Electoral Act: N’Assembly Speaks with One Voice

GAVEL

Udora Orizu writes that members of the Senate and House of Representatives, last week, rejected further amendment to the Electoral Act, 2022 as requested by President Muhammadu Buhari

For the first time, since the return of democratic rule in 1999, the National Assembly went against agreement reached with sitting president by throwing out President Muhammadu Buhari’s request to amend contentious clause 84 (12) which abridges constitutional right of appointees to vote and be voted for.

Since after the 2011 elections, there had been agitations for the electoral law to be amended to enable it to accommodate the use of technology and generally improve the electoral process. However, attempts to amend the Act in various assemblies have been futile.

For decades, the rubber stamp tag has continued to trail lawmakers in both chambers. In Nigeria there exist three arms of government that include the Executive, Legislature and Judiciary. These arms of government function on the principle of separation of powers, however, it is common knowledge that the main power resides with the executive arm, particularly, the presidency. 

Though the 9th Assembly has been insisting on its independence, its actions and inactions since their inauguration, have reinforced the idea by many Nigerians that it is a “rubber-stamp of the executive”.

An example can be seen in the way the lawmakers confirm ministerial nominees of President Buhari, with clearance given without any detailed inquiry into their background and capacity to serve as ministers. The rubber-stamp tag by Nigerians can also be seen in how fast the lawmakers approve loans for the executive arm of government, despite rising debt profile, cry by Nigerians and members of the opposition in the chamber to discourage the loan.

Another instance can be seen when in December 2021, despite the resolve and threat by many senators to overrule President Muhammadu Buhari’s veto of the Electoral Act Amendment Bill, the Senate, backed down from its resolve. In place of the move, which had seen the collection of signatures for the proposition, the upper chamber resolved to liaise with the House of Representatives on how best to handle the president’s rejection of the electoral reform bill.

The president had on December 21, 2021, again rejected the bill based on the provision on direct primaries. So, when he spoke during an interview on Channels TV, January 5, it was no surprise that the legislature known to always heed to majority of his requests, included his suggestion of consensus as an option in the electoral bill.

Buhari had in the interview stated his readiness to sign the Electoral Act Amendment Bill after the National Assembly makes the necessary adjustments.

He said such changes must include the addition of consensus candidates, indirect primary options to the mode of selecting a candidate for an election, as against the initial direct mode as the only option to conduct primaries by political parties.

The new bill passed on to the President on January 31, 2022 corrected the issue of direct primaries and rather added the indirect and consensus means of selecting candidates as alternatives. However, the House of Representatives again introduced another controversial provision in which it proposes 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.

Before Buhari finally signed the bill into law on February 25, 2022, he was said to have reached an agreement with both the Senate and the House of Representatives for the lawmakers to expunge the controversial Section 84(12) in the Act which deprived federal appointees their constitutional rights to vote and be voted for ahead of primary elections of political parties.

The Rejection

Despite commitment to the president last week reneged on that agreement and overwhelmingly threw out the bill seeking to amend the newly signed Electoral Act, 2022. The bill was unanimously rejected by the lawmakers when it came for second reading on the floor during plenary, amidst a mild drama.

There were strong indications before plenary that the senators would kick against the bill despite the position of the President of the Senate, Ahmad Lawan that the red chamber would go ahead to consider the bill notwithstanding a court order barring it from doing so.

The court had, in a ruling delivered by Justice Inyang Ekwo, on an ex-parte application by the People’s Democratic Party (PDP), barred 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. The move to reject the bill was signaled by a point of order from Senator Adamu Aliero 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.

The 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.”

Aliero, therefore, advised the upper chamber to step down further consideration of the bill pending the vacation of a court order delivered by the Federal High Court, Abuja, on Monday.

The senator maintained that going ahead with the amendment of the Act would be clear conflict with the subjudice rule in law which prevents the legislature from deliberating or considering any matter already before a court of competent jurisdiction.

Aliero explained: “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 set aside that order, and I think I’m speaking the opinion of my colleagues here.”

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 exercising its constitutional duties amid following due process.

Lawan said: “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. I think we are not breaching any law, in fact, we are trying to promote democracy because to do otherwise may mean that one day someone will go to court and say that the Senate of the National Assembly should not sit.

“I want to appeal to all of us, that we are on the right course and my ruling remains that we are going ahead to consider the proposal which the Leader of the Senate is leading the debate. At the end of the debate, we are going to vote, and the vote will decide the fate of the bill. I’m sure all of us know that whatever we do here is to protect democracy and the sanctity of the upper chamber.”

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

The real drama started unfolding when the Minority Leader, Senator Enyinnaya Abaribe (Abia South), kicked against the deletion of Section 84(12) of the Electoral Act Amendment Bill 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.

“One of those rules is the fact 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 and contest an election and become candidates and continue to sit in that office until the date of election. So, how would we continue to debase democracy in this way? Mr. President, I think, a cursory look at this paper shows that this paper is dead on arrival. And I urge you, my colleagues, to help us to continue to deepen democracy by insisting that this bill not be read a second time in any manner whatsoever.”

The rejection of the bill continued with the bombshell from the APC Senator, representing Kogi West, Smart Adeyemi, who also, vehemently, expressed his disapproval to the consideration of the bill.

Adeyemi 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 you own case. In any election, where people have the added advantage of holding executive power, either by proxy or directly or by appointment, for such people to have access and compete with others who came from the street, I think 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.”

A last minute move by the Deputy Senate President, Ovie Omo-Agege, to save the bill from sudden death by swaying his colleagues’ standpoint, also suffered a devastating blow.

Omo-Agege said: “The framers of the constitution, knew that a day like this will come. And notwithstanding, it clearly stipulated in the constitution those provisions with qualification and disqualification on running for political office. If it was their intent that for holding a political office, you should not contest election, they would have so provided.

“There were some provisions some of us voted for at the beginning of section 84(2) that says no political party shall seek to disqualify anybody by importing into the process a provision for qualification or disqualification not   otherwise provided for in the constitution.”

When the bill was eventually put to a voice vote for second reading by the Senate President after its consideration, it received a resounding ‘nay’ from senators in the majority across party lines.

The Senate President made a futile attempt to save the bill when he put the question for a voice vote the second time and the senators maintained a resounding ‘nay’ again, leaving the presiding officer no other option than to hit the gavel in favour of the anti-bill lawmakers.

At the House of Representatives, the lawmakers promised to obey court order barring the lawmakers from amending the bill.

The Spokesman of the House, Hon. Benjamin Kalu who made this known while briefing journalists after plenary last, Tuesday hinged the Green Chamber’s decision to obey the court injunction on the principle of separation of powers, saying that when any issue is before the court you don’t interfere. 

According to him, if the Executive didn’t want that 84 (12), it falls on them to seek the attention of court for the removal of that injunction, before the legislature will be allowed to touch it.

Will the Rejection Brew Distrust Between the Executive and Legislature?

From the debates on if the bill should be amended or not, it’s clear that regardless of the court ruling or not, lawmakers do not want that section expunged. Surprisingly most lawmakers from the ruling APC agreed with the opposition. With this rejection, it is believed that going forward there might be distrust between the executive and the National Assembly, which could negatively impact future bills sent to the executive for assent.