Who has the right to determine the order of elections – the Independent National Electoral Commission (INEC) or the National Assembly? The President has vetoed the lawmakers’ amendment to the Electoral Act 2010 which altered the order of the 2019 elections already fixed by INEC. The Accord Party (AP) has also obtained an interim order stopping the lawmakers from taking further steps on the matter. How will it all end, considering that it is less than one year to the next elections? ROBERT EGBE examines the Constitution, the Electoral Act and the implications of re-ordering the elections sequence. IT is about 10 months and 27 days to February 16, 2019, the date fixed for the Presidential and National Assembly elections by the Independent National Electoral Commission (INEC). The Governorship and Houses of Assembly polls will hold on March 2. But it may not be so if the National Assembly has its way. The controversy Last Tuesday, the lawmakers’ attempt to re-order the election sequence failed when President Muhammadu Buhari declined assent to the Electoral Act (Amendment) Bill, 2018. The Presidency held that it is INEC‘s job to organise the elections. The bill, which originated in the House of Representatives, sought to compel INEC to hold the National Assembly polls first and the presidential elections last. Some of the lawmakers threatened to override the President’s veto by invoking the Constitution. However, this alarmed the Accord Party, which last Wednesday through its lawyer, Chief Wole Olanipekun (SAN), obtained an order restraining the lawmakers from doing that. Justice Ahmed Mohammed of the Federal High Court in Abuja ordered the parties to maintain the status quo and adjourned till today for hearing. Piqued, the Senate resolved to report the judge to the Chief Justice of Nigeria, Justice Walter Onnoghen, claiming that the judiciary had interfered in legislative affairs contrary to the doctrine of separation of powers. Last Saturday Senate President, Bukola Saraki, and Speaker of the House of Representatives, Yakubu Dogara, said they are in agreement in responding to President Buhari’s refusal to sign the Electoral Act Amendment Bill. They pledged the lawmakers’ agreement on what is an “appropriate reaction” to the matter. To understand the controversy, it is helpful to consider the past, present and proposed elections sequence. Existing vs proposed order of elections Unlike Section 21 of the Electoral Act 2010 in which elections will hold on two legs – Presidential/National Assembly and Governorship/State Assemblies – the amendment is a three-leg process: National Assembly, Governorship/Assemblies and Presidential. The National Assembly’s proposed amendment marked as Section 25 (1) stipulates that the elections shall be held in the following order: (a) National Assembly elections; (b) State Houses of Assembly and Governorship elections and (c) Presidential election. How it was in the past The 1979 Constitution, which preceded the 1999 Constitution, adopted a presidential system of government as opposed to the parliamentary system previously in use. The first set of elections under this system took place in July and August 1979 with the presidential election coming last. The elections were contested in five stages: the Senate, the House of Representatives, the state Houses of Assembly, the gubernatorial election, and the presidential election. But this changed in 1983 with the presidential election coming first. Lessons from ‘79 and ’83 presidential polls The 1979 and 1983 presidential elections offered examples of how a sudden change of election sequence can affect electoral outcomes. The ‘79 poll featured five major candidates, two of whom – Alhaji Shehu Shagari of the National Party of Nigeria (NPN) and the late Chief Obafemi Awolowo of the Unity Party of Nigeria (UPN) – were the leading contestants. The knowledge that the poll would come last foisted a need for alliances on Shagari and Awolowo. At the polls end, an alliance of ‘progressives’ summoned by Awolowo lost to Shagari’s conservatives in controversial circumstances. However, the progressives’ alliance  intensified between 1979 and 1983. According to a political scientist, Dr Anthony Akinola, key alliance leaders – Awolowo and Dr Nnamdi Azikiwe – could not agree on who would be the presidential candidate in what would be a rematch with Shagari’s NPN in the 1983 poll. Akinola said: “In their assumption that the electoral arrangement for the 1983 elections would follow the pattern of 1979, Chief Awolowo indicated that the trend of the elections would dictate whom all parties would support in the presidential election.” In his article: ‘The politics of election order in Nigeria, Akinola, author of Party Coalitions in Nigeria, said the leadership of the then ruling NPN “would seem to have smelt danger, and might have influenced the re-arrangement of the order of elections. “Unlike in 1979, the presidential election was the first to take place, with Shehu Shagari polling 47.5% of the votes while his main rival, Chief Awolowo polled 31.2 per cent. “The NPN’s unlikely victory in some states of the federation was explained by what was considered to be the bandwagon effect of its victory in the presidential election.” Why Buhari declined assent The President in a March 3 letter to Senate President Bukola Saraki declined assent to the amendment, citing probable infringement of the Constitution. One of the reasons said: “The amendment to the sequence of elections in Section 25 of the principal act, may infringe upon the constitutionally-guaranteed discretion of the Independent National Electoral Commission (INEC) to organise, undertake and supervise elections provided in Section 15(A) of the third statue to the Constitution.  Why the controversy? Why are some lawmakers keen on re-ordering the 2019 elections sequence? Why is the Presidency bent on opposing them? Lagos lawyer Dr Chima Nnaji sai the answer lay in the battle for political self-survival. According to him, holding the presidential polls last would whittle down the incumbent’s re-election chances, should he decide to re-contest. Nnaji said: “I don’t know whether he has fully declared, but it appears there is a strong suspicion that he will run and that if he does, this new order will affect him because the usual bandwagon effect will not be re-enacted. “There are also those in the legislative and executive arm, who believe that they came into reckoning in the last elections on grounds of using Buhari as leverage. “So, some of them, especially in the All Progressives Congress (APC) see that if the President’s election does not come first they will be left to paddle their canoe alone in their own election and they may not have the clout to sail through. “On the other hand, some legislators, even in the APC, feel that if this order – as it is now – is maintained without this amendment sailing through, that because of the way they had carried on, opposing some of the Executive bills or not towing the line of the Executive, so to speak, they may not get endorsement to return to the legislative house.” INEC’s power over elections The primary source of INEC’s power over elections is found in Section 78 of the 1999 Constitution and Section 15 of the Constitution’s Third Schedule. Section 78 states: “The registration of voters and the conduct of elections shall be subject to the direction and supervision of Independent National Electoral Commission.” The Third Schedule in Section 15 (a)&(i) states: “The Commission shall have power to – (a) Organise, undertake and supervise all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a state, and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation; (i) Carry out such other functions as may be conferred upon it by an Act of the National Assembly. Timing vs sequence of elections Can the National Assembly amend the Electoral Act to re-order the sequence of elections? The Constitution clearly grants INEC the power to direct, supervise and organise elections. Does this power include setting election sequence? The Presidency and other protagonists  of  ‘no amendment’ believe that INEC’s power  extends to setting election dates and times as well as elections sequence. The lawmakers, on the other hand, insist that the time of elections is not the same thing as the sequence of elections. According to them, INEC’s constitutional power is limited to timing. Lawyers disagree Whose view is correct? Legal experts differed. Nnaji found merit in the lawmakers’ view. He said: “I believe that even grammatically, time is different from sequence. The order of birth of an individual is different from the date he was born. Somebody can be the fifth in a family of nine, but they have different birthdays. “There is a bifurcation of these two, whereby the sequence could be altered by the National Assembly because under Section 4 of the Constitution, the National Assembly has the power to legislate. Somebody, who cannot kill you, cannot save you. “The constitutional provision is a kind of guideline, framework and the Electoral Act, which was made subject to the authority of the National Assembly, provides the flesh for the INEC to be fully empowered. “So, this power INEC has is the power to supervise, within the framework provided by the National Assembly as the body, only body authorised to make laws for the order and good governance of the country.” But rights activist Femi Falana SAN disagreed, describing the National Assembly’s attempt as illegal for being in breach of the Constitution and contrary to a Supreme Court’s pronouncement. He urged INEC to ignore the proposed law. Falana said: “As far as the Constitution is concerned, the power of INEC to organise, undertake and supervise 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. “It is the height of legislative absurdity to say that the power donated to 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.’” Falana went on: “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 INEC to appoint dates for holding the general elections 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.” Judicial ‘interference’ in separation of powers According to the Senate, it was wrong for Justice Mohammed to grant an order stopping the National Assembly from taking further action on the Electoral Act Amendment Bill. Last Thursday, Minority Leader Senator Godswill Akpabio moved a motion to state that the judgment amounted to an abuse of the principle of separation of powers. Akpabio said: “I have perused the Constitution and I cannot see anywhere that the court has the power to stop the proceedings of the Senate. “If this is allowed, it therefore, means that  in future the court can stop the National Assembly from appropriating and the country will have no budget for that year. “Separation of powers is a core of democracy so there is need for the Chief Justice to caution legal officers on issuing such orders geared towards interfering with other arms of government.’’ Plot to override President’s veto There were strong indications on Saturday that the lawmakers had made up their minds to override Buhari’s veto. The Nation learnt that after accepting the legal advice which dismissed President Buhari’s basis for withholding assent to the bill, Saraki and Dogara are poised to mobilise the lawmakers to override the President’s veto. “The leadership of the two chambers are determined to push forward to actualise the amendment not minding overtures from certain quarters,” a source informed The Nation. Arguments for, against the lawmakers’ position Elderstatesman Prof Ben Nwabueze (SAN) faulted the court’s order on the ground that the bill is yet to become a law. Nwabueze said: “Nigeria is a country where strange things happen, where a court of law, whose jurisdiction is limited to the application of law in a dispute before it, can act on the basis of a bill that has not yet become law. “In other words, rendering an advisory opinion, which a court of law under our system has no authority to give: that the eventual enactment of the bill into law will be unconstitutional, null, and void. “This, indeed, is an amazing decision to come from a Federal High Court in this country. “…a bill is not law; as such, it cannot be an unlawful exercise of the power of law-making in as much as it may be abandoned or amended before the processes of its transition into law are completed.” But, according to Falana, Olanipekun, who applied for the order and Justice Mohammed who granted it acted lawfully. Falana reminded the Senate of the Supreme Court’s interlocutory order of May 7, 2015, which restrained the National Assembly from overriding the veto of former President Goodluck Jonathan on the 2015 amendment to the 1999 Constitution. Chairman, Presidential Advisory Committee Against Corruption (PACAC), Prof. Itse Sagay (SAN), described the Justice Mohammed’s order as being consistent with the legal principle of Quia timet, meaning “because he fears or apprehends.” A bill in quia timet is filed by a person fearing some injury to his right or property, real or personal, from the negligence, fault or fraud of another, and not because an injury has already occurred. All eyes on the judiciary How will the controversy be resolved? For now, a judicial solution seems to be the next step. All parties will begin to have an idea of where they stand when the Federal High Court begins the hearing of the suit today.]]>

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