…. As Senate rejects court order, asks CJN to caution judicial officers
OWEDE AGBAJILEKE, Abuja
The Legal Department of the National Assembly has rejected the reasons adduced by President Muhammadu Buhari for withholding assent on the Electoral Act Amendment Bill.
The rejection of the president’s argument was contained in a report of the Legal Department submitted to the Senate leadership, BusinessDay reliably gathered.
The development comes as the Senate has resolved to write the Chief Justice of Nigeria (CJN), Walter Onnoghen, over a court order which restrained the National Assembly from taking further action on the Electoral Act (Amendment) Bill.
It resolved to send a correspondence to the Chief Justice to caution judicial officers from stopping the National Assembly from exercising its constitutional duties.
The upper legislative chamber had on Tuesday, at its closed door session, referred the President’s letter withholding assent to the amendment bill, to its Legal Department for legal advice.
Upon the submission of the report to the Senate on Wednesday, the Senate delegated a team of senators led by the Deputy Senate President, Ike Ekweremadu, to consult with the House of Representatives.
According to a source, the consultation yielded positive results.
The report, seen by BusinessDay, pointed out that the President’s claims that the amendment introducing a specific sequence for elections under Section 25 of the Principal Act infringed the discretion of the Independent National Electoral Commission to, “organise, undertake and supervise elections” is flawed.
The report further stated that “the correct legal position however is that by 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) in line 2, by inserting immediately after the word ’commission ‘the words’ ’in accordance with the Electoral Act.
“From the above amendment, it is crystal clear that the power to regulate the principal elements of all Federal Electoral process were expressed by the above amendement, removed from the Independent National Electoral Commission land vested in the Assembly (National Assembly) which has the power to make laws for peace, order and good government” of the Federal Republic of Nigeria and any part thereof”.
The report added that: “The argument of the President that the sequencing of the elections under section 25 infringed the discretion of INEC without expressly pointing out what specific aspects or ways and manner, cannot be a basis for legal or constitutional argument or decision.
“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.”
The report also stated that the terms “Organise, undertake and supervise” may have conferred a wide discretion on lNEC in matters of all logistics in the preparation and conduct of elections, the issue of discretion only comes to fore in the actual details of the preparation, organising 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.”
On 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, the report noted that it is not entirely correct adding that the view could be misplaced.
The report states that “the new Subsection (3) to Section 138 actually clarifies 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 Constitution of the Federal Republic of Nigeria 1999.”
Also, the document defended the amendment to Section 152 (3)-(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”.
According to the report, “It is within the competence of the National Assembly to make laws in respect of the procedure regulating elections into the Local Government Councils in accordance with item 11 (Eleven) of the concurrent Legislative List of the 1999 Constitution (as amended)”.
Also on Thursday, the Senate resolved to write the Chief Justice of Nigeria (CJN), Walter Onnoghen, over a court order which restrained the National Assembly from taking further action on the Electoral Act (Amendment) Bill.
It resolved to send a correspondence to the Chief Justice, to caution judicial officers from stopping the National Assembly from exercising its constitutional duties.
This was sequel to a Point of Order moved by Senate Minority Leader Godswill Akpabio and seconded by Senate Majority Leader, Ahmad Lawan at Thursday’s plenary.
Recall that a Federal High Court, Abuja, had on Wednesday, asked the National Assembly not to take any action on the Bill amending the Electoral Act which President Muhammadu Buhari refused to sign into law.
Justice Ahmed Mohammed made the order while delivering ruling in an application filed by the Accord through its counsel, Wole Olanipekun (SAN), asking for a preservative order on the matter.
The judge said: “All parties in the suit are hereby directed to maintain status quo pending the determination of the substantive suit between now and the next adjourned date.”
The Senate argued that the court order was a clear breach of the principle of separation of powers as enshrined in the constitution.
It agreed with Akpabio to write a letter to the CJN to draw his attention to the court ruling, particularly as it offended the concept of separation of powers.
“I don’t think that it is right for the court to interfere in the affairs of parliament when we are in the process of making a legislation.
“I believe the court comes in only after we are through (with the process), then the court can intepret,” he submitted.
