by Itodo Samson
Matters Arising from the Senate electoral amendment
- Ouster Clause
` The amendment by the Senate in Section 87 (24) and (25) seems to oust the jurisdiction of the Court in matters relating to party primaries. Specifically, the courts are precluded from halting the conduct of party primaries, congresses or general election pending the determination of any suit. The proposed amendment reads;
- Notwithstanding the provisions of this Act or rules of a Political Party, an aspirant who complains that any of the provisions of this Act or rules of a Political Party has not been complied with in the nomination of a candidate of a Political Party for election, may apply to the Federal High Court or the High Court of a State or the FCT for redress.
- Nothing in this section shall empower the Courts to stop the holding of ad-hoc delegates elections, primaries or general election or the processes thereof under this Act pending the determination of the suit.
This proposed amendment is contrary to the provision of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Section 4 (8) of the Constitution is instructive;
Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.
Nigeria is a constitutional state. A constitutional state is the one with sublime belief in constitutional government, i.e., the one run on the strict and unequivocal insistence on the principles and practice of government regulated by a constitution. Constitutional states, first and foremost, recognise the supremacy of the constitution as the most fundamental and philosophical law of the state as it defines the rights and duties of persons and institutions. From this principle grew the tradition of stating as early as possible in the preliminary sections (usually Chapter 1) of any democratic constitution that: “This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the country.” The twin doctrine of separation of powers and checks and balances provides guarantees for power sharing and democratic accountability. A constitutional state, in effect, is ideally a state where the rule of law reigns supreme and where the conduct of state operation or governance is run on the basis of the stance of the law or the constitutions.
All institutions; legislative, executive and judiciary derive their powers from the constitution. Any power exercise out of the constitution is null and void. Legislative powers cannot be exercised inconsistently with Constitution. In Nafiu Rabiu V. The State and A.G. Abia State V. A.G Federation, the Supreme Court has consistently upheld the supremacy of the Constitution as the supreme law of the land. In the words of the late Justice Udo Udoma, ‘The function of the Constitution is to establish a framework and principles of government…”
The Senate ought to have been guided by the provisions of the Constitution in making amendments to the electoral act. Section 4 (8) of the Constitution bars the National Assembly or a State House of Assembly from making laws that either ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established. The new section 87 (24) and (25) is an ouster clause and should be expunged. Ousting the jurisdiction of a court undermines the Constitution and this is antithetical to constitutional democracy.
- Can the National Assembly Legislate on Local Government Elections?
The Senate in its wisdom sought to entrench democratic elections at the local government level by expanding the application of the Electoral Act to local government elections. This is against the background of the overbearing influence and control of state governors on the State Independent Electoral Commission (SIEC). SIECs are a constitutional creation responsible for organising elections into local government councils within the state. Section 197 and Paragraph 4 of Part II of the Third Schedule to the Constitution establishes the SIEC as one of the State executive bodies.
The contending issue in this amendment is whether the National Assembly has the power to make laws with respect to the procedure for the conduct of local government council elections considering the fact that the State Independent Electoral Commission is one of the State Executive bodies established under section 197 of the Constitution with power to organize, undertake and supervise local government elections.
In response to the question as to whether the National Assembly has the powers to make laws for the procedure for the conduct of local government council elections, the answer is that by the combined provisions of paragraphs 11 and 12 of the Second Schedule to the Constitution, the National Assembly is empowered to make laws for the Federation in respect of the procedure to regulate elections to local government councils. Specifically, paragraph 11 of the Second Schedule to the Constitution states that the National Assembly may make laws for the Federation with respect to the registration of voters and the procedure regulating elections to a local government council. Paragraph 12, on the other hand, states that nothing in paragraph 11 shall preclude a House of Assembly from making laws with respect to election to a local government council in addition to but not inconsistent with any law made by the National Assembly. When paragraphs 11 and 12 are together, the effect is that the National Assembly and State Houses of Assembly may make laws concerning local government council elections but the catch is that in the event of a conflict between a law made by the National Assembly and a law made by a State House of Assembly concerning local government council election, the state law shall be void to the extent of its inconsistency. Therefore, to the extent that the new insertions as proposed by the Senate relate to the procedure for the conduct of local government council elections, the Senate acted within its constitutional legislative competence.
- Sufficiency of documentary evidence
Section 142 of the principal Act is amended by inserting a new section 142A. The new section states that:
“ It shall not be necessary for a party who alleges non-compliance with the provisions of this Act and the published manuals, guidelines, regulations, procedures or directives issued by the Commission for the conduct of elections to call oral evidence if originals or certified true copies of electoral documents or materials used by the Commission to conduct the elections in the polling units (s) where the non-compliance is alleged are listed in a petition and tendered at the trial at of the petition in proof of the non-compliance complained of”.
The section dispenses with oral evidence where the petitioner pleads and tenders original or certified true copies of the documents or materials used to conduct the elections in the area or areas in dispute. The amendment accords with the position of the Evidence Act that certified true copies of public documents can be tendered from the Bar if they are pleaded. The new section saves time as well as help to fast-track hearing of election petitions.
- Over legislation
There is a growing tendency of legislators to over legislate in its bid to provide for all forms of eventuality. The Senate in its current amendment of the electoral act has excessively legislated in certain respects especially in relation procedure for elections. It must be pointed out that over legislation has its dark sides; not only does it require a large agency and resources to enforce, it could potentially stifle the electoral commission. Most times, over legislation benefits the lawmakers, for instance, the present amendments create several offences with stiffer penalties for INEC officials. In fact, certain offences do not carry the option of fine but outright imprisonment upon conviction. One wonders why the Senate refrained from stiffening penalties for offences such as buying of votes, bribery and conspiracy, intimidation, electoral violence, etc. in this current amendment. However, it is pertinent to note that the judiciary has the right to annul legislations. We can only hope that the law will continue to transform itself.
In conclusion, these proposed amendments by the Senate will no doubt facilitate electoral justice and accountability. It is hoped that the House of Representatives will conclude their ongoing amendment process since we are just over 408 days to the 2019 general elections and hopefully adopt most of these laudable Senate amendments. It is important to underscore the need to review these amendments to ensure their compliance with constitutional provisions and applicability within the Nigerian electoral landscape. It is also important that all the amendments done so far be harmonised into one single document at the end of this ongoing review process.
Op–ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija
Samson Itodo is an elections and constitution-building enthusiast and he works with the Youth Initiative for Advocacy, Growth & Advancement (YIAGA). He tweets @DSamsonItodo.
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