Electoral Act: NASS Seeks Legal Advice, May Challenge Court Ruling

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The National Assembly is shocked by Friday’s judgment from the Federal High Court, Umuahia, voiding Section 84 (12) of the Electoral Act and ordering its deletion forthwith, The Nation gathered yesterday.

Consequently, the legislative arm has started assembling a team of legal giants to study the judgment and advise it on the next line of action.

No less shocked by the court’s pronouncement are several senior lawyers who, yesterday, questioned the premise on which the judgment was based and the circumstances that birthed it.

But that is not the only issue with the act. The Independent National Electoral Commission (INEC) yesterday turned in its own assessment of the law, saying that some of its provisions are inimical to the electoral process.

The commission said it would seek practice direction on how to deal with the identified problems.

Investigation revealed that federal lawmakers were shocked that the Federal High Court voided and repealed Section 84(12) of the Act.

Their grouses include the following:

  • The ruling amounts to the erosion of the independence of the Legislature.
  • Neither the two chambers of the National Assembly nor the Independent National Electoral Commission (INEC) was joined as a party to the application.
  • No court can delete or repeal an Act but could void it.

*Since the ruling is still justiceable at the Court of Appeal and the Supreme Court, it is hasty for the Federal Government to gazette it.

A principal officer of the National Assembly, who spoke on the issue with our correspondent, said: “We were shocked by the decision of the court in a case we were not a party to. The National Assembly is already seeking legal advice on the next steps.

“Neither the two chambers of the National Assembly nor the Independent National Electoral Commission (INEC) was joined in a fundamental suit like this.

“The decision of the Federal High Court will no doubt undermine the legislative powers of the National Assembly. It may also set a bad precedent.

“More importantly, no court has the power to repeal an Act of the National Assembly.”

Responding to a question, the principal officer added: “The lawmakers have the right to seek redress in the Court of Appeal and the Supreme Court.”

Judgment a great error, says Falana

Senior Advocate of Nigeria and human rights advocate, Femi Falana, called the court order that Section 84(12) of the amended Electoral Act be deleted as a great error.

The contentious section stipulates that “No political appointee at any level shall be a voting delegate or be voted for at the convention or congress of any political party for the purpose of the nomination of candidates for any election.”

Justice Evelyn Anyadike, in her ruling, said the section ought to be struck down as it cannot stand when it is in violation of the clear provisions of the Constitution.

The said Sections 66(1)(f), 107(1)(f), 137(1)(f) and 182(1)(f) of the 1999 Constitution already stipulate that people employed in the public service of the federal or state government seeking to contest elections should resign at least 30 days to the date of the election.

But Falana, in a statement yesterday, said the judge “fell into a great error.”

His words: “Sections 66 (1) (f), 107(1) (f), 137 (1) (f) and 182 (1) (f) of the Constitution relied upon by his lordship require persons employed in the public service of either the Federal Government or State Governments.

“Specifically, each of the aforesaid sections provides that ‘No person shall be qualified for election into the Senate or House of Reps if:

(f) he is a person employed in the public service of the Federation or of any State and has not resigned, withdrawn or retired from such employment 30 days before the date of election.’

“By virtue of section 318 of the Constitution, political appointees are not included in the list of persons employed in the public service. To that extent, section 84 (12) of the Electoral Act was annulled on a very faulty ground.

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“No doubt, the Judge would have dismissed the case if his attention had been drawn to the cases of DADA v. ADEYEYE (2005) 6 NWLR (Pt. 920) 1 at 19 ASOGWA v. CHUKWU (2003) 4 NWLR (Pt. 811) 540 OJONYE V. ONU & ORS (2018) LPELR-44223) where the appellate Courts have held that political appointees or political office holders are not public servants as provided for under the Constitution.”

NASS should not leave it unchallenged —Ukweni

Another senior advocate, Mba Ukweni, said the National Assembly should challenge the judgment at the Court of Appeal.

He said: “If one wants to contest an election, you resign from your position. For instance, if somebody is working in INEC, you cannot run in an election after sometime. The law has a reason for that.

“An elective office is different from appointment. It has been there and it doesn’t violate any person’s rights.

“Rights are not absolute. I will want the National Assembly, if they are made a party to it, to challenge the decision.

“If I were a party in the case, I would challenge it in the higher court to have a second look at that provision.

“I have read that provision and it doesn’t appear to be in conflict with the constitution. Even the fundamental rights provided in the constitution are not absolute.

“If anyone wants to contest in an election and is holding a certain public office, he should resign.”

Ajulo: It’s a booby trap for APC

Constitutional and human rights lawyer, Dr. Kayode Ajulo, said the judgment could not stand in the face of the law.

He also predicted a higher risk for political office holders who may want to take advantage of it.

He raised three observations thus:

*The Judgment of the Court is per incuriam

*Political appointees are not public servants

*The National Assembly is a necessary party and has a right to set same aside on Appeal

*Compliance with the judgment of the trial court is a booby trap for the ruling APC.

He said: “While the position of our laws is clear to the effect that judgments of courts are valid until set aside on appeal no matter how erroneous they might be, however, considering the ratio decidendi of the decision of the court viz-a-viz the expediency and imminent consequence of the decision of the court on our political administration and party politics, it is therefore imperative to pensively dissect the judgment of the court in the light of the spirit of the Constitution and position of the Apex Court.

“Let us get a point clear: it is undoubted that Courts of superior record by virtue of Section 6 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), have the power to declare an Act of the National Assembly unconstitutional, null and void to the extent of its inconsistency.

“More so, plethora of authorities have established the principle that where a provision of an enactment by the legislature conflicts with the express provision of the Constitution, the said extant law shall be declared null and void.

“That is the essence of Section 1(3) of the 1999 constitution as Amended. It provides that ‘If any other law is inconsistent with the provision of this constitution, this constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.’

“It is however instructive to note that in cases where legislation is contested for being in conflict with provisions of the Constitution, the courts have only one duty: ‘to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former… See the cases of  U.S. v. Butler et al (1936) 297 U.S 1 (and Marwa & Ors v. Nyako & Ors (1980) LPELR-2936 (SC).

“In the case under review, the learned trial judge noted that the provision of Section 84 (12) of the Electoral Act is inconsistent with the provision of Sections 66 (1) (f), 107(1) (f), 137 (1) (f) and 182 (1) (f) of the Constitution.

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“Suffice to state that a pensive juxtaposing of the Sections of the Constitution relied upon by the learned trial judge require persons employed in the public service of either the federal government or state governments.

“What is more, the provision of Section 318 of the Constitution as to who qualifies as a public servant is unambiguous. Similarly, decisions of Court abound on this clear position. See Dada V. Adeyeye (2005) 6 NWLR (Pt. 920), Ojonye V. Onu & ORS (2018) LPELR-44223) where the appellate Courts have held that political appointees or political office holders are not public servants as provided for under the Constitution.

“It therefore implies that the decision of court, with respect, is per incuriam and the ratio of court cannot find coverage under the Sections of the Constitution cited by the learned trial judge to arrive at the decision.

“Based on the doctrine of judicial precedents, it is quite apposite that the Appellate Court will set aside the decision of the trial court.

“For those who have mind to think, the perdurable questions to ask include:

*Why was the suit filed in far away Umuahia, Abia State?

*Why were the National Assembly and Independent National Electoral Commission not joined as parties to the suit?

“To answer these thought-provoking questions, attention must be readily drawn to the fact that the National Assembly who is the authority empowered by Section 4 and 228 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Independent National Electoral Commission who is empowered to regulate the conduct of election in Nigeria by virtue of Section 153 of the Constitution respectively ought to have been joined by the Plaintiff as necessary parties to the action.

“While it is not the duty of a judge to force on a Plaintiff the party to be sued, however judicial authorities abound to the effect that where a judge considers that a necessary party has not been joined to an action, it can suo motu make an order for the joinder of such necessary party.”

Ajulo said the swift reaction of the Federal Government and the office of the Attorney General of the Federation to the court ruling “leaves too much to be desired of the ruling All Progressives Congress.”

Continuing, he said: “If the All Progressives Congress should rely on the ephemeral judgment of the Court and proceed to permit Political Appointees to vote and contest at its primaries and conventions, same is a disaster going somewhere to happen.

“What readily comes to mind is the decision of the Supreme Court in Zamfara State where the Apex Court held that there were no validly elected candidates in the various elective positions in the state from the APC.

“In lending my two cents, it is not a triumph neither is it time for drunk fanfare for the All Progressives Congress.

“The leadership of the party must be very circumspect in preventing a repeat of what happened in Zamfara State.

Judgment is in order —Akintola

On his part, Chief Niyi Akintola (SAN) said the judgment was in order.

He said: “The constitution guarantees us the right to vote and be voted for. That aspect of Section 84 which they (NASS) ought to have removed was what the President pointed out.

“They should have known that the section that says that a political appointee should not contest should have been retained as against to vote and be voted for.

“There are millions of Nigerians who are already disenfranchised by the constitution which says that you must have certain qualifications before you can become one thing or the other.

“Some Nigerians are already disenfranchised by that provision. They should have limited it to that level. But to say that somebody cannot vote is where they shot themselves in the foot.

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“That is what is wrong with Section 84 that was struck down by the Abia division of Federal High Court, and I am in full agreement with that judgment.  You cannot deprive a Nigerian the right to vote.”

Asked whether the National Assembly could challenge the decision, Chief Akintola said: “Let them go ahead. I don’t think there would be any changes. It is very clear. You have the right to vote.

“Why should I say you should not vote because you are a political appointee?  No act of the National Assembly should be in conflict with the position of the constitution. Section 84 of the Act is in conflict with the constitution. Every other law should come under the constitution.

“There is no absolute right for anybody. No society in the world grants absolute right to anybody.

“The right to vote is quite different from the right to contest. That is where they shot themselves in the foot. The right to vote is constitutionally guaranteed. The right to contest is a different kettle of fish.

“If you want to contest, you must resign 30 days before. It is a constitutional provision and no act of the National Assembly can override that.

“If they want a change, they should go and first of all amend that section of the constitution before they can enact the law. And not when that provision is still in force.

“They maintain their rights to vote. People are missing the two. There is no absolute right anywhere, but the right to vote is a fundamental right.“

INEC raises poser over new law

For the Independent National Electoral Commission (INEC), it is some other provisions of the Electoral Act that are receiving its attention for now.

It said yesterday that the issues are capable of hampering the 2023 general elections if they are not dealt with immediately.

INEC’s National Commissioner and Chairman Information and Voter Education, Festus Okoye, cited the removal of pre-election matters from the High Courts and the High Court of the FCT and domiciling same with the Federal High Court.

He said: “Now we need to get back to the Chief Judge of the Federal High Court relating to having a practice direction that makes it possible for issues and cases to be determined where the cause of action arose so that we do not have the same situation where a political party will conduct its party primary in Anambra and then issues around the party primaries will be determined by a Federal High Court in Borno State.

“We need to have a practice direction that enables some level of order and sanity to be embedded in the operations of the several Courts as we continue towards this contentious period in our electoral process.

“The Electoral Act has just come into force and there are many issues that have been embedded in the Act. We also need to begin a robust training of our staff in relation to some of the issues embedded in the new Act.”

He added:”One fundamental issue that bothers the Commission is since the new Electoral Act has changed the trajectory of collation and transmission of election results, we have noticed that violence has left the collation centres back to the polling units and the Commission is really concerned about that.

“We are going to have a high level of discussion on how to protect our Staff, especially at the level of the polling units, because the political parties know that results are now transmitted directly from the polling units to the first level of collation, and that those transmitted results are going to be used for the purpose of collation, and that if there are discrepancies between the electronically transmitted and manually transmitted results, that the BVAS will be called into question in terms of interrogating it to know how many people were accredited.”

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