The Senate has been advised to ignore the reasons given by the President Muhammadu Buhari for not signing the Electoral Act 2010 Amendment Bill passed by the National Assembly.
It was gathered that based on the advice from the Senate’s Legal Department, the upper chamber of the National Assembly would proceed with the process to override the President’s veto on the bill, which seeks to reorder the sequence of elections.
A new Section 25 in the Electoral Act, which states that the sequence of the elections will start with National Assembly, to be followed by governorship and state Houses of Assembly, while presidential poll will come last.
Recall that Buhari had written to both chambers of the National Assembly on his decision to withhold assent to the amendment bill.
In the letter dated March 8, 2018, the President had said the amendments made by the lawmakers were in conflict with the existing laws.
The Senate had resolved on Tuesday when the letter was read to members to seek legal advice from the Legal Department.
A copy of the document containing the advice given to the Senate was sighted by one of our correspondents on Thursday.
The department listed what it considers to be the holes in all the three arguments raised by Buhari.
The lawyers said while the President claimed that the amendment introducing a specific sequence for elections under Section 25 of the Principal Act 2010 infringed on the discretion of INEC to “organise, undertake and supervise elections,” the section cited by Buhari had been amended.
They argued that the correct legal position was contained in the Constitution of the Federal Republic of Nigeria 1999 First Alteration Act 2010, Act No. 1, “specifically Section 5 provides that ‘Section 76 of the Principal Act is altered thus…(a) Subsection (1) Line 2, by inserting immediately after the word ‘commission’ the words ‘in accordance with the Electoral Act.’”
The department stated, “From the above amendment, it is crystal clear that the power to regulate the principal elements of all federal electoral process were expressly, by the above amendment, removed from the Independent National Electoral Commission and vested in the National Assembly, which has the power to pass laws for ‘peace, order and good government’ of the Federal Republic of Nigeria or any part thereof.”
The department further said the President argued that the sequencing of the elections under Section 25 infringed on the discretion of INEC, “without expressly pointing out in what specific aspects or ways and manner cannot be a basis for legal or constitutional argument or decision.”
The lawyers added, “With due respect, the opinion expressed is too general to establish a basis for the exercise of a legal or constitutional power, more so because ‘discretion’ is a principle governed by the rules of Administrative Law and not that of Constitutional Law, which the President claimed to have anchored his arguments.”
They further argued that the term, ‘organize, undertake and supervise,’ might have conferred a wide discretion on INEC in matters of logistics in the preparation and conduct of elections, stating that the issue of discretion only comes to fore in the actual details of the preparation, organizing and conducting elections.
“It is respectfully submitted that the sequencing of the elections in a bill as to which was scheduled as first or last in the conduct does not in any way hamper or affect the discretion and capacity of INEC to organise, undertake and conduct these elections into various constitutional offices provided,” the department stated.
The lawyers also said the new Subsection 3 introduced into Section 138 of the Electoral Act, which the President argued repealed two crucial grounds upon which elections could be challenged, “is not entirely correct and the view could be misplaced.”
Citing reasons for the displacement of Buhari’s argument, the department stated that the new subsection actually clarified the ambiguity contained in Subsection 1 of the Principal Act and reinforces the constitutional standards specified in Sections 65, 106, 131 and 177 of the 1999 Constitution.
“In addition, it further provides that no person shall be qualified to contest elections in breach of any of the Sections 66, 107, 137 or 182 of the Constitution of the Federal Republic of Nigeria as amended,” the lawyers said.
The department further stated that the amendment to Section 152 (3) to (5), which collectively imposed an obligation on the State Independent Electoral Commissions to apply the standard of ‘free, fair and credible elections in the conduct of local government elections is within the competence of the National Assembly’ to make laws in respect of the procedure regulating elections into the local government councils.
This, they said, is in accordance with Item 11 of the Concurrent Legislative List of the 1999 Constitution.
The lawyers said, “It is therefore not entirely correct, with all due respect for the Mr. President, to argue that the amendment may raise constitutional issues over the competence of the National Assembly to legislate on local government elections. The Supreme Court of Nigeria has decided on this issue in the famous case of Attorney General of Abia State & Others vs Attorney General of the Federation & Others.”
Meanwhile, the Senate at the plenary on Thursday resolved to write the Chief Justice of the Federation, Justice Walter Onnoghen, to express their reservations on the judgment by a Federal High Court stopping the National Assembly from overriding Buhari on the bill.
The 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 read in the newspapers about an injunction granted by a Federal High Court against the Senate, restraining the Senate from moving further on the issue of Electoral Act Amendment Bill, which was just recently vetoed by Mr. President.
“The issue really is not on the bill itself, the issue has to do with due process and parliamentary functions. I am worried about separation of powers as enshrined in our constitution. The issue is that really, can a court rule, grant an injunction – ex parte or otherwise – stopping the parliament from carrying out its constitutional duties? I perused the Nigerian constitution; I looked through and I did not see it there.
“In my view, I don’t think it is right for the court to interfere in the affairs of the parliament particularly when we are in the process of either making a legislation. We cannot be stopped by a court’s injunction.”
The Minority Leader also pointed out that the principle of separation of powers also made it illegal for the legislature to interfere or legislative on any matter already before a court.
Akpabio warned that if the issue was not addressed, anybody or group could approach a court to stop the National Assembly from working on an appropriation bill, making the country to have no budget to run the economy.
Seconding the motion, the Majority Leader, Senator Ahmad Lawan, also faulted the court, saying even though he voted against the amendment; he believed that the legislature should be defended as an institution.
Bukola Saraki,the President of the Senate, in his remarks, said the lawmakers who spoke had been very clear on separation of powers.
He stated that everybody had the responsibility to protect the institutions of the legislature and the judiciary.
Saraki put Akpabio’s prayer to voice vote and it was unanimously granted.