Legal Fireworks Loom Between Executive, Legislature over Electoral Act

GAVEL

Udora Orizu writes that a fierce legal battle is imminent between executive and legislative arms of government following the decision of the National Assembly to appeal the judgment of the Federal High Court asking the Attorney General of the Federation, to delete Section 84(12) from the Electoral Act recently signed into law by President Muhammadu Buhar

The two chambers of the National Assembly last week resolved to appeal a court judgment which nullified Section 84 (12) of the Electoral Act 2022. The Senate and the House of Representatives respectively announced their resolve to challenge the court ruling at their plenary sessions Wednesday, March 23.

The Federal Government of Nigeria is composed of three distinct branches namely the Executive, Legislature and Judiciary, whose powers are vested by the 1999 Constitution (as amended).

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. While the legislative branch makes the law, the executive branch enforces the law, and the judiciary interprets the law.

However, penultimate week, the separate functions of the three arms of government were breached by the judiciary, which disregarded the powers of the legislature by directing the executive to delete a section of a law of parliament. 

The rift started a fortnight ago 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 Section 84 (12) of the Electoral Act 2022 which states that; “No political appointee at any level shall be a voting delegate or be voted for at the convention or congress of any political party for the purpose of the nomination of candidates for any election”. 

Buhari had on December 21, 2021, again rejected the bill based on the provision on direct primaries. Buhari had during an interview on Channels TV, January 5, 2022 stated his readiness to sign the proposed legislation if the National Assembly made the necessary adjustments. He said such changes must include the addition of consensus candidates, indirect primary options to the mode of selecting candidates 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 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 agreed to sign 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.

However, despite the alleged commitment to the president, the lawmakers reneged on that agreement and overwhelmingly threw out the motions seeking to amend section 84(12) of the newly signed law. 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 (PDP), barring the President 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 (SAN) had revealed that options were being explored by the federal government to address the controversial section. Few days later, a Federal High Court in Umuahia, struck down the section, insisting that it was at variance with the provisions of the 199 Constitution.

A member of Action Alliance, 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 red and green chambers of the National Assembly resolved to appeal the judgment for the court to set the judgment 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) which stated that the National Assembly was empowered by virtue of the provisions of the constitution 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 lawmaker 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.”

At the House of Representatives, the lawmakers while resolving to appeal the judgment, also resolved to file a complaint to the National Judicial Council (NJC) against the conduct of the judge, Justice Evelyn Anyadike, who gave judgment 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 judgment, describing it as encroaching on the principle of separation of powers.

Soli described the court judgment 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 agrees that President 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 judgment 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, has said implementing the court ruling was a work in progress. Malami who made this known, while speaking with newsmen at the State House, Abuja, at the end of the weekly virtual Federal Executive Council (FEC) meeting presided over by Buhari said: “My clear response is the fact that truly there exist a court judgment. By the judgment, the court directed the Office of the Attorney-General, to take the necessary steps to delete the provision, which in essence implies that the provision should not form part of our laws. Whether it has been deleted, or has not been deleted, is indeed a function of agencies of government and associated relevant parastatals, but the true position of it in that respect, is the fact that government printers, and indeed Law Reform Commission, among others, that are responsible for the codification and gazetting of our laws, are working naturally, hand in hand with the Office of the Attorney-General for the purpose of ensuring that what goes into our laws are indeed in line with the provision of the law.”

What Next?

With the federal government’s stance, it appears that a fierce legal battle looms ahead among the three arms of government. The House Spokesman, Hon. Benjamin Kalu briefing journalists, last Thursday, disclosed that the parliament will be heading to court next week to appeal the judgment. He insisted that the law is still alive pending Supreme Court decision on its appeal.

He said, “One thing I want Nigerians to know is that the Electoral Act is alive and the Independent National Electoral Commission (INEC) is working with the Act. There is no impediment on the act until our right of appeal has been fully exercised. If possible, by next week, we will be in court. If we miss it by tomorrow, by next week, we will be in court. So, exercise no fear, the Act is alive. A difference should be made between who is a public servant and a political appointee knowing fully well what the provision of 84(12) was not addressing public servants. It was addressing political appointees.”

He, however, wasn’t clear on what will be the parliament’s next line of action if the case gets thrown out by the court.