AN ANALYSIS OF THE EXECUTIVE/LEGISLATIVE DIFFERENCES ON BILL TOAMEND THE ELECTORAL ACT

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  The President, by virtue of Section 58(4) of the Constitution has the power to withhold assent to

  bills presented to him. However, by a community reading of sections 58(4) & (5), if the bill is

  again passed by each House of the National Assembly by two thirds majority after the President

  withholds assent, the the bill shall become law and the Presidential assent shall be dispensed

  with. In other words, the President's withholding of assent may be ineffectual, on the long run, if

  the National Assembly is determined to pass the bill into law by following the constitutionally

  prescribed procedure.

  However, it must be observed that there are contradictory provisions which may suggest that the

  Bill seeking to amend the Electoral Act does not violate the Constitution as it is, and there are

  provisions which suggest that the Bill may amount to a violation of the constitutional.

  First, I address the constitutional provisions which suggest that the Bill may be a violation of the

  Constitution.

  It would appear that by Section 119 of the Constitution, the National Assembly lacks the power

  to legislate on the order or sequence of elections. Section 119 of the Constitution sets out the

  scope of the legislative powers of the National Assembly and the scope does not include

  legislating on the sequence or order of elections. The scope is limited to the National Assembly

  legislating on determination of the person who may challenge an election at the election tribunal

  and the grounds of such challenge; circumstances, manner and conditions upon which a person

  may challenge an election at the election tribunal and on the powers, practice and procedure at

  the election tribunal.

  By a community reading of section 119 of the Constitution and Third Schedule, Part 1,

  Paragraph F. 15(a), of the same Constitution, which empowers INEC to organise, undertake and

  supervise elections to the offices of the President, Vice President, Governor, Deputy Governor

  and those of the National Assembly, it would appear that INEC is constitutionally empowered to

  determine the sequence of elections, particularly considering the import of the word "organise".

  Organizing, in my humble opinion, would include determining the sequence or order of events in

  a process.

  As indicated above, there are other constitutional provisions which suggest that the bill to amend

  the Electoral Act may not be a violation of the Constitution.

  The Constitution, in several sections, as well as Section 25(1) of the Electoral Act 2010, both

  expressly empower INEC to determine the dates for elections, not the sequence or order of

  elections. These constitutional provisions include sections 76(1), 116(1), 132(1) and 178(1)

  dealing with elections to the offices of the membership of the National Assembly, House of

  Assembly of a State, President and Governor, respectively. The provisions referred to above

  provide that the INEC shall have the power to set dates of elections in accordance with the

  provisions of the Constitution as well as the Electoral Act. These provisions therefore suggest

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• that the National Assembly is empowered and expected to legislate on determination of the dates

  of election.

  It would appear that the 2010 amendments of the Constitution have legislatively overruled the

  holdings of the Federal High Court and the Court of Appeal in National Assembly v. President

  (2003) 9 NWLR (Pt. 824) 104 where the Courts held that the National Assembly lacked the

  power to legislate that elections shall hold in one day contrary to the constitutional provisions

  vesting the power to determine election dates in INEC. THIS IS THE JUDICIAL PRINCIPLE

  which the extant Constitution, as amended in 2010, has LEGISLATIVELY NEGATED .

  It would therefore appear that there is, in one breath, lacuna, or, in another breath, contradictions

  and confusion in the Constitution, Considering the above cited provisions on fixing of dates or

  determination of order or sequence of elections.

  On one hand, the Constitution expressly vests the power in INEC to fix election dates. On the

  other hand, the same Constitution provides that the dates shall be in accordance with the

  Electoral Act.

  Within this contradictory context, if the National Assembly provides for order or sequence of

  elections, it cannot be a violation of the Constitution. Indeed, it may be seen a consequential

  amendment to realize the Constitution.

  In the circumstances, only the Courts are in a position to definitively pronounce on the

  constitutionality of the bill to amend the electoral Act. The bill seeks to prescribe the sequence of

  election and not to fix dates of election. From this point of view, it does not violate constitutional

  provisions which empower INEC to fix dates for elections, in accordance with the provisions of

  the Electoral Act.

  But when we assess the Bill from the point of view of Third Schedule, Part 1( F), paragraph 15

  of the same Constitution which empowers INEC to organize elections, generally, the Bill may be

  seen as violating the Constitution.

  We must however observe that what is happening with regard to the differences between the

  legislature and the executive on determination of election dates or sequence of elections is

  competitive struggle to sustain political influence, positions and power of the state actors. In

  other words, what both the legislature and the executive arms of government are demonstrating

  is that they do not care about the wellbeing of ordinary people by dealing with bills that would

  entrench their hold on power. Rather than dealing with bills capable of improving the living

  conditions of ordinary Nigerians, deepening popular participation in the running of the economy

  and society, addressing issues of poverty, unemployment, hunger, collapse of education and

  health care facilities, insecurity, etc, they are concerned only about positions, power and

  influence, in order to advance their economic interests at the expense of ordinary people.

  The media should help portray them for what they are so that the Ruling class does not succeed

  in dictating issues of popular discourse with the aim of diverting attention from issues that

  matter.

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• Ordinary Nigerians must not queue behind either the legislature or the executive on these issues.

  They are elitist and do not serve to promote either the political or the economic interests of

  ordinary people.

  Let the executive and the legislature promote bills that would facilitate the justiciability of

  chapter 2 of the Constitution and do away with provisions that commercialize the political

  processes.

  Femi Aborisade, Esq