The recent move by Nigeria’s National Assembly (NASS) to alter the sequence of elections has stirred a major legal controversy in the country.
NASS passed a 2018 Electoral Amendment Bill which has received stiff opposition from the country’s electoral body, the Independent National Electoral Commission (INEC) and the executive arm of the government.
President Muhammadu Buhari vetoed the bill citing unconstitutional provisions.
The INEC insists that for the law to be binding, the amendment must be legitimate. The electoral body also refers to an ECOWAS protocol that discouraged amendment of the electoral act less than 6 months before an election.
The bill which was initiated by the House of Representatives seeks to amend Section 25 of the Electoral Act 2010 with a new provision; “Elections into the office 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 Houses of Assembly of each state of the federation shall be in the following order: National assembly elections; state Houses of Assembly election and governorship elections; and presidential election. The dates for these elections shall be as appointed by the Independent National Electoral Commission.
The House presented the bill to the Senate, which immediately constituted a six-man committee. The committee subsequently adopted the version of the bill proposed by the House before sending it off to the President for assent.
Prior to this, INEC released a timetable for the 2019 General Elections for the next 36 years. The timetable announced by INEC upheld the existing order, which would see the Presidential, and NASS elections (February 16, 2019) hold first. This would be followed by the Governorship and House of Assembly elections (March 2, 2019).
President Buhari and the Electoral Bill 2018.
Buhari vetoed the bill and gave reasons for his decision in a memo to the leadership of the National Assembly. Buhari argued that: “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 organize, undertake and supervise elections provided in Section 15(A) of the third statue to the Constitution; “The amendment to Section 138 of the principal act to delete two crucial grounds upon which an election may be challenged by candidates, unduly limits the rights of candidates in elections to a free and fair electoral review process.”
However, a National Assembly report made available to the Senate President, Bukola Saraki has since dismissed the President’s assertions. This has heightened speculations that NASS would override the President’s veto.
With a recent court order standing in the way of NASS, it is yet to be seen how they would be able to advance the bill.
What are the legal experts saying?
We sought the opinion on lawyers as the public opinion is split on the controversy. While some believe that the constitutional right of INEC is being infringed upon, others are of the opinion that NASS has the sovereign powers to make laws.
Anthony Ehilebo a legal practitioner in Abuja said “It will be interesting to see how the Supreme Court handles this, the National Assembly definitely has the power with the 2010 Constitutional Amendment” the amendment empowers the National Assembly for the ordering of the sequence of election.
Okolie Ifeanyi Gerald partner at PIO Solicitors is of the opinion that the constitution made provisions for separation of powers. Citing section (5) of the 1999 constitution, he argues that it empowers the National Assembly to carry out functions as such. What he thinks would be the decision of the Supreme Court when the case comes before it? Ifeanyi said, “I won’t pre-empt the court, but I believe that they would stick to the separation of power. “ He added that “If the National Assembly are desirous of the 2018 Electoral bill, they should override the veto.”
Ilemona Onoja a legal practitioner in Abuja said “S. 4 (2) CFRN the National Assembly has the authority to make laws for all the issues listed in the first part of the second schedule of the constitution. That is the exclusive legislative list. Item 22 on that list are elections into the office of the President, Vice President, Governor and Deputy Governor. And all other elections excluding elections into Local government councils. On the basis of that alone it is apparent that national assembly has the authority to legislate on the scheduling of elections as well as all other issues surrounding elections.”
Tony Atambi a legal practitioner in Abuja disagrees with the others, saying that the President made a right call in refusing to assent to the amendment bill. He said that INEC derived its powers from the constitution. “Only a constitutional amendment can divest this power from INEC or enable the National Assembly share the power to determine when elections are conducted with INEC.”
He argued that the 3rd Schedule to the 1999 Constitution defines the scope of the powers conferred on INEC. He cited Section 15 (a) of the Schedule which states that “INEC shall organize, undertake and supervise all elections to the office 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.” He also referred to Section 153 of the Electoral Act 2010, which reads, “the Commission may, subject to the provisions of this Act, issue regulations, guidelines, or manuals for the purpose of giving effect to the provisions of the Act and for its administration thereof.”
According to Atambi, “A compound reading of these provisions will reveal that the INEC is the body empowered by law to organize and supervise the conduct of elections. This power is donated to the body exclusively by the Constitution, which establishes it. Thus, the INEC, flowing from the above, is the body that can set the dates for which various elections can be conducted and it doesn’t share that power with any other body, not even the National Assembly.
To hold otherwise would be to create a dangerous precedent where the National Assembly will by stealth usurp the powers of the Electoral body which is supposed to be independent. Because members of the National Assembly are elected officials, it will open up the floodgates for more amendments that will favour the National Assembly and strip the INEC of its independence. The National Assembly can simply not exercise the powers to determine when elections are conducted without an amendment to the constitution. It is not the law.”
