THISDAY

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

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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

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Gbajabiami­la
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Buhari
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Lawan

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