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 Attorney-General 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 InyangEkwo, on an ex-parte application by the People’s Democratic Party, barring the President MuhammaduBuhari, 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, AbubakarMalami 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), NdukaEdede, 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 MuhammaduBuhari was entitled to take legal advice from the AGF, AbubakarMalami, 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, AbubakarMalami, 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 MuhammaduBuhari 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 panel in the unanimous judgment delivered by Justice Emmanuel Agim, agreed and upheld the submission of counsel to the National Assembly, KayodeAjulo, that the suit is not one of such cases in respect of which the court’s original and additional jurisdictions could be invoked under Section 23(2)(1) of the Constitution and Section 1(1)(a) of the Supreme Court (Additional Jurisdiction) Act 2002.

The Supreme court also disagreed with the plaintiffs that the suit was informed by the National Assembly’s failure to give effect to President Buhari’s request that Section 84(12) of the Electoral Act be deleted for allegedly offending the provisions of the Constitution.

According to Justice Agim, the suit touched on the essence of the powers given to the President by Section 58(4) of the 1999 Constitution, which he exercised by participating in its making.

Justice Agim held that since the President aided the creation of the Act, with the support of the AGF, both plaintiffs could not turn around to question its legality.

He said: “The Constitution did not provide for the involvement of the court by the President after exercising his powers under Section 58(4) of the Constitution one way or the other. I agree with the argument by the counsel to the National Assembly (Ajulo) that this suit is a reprobation of what the first plaintiff (the President) had approbated, and this cannot be allowed in law. Haven assented to the Electoral Bill 2022 and thereby accepted that it has become law, he cannot therefore bring a suit, contending that the act resulting from his assent is not constitutional, desirable and justifiable, thereby retracting from his assent.

“As it is, one of the cumulative requirements in Section 1(1)(a) of the Supreme Court (Additional Jurisdiction) Act 2002 for the invocation of the additional jurisdiction of this court to entertain an originating suit between the President and the National Assembly does not exist. The plaintiffs have no legally enforceable legal right or power that gives life to questions raised for determination in the originating summons, and that can be protected or enforced by the reliefs claimed for. The dispute in this case does not involve any question or include the existence or extent of any legal right to the plaintiffs. Therefore, this suit cannot be entertained by this court in the exercise of its additional jurisdiction under Section 1(1)(a) of the Supreme Court (Additional Jurisdiction) Act 2002.

National Assembly Reacts to Judgement

The Senate Spokesperson, Senator AjibolaBasiru, while reacting to the Supreme Court judgement said it’s a vindication of the National Assembly.

Basiru had blamed the Attorney general for always giving the President legal advise that cannot stand the test of judgement.

He said, “The judgement of the supreme Court just validate some of our opinions that the President is not receiving very sound legal advise from the office of the attorney general. Like he was also misled over the issue of grazing roots in the past, the same thing, having assented to a bill, the same President cannot go ahead to seek to delete an aspect of the bill. So we hope the President will be alive to getting second opinion on legal matters so that the Federal Government would not be embarrassed on plain legal matters that are very elementary.

“It shows that the judgement did not consider the constitutionality or otherwise of section 84(12) and so the court declined to invalidate the law that means that the law still stands as at today. Section 84(12) still stand as part of the extant laws of the country and that any political party that does not comply with the provision does so at his own peril. I also know that for instance notwithstanding the case filed by the Attorney general even the President complied with the law by asking his appointees to resign and they resigned and those of them that resigned were not even reappointed. So in terms of the implementation of the law the President and the political parties implemented the law so one would not know what was the interest of the Attorney General litigating the provision that had been complied with by even his President and the political party.”

Also reacting to the judgement, the House of Representatives, described the apex court judgement as unequivocally lucid, victory for the advancement of democracy and the nation’s rule of law.

According to the House Spokesman, Hon. Benjamin Kalu, 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.

Kalu said, “We make a law that you believe at the time of making that law was the legislative intention channeled towards blocking an existing gap in the electoral space. Following the agenda of the House to carryout a thorough Electoral reform. You’re confident that such laws made without bias made for the people of Nigeria will stand the test of time, and will stand every test to check its credibility, viability, constitutionality and otherwise. We have not lost sleep from the time this matter went supreme court for interpretation, because we knew that what we put together was in consultation with the public that gave us their mandate. And what we came out with was a reflection of the consultation we had with the Nigerian people. It is all about advancing our democracy.

“Just like the mantra of the House has always been, “Nation Building a Joint Task” the supreme court has restored the confidence of Nigerians in participatory democracy with the integrity of this judgement, delivered without fear or favor, but with Nigeria and Nigerians at the center of it all.

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.

They have added their own bricks to Nation building through the electoral reform and electoral act 2022. So we are glad, and I’m sure Nigerians ought to be glad.”