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 on elections 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. These constitutional provisions
[in sections 76(1), 116(1), 132(1) and
178(1)] provide that the INEC shall have the power to set dates of elections “in accordance with the Electoral Act”. These
provisions therefore suggest that the National Assembly is empowered and
expected to legislate on determination of the sequence of elections within
which the INEC shall determine the dates.
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 and at
the backdrop of section 25(1) and sections 76(1), 116(1), 132(1) and 178(1) of the Constitution, which empower
INEC to fix dates for elections, in accordance with the provisions of the
Electoral Act, it may be said that the Bill does not violate constitutional
provisions.
But when we assess the Bill from
the point of view of Section 25(1) of
the Electoral Act 2010 and the Third Schedule, Part 1( F), paragraph 15 of the
same Constitution which empowers INEC to determine dates of elections
and organize elections, respectively, 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.
14th March 2018.
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