MONDAY DISCOURSE At Last, N’Assembly’s Position on Electoral Act Prevails
Udora Orizu writes that the Supreme Court’s judgement on section 84 (12) of electoral act has reaffirmed legislative supremacy of the National Assembly and doctrine of separation of powers
The Supreme Court last Friday struck out the suit filed by President Muhammadu Buhari and the AttorneyGeneral of the Federation and Minister of Justice, Abubakar Malami, challenging section 84(12) of the Electoral Act 2022, which banned political appointees from voting at the primaries of political parties, for being incompetent and lacking in merit.
The Nigerian Federation is composed of three distinct branches namely the legislative, executive, and judiciary, whose powers are guaranteed by the 1999 constitution of Nigeria. The constitution provides a separation and balance of powers among the three branches and aims to prevent the repetition of past mistakes made by the government. The Legislative branch (makes the law), the Executive branch (enforces the law) and the Judicial branch (interpretes the law).
This separate functions was breached earlier this year by a federal high court in Abia state, which disregarded the powers of the legislature by directing the Executive to delete a section of a law of parliament.
The rift started in March, when the federal lawmakers for the first time, since the return of democratic rule in 1999, went against agreement reached with a sitting President by throwing out President Muhammadu Buhari’s request to amend clause 84 (12) of Electoral Act Amendment Bill.
The House of Representatives had introduced the controversial provision in which it proposed that all political appointees seeking to contest elective offices should resign long before declaring their interest. The provision led to some close aides of the President and governors moving against the Bill and urging the President not to sign it into law.
However, Buhari finally signed the bill into law on February 25, 2022.
The President was said to have reached an agreement with the leadership of both chambers of National Assembly to expunge the controversial Section in the Act which deprived federal appointees their constitutional rights to vote and be voted for ahead of primary elections of political parties. But, despite the reported commitment to the President, the federal lawmakers reneged and overwhelmingly threw out the bill seeking to amend section 84(12) of the 2022 Electoral Act.
The lawmakers hinged their decision on a court ruling delivered by Justice Inyang Ekwo, on an ex-parte application by the People’s Democratic Party, barring the President Muhammadu Buhari, the Attorney General of the Federation and the Senate President from tampering with the newly amended Act. The Court maintained that the Electoral Act, having become a valid law could not be altered without following the due process of law.
Following the lawmakers refusal to amend
the Act, Attorney General of the Federation, Abubakar Malami revealed that options were being explored by the Federal Government on the controversial section. Few days later, a Federal High Court in Umuahia, annulled the section, insisting that it was at variance with the provisions of the Nigerian Constitution.
A member of Action Alliance (AA), Nduka Edede, had filed a suit before the Federal High Court in Umuahia, challenging the section. In the suit marked FHC/UM/CS/26/2022, the plaintiff asked the court to determine if the section in question was legal and to strike it out if it was at variance with the constitution. The AGF, who was a defendant in the case, did not oppose the suit but agreed with the applicant.
National Assembly Heads to Court
Following the Court ruling, in a unanimous decision at plenary, the lawmakers resolved to, appeal the judgment for the Court to set the judgement aside. Citing Order 42 of the Senate Standing Orders on Personal Explanation, Senator George Thompson Sekibo (PDP, Rivers East) during plenary, challenged the judgment of the court on Section 84(12).
He cited Section 4 of the 1999 Constitution (as amended) saying the National Assembly was empowered by virtue of Its provisions to make laws for the peace, order and good governance of Nigeria. The motion had 84 co-sponsors apart from Sekibo. Sekibo observed that the judge in his ruling held that Section 81(12) of the Electoral Act 2022, was inconsistent
with Sections 66(1)(f), 107(1)(f), 137(1)(g) and 182(1)(c) of the 1999 Constitution of the Federal Republic of Nigeria as amended.
The ranking Senator warned further that, “letting the judgment go without concern will become a precedence on which any person could go to court and obtain judgment to ridicule the good intentions of the National Assembly as an institution.”
In similar vein, lawmakers in the House of Representatives, while moving to appeal the judgement, also resolved to file a complaint at the National Judicial Council (NJC) against the conduct of the Judge, Justice Evelyn Anyadike, who gave judgement against the National Assembly despite not being parties to the suit.
The resolutions of the lawmakers were sequel to the adoption of the prayers of the motion moved by the Speaker of the House, Hon. Femi Gbajabiamila, who converted as a motion, the matter of privilege on the issue presented by Hon. Sada Soli (APC, Katsina).
Members of the House, across party lines took turns to condemn the court judgement, describing it as encroaching on the principle of separation of powers.
Soli described the court judgement as an attempt to oust the jurisdiction of the parliament in making laws by directing an appointee of the executive to delete a law made by National Assembly.
In his ruling, Gbajabiamila, noted that while he agreed that President Muhammadu Buhari was entitled to take legal advice from the AGF, Abubakar Malami, he however won’t allow the institution which he heads currently to be ridiculed under his watch.
The Speaker, described the plaintiff as a meddlesome interloper who is worried about something that doesn’t affect him.
While wondering why the judgement was taken in Abia State where the defendants don’t reside, Gbajabiamila said the judiciary while interpreting a law as stipulated in the constitution should have come to the parliament for clarity.
He therefore ordered the AGF Malami to desist from implementing the court ruling until the matter is resolved.
Malami Insists on Implementing Court Ruling
Despite the directive from the lawmakers urging him to desist from implementing the court ruling until the matter is resolved, the Attorney-General of the Federation (AGF) and Minister of Justice, Abubakar Malami, came out to say omplementing the court ruling was a work in progress.
The House Spokesman, Hon. Benjamin Kalu, however, was quick to counter Malami saying
the parliament will be heading to court to appeal the judgement. He insisted that the law is still alive pending Supreme Court decision on the case.
President Buhari Asks Ministers to Resign
On May 11, 2022, while still awaiting the apex court judgement on the matter, President Muhammadu Buhari obeying the controversial section as stipulated in the electoral act, directed all political appointees interested in vying for any elective position in 2023 to resign.
Information and Culture Minister, Alhaji Lai Mohammed, who disclosed this to newsmen after the Federal Executive Council (FEC) meeting at the State House, Abuja said the President directed all Ministers with political ambition to turn in their letters of resignation within a week.
Supreme Court Ruling
On June 24, 2022, the Supreme Court struck out the suit challenging section 84(12) of the Electoral Act 2022 banning political appointees from voting at the primaries of political parties, for being incompetent and lacking in merit.
The apex court, in a unanimous decision described the suit as an abuse of court process and subsequently struck it out.
According to Justice Musa Mohammed-Dittjo, who led a seven-man panel of the Supreme Court, the plaintiffs having earlier assented to the said section 84(12) of the Electoral Act 2022, cannot turn around to approach the court to strike it down.
The apex court faulted the federal government’s request on the grounds that, “there is no provision in the Constitution that vests the President the power to challenge the constitutionality or desirability of a legislation after he has assented or denied his assent”, especially in the instant case.
The Supreme Court has reaffirmed the legislative supremacy of the National Assembly, and have also done that in the spirit of doctrine of separation of powers, understanding that the efficiency of government will be driven by this democratic principle where every arm stays within the parameters of their mandate and to become the best in their assignment. In conclusion, the Supreme Court has laid their own brick in the efforts towards electoral reform by this judgement