned. I don’t think that the legislature can tomorrow pass a motion that can stop the courts from sitting, except it is by legislation, so to speak. Even constitutionally, that cannot fly because nothing can be done that would amount to the usurpation of the powers of the court.

“I believe that we must respect constitutional provisions, as far as the sharing of power among the organs of government is concerned. We must be very careful to avoid anything that is untoward as we draw nearer to elections. We have passed through this channel before and I don’t think we need it again.”

Prof. Maxwell Gidado (SAN) noted: “It is an interim order. I will rather like to wait and hear their ruling on it. What they just want to do is maintain the status quo until Tuesday, when they will hear the substantive matter. Otherwise, as far as the law is concerned, the court has no jurisdiction to stop the National Assembly from performing its duty.

“Processes of lawmaking can be challenged, if they do not follow laid down rules. But the act of overriding presidential veto is a constitutional power. As far as I am concerned, there is no court of law that can prevent them from carrying out that function because it is a constitutionally guaranteed power, if only they can muster the two-thirds’ majority.”

Mr. Sylva Ogwemoh (SAN) said: “The judge made it clear in that order that it is not a restraining order but to maintain status quo pending the determination of the substantive suit on Tuesday. Whether the substantive issue before the court has merit or not is not something that can be determined now.

“So, the plaintiff is saying he has come to ventilate his grievance. It is the duty of the court to listen to the plaintiff vis-a-vis the defendants and come to conclusion whether it has merit or not. And before it does that, the court wants to be sure that there is a balance between the two parties.

“The order is not saying the National Assembly does not have powers to pass a bill but to ensure that nothing is further done until the issues before it are determined.”

Renowned constitutional lawyer, Prof. Ben Nwabueze (SAN), argued that Paragraph 15(a) of the Third Schedule to the 1999 Constitution does not confer INEC with the power to determine the sequence of elections.

He made the position known in a letter to Senate President Bukola Saraki yesterday. Nwabueze stressed that what Paragraph 15(a) says is that INEC shall have power to organise, undertake and supervise all elections to the offices of the president and vice president and to the membership of the Senate and House of Representatives, and organise, undertake and supervise all elections to the offices of governor and deputy governor of a state and to the membership of the House of Assembly of each state of the federation.

He said the United States, usually relied upon in this matter by INEC and others, offers no precedent whatsoever for the idea of one common electoral body organising and conducting elections for the offices of the president, vice president and members of Congress, as well as elections to the offices of governor, deputy governor and members of the state legislative assemblies.

The idea, he said, is not only totally unknown in the United States but is also forbidden in true federalism. “No question therefore ever arises of a common election timetable or the order or sequence of elections to offices at federal as well as state levels. Our craze for uniformity when our diversity dictates otherwise, as if uniformity is a magic wand for unity, is the force driving the whole unnecessary controversy,” he said.

According to him, “If we must continue to have one common electoral commission for federal elective political offices, as well as for state elective political offices, then we must get away from the idea of a common electoral timetable for the two sets of offices, whose functions are separate and different and have nothing linking them together.”

He added: “Federalism in Nigeria recognises and is built upon the immense diversity of the country, the demands of which must not be sacrificed on the altar of uniformity of election timetable. A uniform timetable for both federal and state government elections would undermine and imperil the foundation of the federal system built, as earlier stated, on the heterogeneous nature of the society comprising peoples of different cultures spread over a huge expanse of territory, which gives rise to situations and circumstances that may make it impracticable to adhere rigidly to a uniform election timetable.”


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