My Legal Opinion On the Decision of the Governorship Election Petition Tribunal. (Part 2)

Now I ask – is the judiciary truly independent in the true meaning of the word ” independent”???

If one should neglect the two decisons of the Federal High court declaring Sections 140(2) and 141 of the Electoral Act, 2010 uncontitutional, and decide to hold on to both sections as being constitutional, how then can we truly say the Judiciary is really independent.

Justice Gabriel Kolawole in the case earlier stated, went further to say that ” the provision of Section 140( 2) Electoral Act is nothing but a legislative judgement which the National Assembly lacks competence and constitutional powers to make because one of the fundamental constitutional propositions of the Constitution as amended is the operation and observance of the concept of separation of powers and it’s ancillary concept of “check and balances ” amongst the three arms of government and the devolution of powers amongst the three tiers of the Federal Structure”

However I am not ignorant of the fact that these are decisions of the Federal High Court, thus it is still open to overruling by the Court of Appeal or Supreme Court (as the case may be).

But before then, I totally align myself with the learned Justices of the Federal High Court and I’m of the view that an Election Petition Tribunal or Court is free to give it’s judgement ( which could either be ordering a fresh election or declaring the candidate with the second highest vote as winner).

Now let’s take a cursory look at Section 4(8) of the constitution. It provides that;

” Save as otherwise provided by this Constitution, the exercise of the legislative powers of the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of the judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall NOT enact any law, that ousts or purports to oust the jurisdiction of a court of law or judicial tribunal established by law”

Section 1(3) also provides that ” if any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and any other law shall to the extent of the inconsistency be void”

Section 140(2) and section 141 of the ELECTORAL ACT, 2010 has been declared unconstitutional and void by the Federal High Court , as it tends to oust the independence of the Judiciary and the doctrine of Seperation Of Powers.

Thus one should not hold both sections as a basis for faulting the judgement of the Governorship Election Petition Tribunal delivered on Saturday 7th NOVEMBER 2015.

I am however happy that this issue has arisen and I can’t wait for the decision of the appellate court on the issue ( if PDP appeals).

THANK YOU.

Adim Ucheakolam Mitchel, legal practioner, Female .