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Electoral Act Amendment: Lawyers, others hail as Senate rejects Buhari’s request

By Joseph Onyekwere (Deputy Editor), John Akubo, Ameh Ochojila (Abuja) and Saxone Akhaine (Kaduna)
10 March 2022   |   3:48 am
Contrary to expectations that the Senate would succumb to the request by President Muhammadu Buhari to further amend Electoral Act 2022 by deleting section 84(12), lawmakers yesterday...

Muhammadu Buhari<br />PHOTO: Twitter

Senate gradually asserting its independence, says Adegboruwa
• It’s a victory for democracy – Awa Kalu
• Lawmakers should be commended for rising above being rubber-stamp, Ogbankwa declares
• Time not ripe for further amendment of Electoral Act, Pius insists
• Rejection in tune with demands of Nigerians, says CNPP

Contrary to expectations that the Senate would succumb to the request by President Muhammadu Buhari to further amend Electoral Act 2022 by deleting section 84(12), lawmakers yesterday, roundly rejected the request, fueling commendations from various quarters.

This followed the failure of the Electoral Act Amendment Bill to scale through second reading on the floor during plenary, despite earlier posture by the Senate President, Ahmed Lawan that the amendment must happen, regardless of a court order, barring it from doing so.

Surprisingly, the proposed law, “A bill for an Act to Amend the Electoral Act 2022” was overwhelmingly rejected.

Before a voice vote on the bill, which nays had it, several lawmakers spoke against the further amendment of the Act and urged the Senate to abide by the court ruling, which stopped the National Assembly from tampering with the electoral law.

President Buhari had, in a letter to the National Assembly last week, asked the federal lawmakers to amend the Act, by deleting Section 84 (12), which, according to him, constitutes a “defect” that is in conflict with extant Constitutional provisions.

The section required political appointees to resign their appointment before participating in primary elections as either delegates or candidates.

A Federal High Court in Abuja on Monday barred President Buhari, the Attorney General of the Federation (AGF) and the Senate President from tampering with the Act.

The judge, Inyang Ekwo, in a ruling on an ex parte application by the Peoples Democratic Party (PDP), said the Electoral Act had become a valid law and could not be amended without following the due process of law.

The Court maintained that the Electoral Act, has become a valid law could not be altered without following the due process of law.

But the Senate President, Lawan, on Tuesday, postured that the court ruling would not stop the National Assembly from amending the Electoral Act 2022.

He said the court ruling violated the provisions of the 1999 Constitution (as amended) on Separation of Powers.

HOWEVER, in the move to reject the bill yesterday, Senator Adamu Aliero fired the first salvo for it to be stepped down after the Senate Leader, Yahaya Abdullahi, moved a motion for the bill to be read a second time.

Aliero, who came under a point of order, drew the attention of his colleagues to the provision of Rule 52(5) of the Senate Standing Order.

Order 52(5) provides that, “Reference shall not be made to any matter on which a judicial decision is pending, in such a way as might in the opinion of the President of the Senate prejudice the interest of parties thereto.”

He, therefore, advised the upper chamber to step down consideration of the bill pending the vacation of the court order delivered by Justice Ekwo Monday.

According to him, going ahead with the amendment of the Act was in clear conflict with the subjudice rule, which prevents the legislature from deliberating or considering any matter already before a court of competent jurisdiction.

“Going ahead to consider the bill obviously will mean that we are disrespecting that order, and this is an institution of the Senate – the symbol of Nigeria’s lawmaking body.

“We should not be seen to be disobeying the court order. No matter how bad that court order is, we should respect it.

“So, I’m of the opinion that we should stop considering this bill pending the time the court sets aside that order and I think I’m speaking the opinion of my colleagues here,” Aliero said.

The Senate President, while ruling on Aliero’s point of order, insisted that the move by the upper chamber to amend the Electoral Act was in line with its Constitutional duties.

“To be specific to this particular request, for us in the Senate, it is to look at the request and follow our due process.

“Looking at the request does not mean granting the request. Members of the National Assembly are at liberty to review the request to see if the arguments by the Executive arm of government are convincing enough.

“If the arguments are not convincing enough, the National Assembly can deny the request, and that is how it is. We have no encumbrance from that order. So, it is for Senators here to decide to vote for this amendment or vote against it, Lawan said.

The Senate leader, Yahaya Abdullahi was then given the floor to lead the debate on the Electoral Act Amendment bill.

Contributing to the debate, Senator Enyinnaya Abaribe (Abia South), kicked against the deletion of Section 84(12) of the Electoral Act as requested by President Buhari.

He said: “There are certain things that we see, which we think we don’t even have to come here to debate.

“One of those things is the fact that in every democracy all over the world, there are certain rules, which we don’t need to be told about. And that is that you cannot be a referee and a player on the same field. It is either you’re a referee or a player.

“So, every other place in the world where democracy is practiced, including Nigeria, we don’t need to be told that if we want to run for office, we have to resign. That is a sine qua non that we don’t even need to debate.

“Yet here we are today in Nigeria, and people think they can sit in an office, become candidates, continue to sit in that office until the date of election and contest the election.

“So, how would we continue to debase democracy in this way?

Mr. President, I think, a cursory look at this paper shows that it is dead on arrival. And I urge you, my colleagues, to help us to continue to deepen democracy by insisting that this bill will not be read a second time in any manner whatsoever.”

SIMILARLY, Smart Adeyemi (Kogi West), who was also opposed to the consideration of the bill said, “one of the hallmarks of democracy is justice, fairness and equity.

“Indeed, Mr. President, it is a settled matter in law that you cannot be a judge over your own case.

“In any election, where people have the added advantage of holding executive power, either directly, by proxy or by appointment, for such people to have access and compete with others who came from the street, I think it is an unjust society.

“Therefore, Mr. President, I disagree with all the arguments on the need to consider a decision that has already been settled,” he declared.

A move by the Deputy Senate President, Ovie Omo-Agege, to sway his colleagues were unsuccessful.

The bill, when eventually put to a voice vote for a second reading by the Senate President after its consideration, received a resounding ‘nay’ from Senators in the majority across party lines

During the voice votes, a drama had ensued as Lawan after calling out for votes was shocked that the Ayes was a lonely voice for which he decided to repeat the call asking his colleagues whether they did not hear him.

After the repeated call for votes, the Nays still had it overwhelmingly.

REACTING to the development, a human rights lawyer, Ebun Adegboruwa (SAN) said the decision of the Senate to reject the proposal for the amendment of the Electoral Act is commendable.

According to him, it shows that the Senate is gradually asserting its independence and autonomy of the legislature, which Nigerians have clamoured for over the years, especially since the inception of the 9th Senate.

His words: “The doctrine of separation of powers requires that all the three organs of government should be independent of each other to act as checks and balances to curtail excesses.

“The idea behind section 84(12) is to achieve a level playing field for all contestants and to avoid the abuse of power of incumbency by candidates who occupy public office over other candidates.”

Former Attorney General and Commissioner for Justice, Abia State, Chief Awa Kalu (SAN) said the rejection of the request means that the recently signed amended Act remains.

“It is a victory for democracy. Regardless of whatever relationship that exists between the lawmakers and the presidency, the most important thing is that the request is now academic. Even if it is reintroduced, it cannot be for now,” he said.

Convener of the Vanguard for the Independence of the Judiciary (V4IJ), Douglas Ogbankwa, said the rejection of the request is one of the hallmarks of democracy and commendable development.

According to the lawyer, such courage by the lawmakers would deepen democracy, expand the frontiers of representative democracy, obliterate the hitherto godfatherism, where the governorship or the presidency become a behemoth, irrespective of the yearnings and aspirations of the majority of Nigerians.

“It is democracy at work and the Senate should be commended for rising above the trappings of primordial instincts and the rubber stamp syndrome. Our democracy is alive and well,” he enthused.

Head of the department of public law, Ahmadu Bello University, Dr Salim Bashir Magahi, said the request for the amendment came rather too late.

According to him, the executive arm of government ought to have lobbied against the inclusion of the controversial provision during the earlier amendments.

He suggested that the executive could alternatively approach the court to give judicial interpretation to the controversial section of the Electoral Act.

“The executive may through the Attorney General of the Federation seek judicial interpretation from the courts to invalidate the aspects of the provisions of section 84(12) that has allegedly disenfranchised political office holders for being ultra vires the Constitution,” Dr. Magashi suggested.  

Abuja based lawyer, Danba Pius is of the view that the Senate acted within its Constitutional right to reject the Executive Bill from the President.

He said: “I do not think that the time is ripe for any amendment of the Electoral Act. With profound respect to the President, he was in a hurry to ask for an amendment. The law has to be applied first. It is upon application that we may discover its shortcomings and if need be, call for an amendment.

“The President needs not to lose sleep over any provision of the Act that he consented to on the ground that it runs contrary to the Constitution. This is because only the Court has the power to interpret and determine, which law contravenes the Constitution.

“Rule of law and separation of powers requires the President not to take over or usurp the powers of the judiciary by giving a judicial interpretation of which law contravenes the Constitution.” 

Pius, therefore, declared that throwing out the bill by the Senate is democracy in action and commendable.

ALSO elated by the development, the Conference of Nigeria Political Parties (CNPP) yesterday said, the Senate has again chosen to be in tune with the demands of the Nigerian people without a fight.

The CNPP in a statement signed by its Secretary-General, Chief Willy Ezugwu, explained that allowing clause 84 (12) to stay in line with the demands of the people has brought equity in the electoral process in Nigeria.

According to the group, it is an anomaly for the appointees of the Executive to become delegates in primary elections or be contesting for any position in the process of electing candidates in any election without first resigning their positions.

“The CNPP, therefore, urges Nigerians to maintain vigilance ahead of the 2023 general elections, to continue to safeguard the country’s democracy.

“Should the National Assembly remain resolute on the side of the electorate, its sin of being a rubber stamp legislature before now shall be forgiven,” the group declared.