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 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.
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.
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