23022018 - Confusion over Yobe girls; angry parents stone gov

Vanguard, FRIDAY, FEBRUARY 23, 2018—43
National Assembly lacks power
to fix election dates
By Femi Falana, SAN
SINCE the return to
democratic rule in 1999,
the Independent National
Electoral Commission (INEC)
has conducted the general
elections on a two-tier or threetier
basis. Even though the
national assembly had
attempted in the past to use
the Electoral Act to alter the
sequence of elections fixed by
the INEC it did not succeed.
In spite of the ongoing
controversy surrounding the
sequence of elections our
recent experience as a nation
has shown that there is nothing
sacrosanct about it. In 1999 and
2007 the presidential election
came up last while it came up
first in 2015. In influencing
the order of elections in 2015
the ruling party had thought
that holding the presidential
election first would have
bandwagon effect on the
outcome of the other elections.
But the result was a disaster
for the ruling party.
It has equally been
confirmed that when elections
into the legislative houses
were held before other election
in the past majority of sitting
legislators lost their seats. So,
there is no indication that
President Muhammadu
Buhari stands to benefit
electorally from the decision of
the INEC to retain the 2015
sequence of elections. But
notwithstanding the reactions
of the presidency and the
national assembly to the
sequence of elections
announced by the INEC it is
pertinent to review the
relevant provisions of the
Constitution, the Electoral Act
and judicial authorities on the
vexed issue.
Needless controversy
In preparations for the 2019
general elections the INEC
recently released a timetable
for party primaries and the
elections into the various
offices in exercise of its powers
under Sections 76, 116, 132
and 178 as well as paragraph
15 of Part 1 of the Third
Schedule made pursuant to
section 153 (1) of the
Constitution. Under the
arrangement the presidential
and national assembly
elections will be held on
February 16, 2019 while the
governorship and house of
assembly elections will take
place on March 2, 2019. But
in the Electoral Bill 2018
recently passed by the national
assembly the sequence of the
general elections has been
altered. The sequence
proposed by the new
amendment is A. National
Assembly Election, B.
Governorship and State
Assembly Elections and C.
Presidential Election.
No doubt, the matter has
generated a needless
controversy to the extent that
little or no attention is paid to
the other provisions of the
Electoral Bill which have the
capacity to promote internal
democracy and enhance the
credibility of the electoral
process. Perhaps not aware of
the state of the law the INEC
has announced its intention to
approach the Supreme Court
to test the constitutional
validity of the Electoral Bill
2018 if it is eventually signed
into law by the President.
Since there are indications
that the President may
withhold his assent in the
circumstance, the national
assembly has threatened to
override his veto.
Having watched the trend of
the debate it is regrettable to
note that the parties involved
in the dispute have not
studied the decision of the
Court of Appeal in the case of
National Assembly v.
President (2003) 9 NWLR (PT
824) 104 at 143-144. In that
case, President Obasanjo had
refused to assent to the
Electoral Bill 2002 which had
been passed by both
Chambers of the National
Assembly and transmitted to
him June 24, 2002.
Subsequently, by a motion of
veto-override the national
assembly passed the bill into
law. In an originating
The interference
in the exercise of the
powers of the INEC
to appoint dates for
holding the general
election in Nigeria
is illegal as the
provision of the
Electoral Bill, 2018
is inconsistent with
S e c t i o n s
76,116,132 and 178
of the Constitution
summons filed at the Federal
High Court the INEC
challenged the validity of the
passage of the Bill into law
and the constitutionality of
Section 15 of the Act which
had provided that general
elections shall be held in one
day.
The trial court held that the
Bill was properly passed into
law but that Section 15 thereof
was inconsistent with Sections
76, 116, 132 and 178 of the
Constitution. Dissatisfied with
the annulment of Section 15 of
the Electoral Act, the national
assembly filed an appeal at
the Court of Appeal. On his
own part, the Attorney-General
of the Federation filed a cross
appeal to challenge the
passage of the Bill into law. In
its judgment the Court of
Appeal held that the manner
of passing the bill into was
unconstitutional but declined
to set it aside on ground of
public policy as the 2003
general elections were being
conducted under the law.
However, the Court of Appeal
affirmed the decision of the
Federal High Court on the
illegality of Section 15 of the
Electoral Act.
In his contribution to the
judgment of the Court,
Oduyemi J.C.A (as he then
was) stated that “in so far as
Section 15 of the Electoral Act,
2002 seeks to fetter that
discretion and limit the 3rd
Defendant to only one day in
the year for all elections to the
offices concerned, that
provision of the Act is
inconsistent with the
provisions of the Constitution
above referred to and is to that
extent a nullity. Section 1(3)
of the Constitution… All in all,
I agree with the reasoning in
the judgment of the lower
court and with the conclusion
in the judgment that Section
15 of the Electoral Act, 2002 is
inconsistent with the specific
provisions of the Constitution
of the Federal Republic of
Nigeria, 1999 in Section
132(1), 76(1), 178(1), 116(1),
78, 118 and Item 15(a) of the
3rd Schedule: that it infringes
upon the absolute discretion
vested by the Constitution on
the 3rd Respondent with
regard to the fixing of dates
for election into the various
offices concerned.”
Alteration of the
Constitution
However, the national
assembly took advantage of the
2010 Alteration of the
Constitution to attempt to
overrule the judgment of the
Court of Appeal in the case of the
National Assembly v. The
President (supra). Thus, in the
first alteration made to the
Constitution, the national
assembly amended sections
132(1), 76(1), 178(1), 116(1), 118
and 178 of the Constitution by
adding the phrase “in
accordance with the Electoral
Act”. Although the power of the
INEC to “organize, undertake
and supervise” the general
elections conferred on it by
paragraph 15 of part 1 of the third
schedule made pursuant to
section 153 of the Constitution
was left intact, the national
assembly members erroneously
believed that they had conferred
on themselves the power to fix
the dates for general elections in
Nigeria. Hence, in the 2018
Electoral Bill, the national
assembly is alleged to have
tampered with the discretion of
the INEC to fix the dates for the
2019 general elections.
Apart from the illegality of
subjecting the provisions of
the Constitution to the
Electoral Act, the Alteration of
the Constitution did not confer
on the national assembly the
power of fix dates for holding
Femi Falana.
the general election in
Nigeria. To that extent, the
national assembly cannot use
the Electoral Act to usurp the
powers exclusively conferred
on the INEC to appoint dates
for holding the general
elections in the country.
Indeed, the Supreme Court
has had cause, after the first
2010 Alteration of the
Constitution, to confirm the
discretionary power of the
INEC to fix the dates for
holding the general elections.
In PDP V. SYLVA (2012) 13
NWLR (PT 1316) 85 the
respondent challenged the
decision of the INEC to cancel
and reschedule the 2012
governorship election in
Bayelsa State. In dismissing
the contention the Supreme
Court (per Rhodes Vivour
JSC) held that ‘’INEC has the
sole responsibility to fix dates
for election and to my mind if
INEC fixes a date for elections
and for whatever reason, be it
logistic, I do not think anyone
has a cause of action against
INEC for canceling an election
(not held) and rescheduling
elections for another day’’.
Similarly, in NDP V INEC
(2013) 20 WRN 1 at 45 the
Supreme Court (per Ariwoola
J.S.C.) held that “It is not in
doubt that the Independent
National Electoral Commission
(INEC) that is, the
respondent, has the sole
responsibility to decide when
elections are to hold. See
Peoples Democratic Party v
Timipre Sylva & Ors (2012) 13
NWLR (Pt 1316) 85 at 122. The
respondent also reserves the
prerogative to decide what
Timetable of Activities to
publish for a General Election.”
Furthermore, in Hon. James
Abiodun Faleke v INEC (2016)
50 WRN 1 the Supreme Court
reiterated the view that by
virtue of paragraph 15 of Part
1 of the Third Schedule made
pursuant to section 153 (1) (f)
and (i) of the Constitution, the
Independent National
Electoral Commission has
power to organize, undertake
and supervise all elections to
the offices of the President, Vice
President, the Governor and
Deputy Governor of a State and
the membership of the Senate,
the House of Representatives
and the House of Assembly of
each state of the Federation.
No doubt, the national
assembly would have achieved
its objective if it had
incorporated the sequence of
the general elections in the
Constitution. But by providing
that the INEC shall fix election
dates “in accordance with the
Electoral Act” the interference
in the exercise of the
discretionary power of INEC’s
constitutional power to fix the
dates for the elections cannot
be justified in law. As far as
the Constitution is concerned,
the power of the INEC to
organize, undertake and
supervise the elections which
has been interpreted to include
the power to fix the dates for
the general elections or
determine the sequence of the
elections has not been altered
in any material particular.
It is the height of legislative
absurdity to say that the power
donated to the INEC by the
Constitution shall be exercised
in accordance with the
provision of an interior
legislation. In Attorney-
General, Abia State v.
Attorney-General of the
Federation (2002) 1 WRN 1 at
45 Kutigi CJN (as he then
was) held that “where the
provision in the Act is within
the legislative powers of the
National Assembly but the
Constitution is found to have
already made the same or
similar provision, then the
new provision will be regarded
as invalid for duplication and/
or inconsistency and therefore
inoperative. The same fate will
befall any provision of the Act
which seeks to enlarge, curtail
or alter any existing provision
of the Constitution. The
provision or provisions will be
treated as unconstitutional
and therefore null and void.”
From the foregoing, it is
submitted that the interference
in the exercise of the powers of
the INEC to appoint dates for
holding the general election in
Nigeria is illegal as the provision
of the Electoral Bill, 2018 is
inconsistent with Sections
76,116,132 and 178 of the
Constitution. To the extent of
such inconsistency, the provision
of the Electoral Bill is illegal, null
and void as stipulated by section
1 (3) of the Constitution. In other
words, since the INEC has been
empowered to organize,
undertake and supervise all
elections the National Assembly
cannot rely on the provision of
the Electoral Act to usurp the
powers of the INEC to fix the
dates for the elections. In view
of the settled position of the law
the INEC should not waste
public funds by rushing to the
Supreme Court to contest its own
constitutional duty to organize,
undertake and supervise the
2019 general elections.