A lecturer in the Department of Jurisprudence and International Law, University of Ibadan, and former Secretary of the Nigerian Bar Association, Oyo State chapter, Dr KazeemOlaniyan, speaks with IMOLEAYO OYEDEYI on sundry judicial issues.
In a recent judgment, a Federal High Court in Umuahianullified the provisions of Section 84 (12) of the newly amended Electoral Act on the grounds that the section violates the provisions of the 1999 constitution as amended. As the judgment continues to generate reactions across the country, what is your take on it, sir?
The judgment nullifies the Section 84 (12) of the newly amended Electoral Act on the ground that it impinges on the provisions of the 1999 constitution, which is superior to any Act of the National Assembly, because it is the grundnorm for the country. The grundnorm means the supreme law upon which all the paraphernalia of governance rests. In view of this, the judge now said that the Attorney-General of the Federation should with immediate effect expunge that particular section of the Electoral Act.
My comment is this: there is nothing wrong in a competent court of law or judge saying that the interpretation of a section of an Act of the NASS infringes on the provisions of the constitution. The courts have been given the power to interpret the laws of the land or any Act of the parliament anytime and anywhere in the country. So, if any court now says that the interpretation of any Act infringes on the provisions of the constitution, the same court also has the power to nullify the section or provisions and then declare the section as null and void.
But what the court does not have the power to do is to hand over to the Attorney-General powers that the constitution does not give it. The court does not have the constitutional right to ask the AGF to expunge a section of an Act of the NASS or constitution. And the AGF as well does not have that such power. What should have happened is that after the court has nullified the section as being inconsistent with the provisions of the constitution, the court should ask the NASS, whose constitutional power lies in the making and unmaking of laws, to amend that provision of the Electoral Act so the it can be in line and not in breach of the country’s constitution.
To me, it is the exclusive preserve of the court to interpret the constitution and any other Act of the NASS. And when the NASS also breach the constitution with any Act, the court also has the power to declare such Act null and void. But the court in this instance of Section 84 (12) did not stop at nullifying the Act, but also went ahead to order the AGF to expunge the provision from the Electoral Act, which is out of place, because you cannot give a person or an office a power that the constitution hasn’t provided for.
But the AGF has said that he would proceed with the directive of the court. Are you saying that he would be running contrarily to the constitution by making such a move?
Yes, that is exactly what I am saying. If the AGF goes ahead to expunge the provisions in the Electoral Act, how is he going to do that? Will he delete the provisions? Or how is he going to remove it? He simply does not have the power. The power conferred on the AGF as the number one law officer of the country is to advise the president as the commander-in-chief of the Armed Forces, whose constitutional position is to endorse any bill from the NASS before it becomes an Act. He has every right and power to advise the president. He is responsible to no other person, except the president. The AGF has that mandate to advise the president not to append his signature to any bill, if he has seen the bill before the president. However, if AGF did not see the bill before the president and the court thereafter gave such an order, he should either proceed to the court to appeal and make the court know that he doesn’t have such power or appeal to the NASS to amend the Section. That is the action he should have taken, not to say that he would proceed to carry out the court order. Is he going to tear the document?
The NASS does have a process. There is a process they follow before coming up with any ACT, which is not just a piece of paper that anybody will say he can tear off and throw inside the dustbin. It is not something that somebody will say this part is not good, tear it off or delete it. No, it is not like that. It follows a process, which is called the amendment process. And it can only be carried out by the NASS. So whatever the AGF has said, it is just out of his pocket.
But the two Chambers of the National Assembly have resolved to appeal the judgement, saying section 4 of the 1999 constitution as amended empowered them to make laws for the peace, order and good governance in the country, what do you have to say on this?
Yes, they are very correct. It is true and I stand by them on that. The power to make laws for good governance, peace and for the democratic process to run and be in tune with the international best practices rest with the NASS. So, they are correct. They have the power constitutionally. But they will appeal only the later part of the court judgement which asks the AGF to delete the controversial provision. They are not going to appeal the first pronouncement of the court that the provision infringe on the constitution. They don’t have such power, because it rests only with the court. Where they can appeal and also sustain is the part that gave the AGF the power he doesn’t possess constitutionally. It is like the court gave the NASS power to the AGF. Why the AGF? What concerns the AGF with issues bordering on making and amendment of laws? He is simply a lawyer, not a court or the NASS. He is a subordinate of the executive answerable directly to the president.
But the president has signed that law. If I were the president, having endorsed an Act of the NASS and made it a law and an officer I appointed now would go against the law, saying he would delete it, I would take it as an aberration. And truly, it is a serious embarrassment to the office of the president. Is it that the AGF did not see it before the president signed it? He is just a law officer to represent the government in any case against them. What right does he have to say he will delete a provision in an Act of the NASS? He doesn’t make, unmake or amend laws, because we are operating what is called separation of powers.
But it will be recalled that the president before signing the Act had asked the NASS to amend that particular section 84 (12), but for days, the lawmakers never seemed to be interested in doing that, while pressure kept on mounting on the president to endorse the Act…
What the president ought to have done at that level is to deny his assent. He was not coerced or forced to sign it. So, he should not have started proposing an amendment after signing it. The president should have insisted that the NASS take a second look at the bill and amend the necessary part before he appended his signature, after all that won’t be the first time that he would be denying his signature. You will remember that the process of signing and amending had started more than a year ago. The bill has been moving in between the NASS and the president, who has refused to sign it on three different occasions. Yet, the NASS kept taking the bill back to do the necessary amendment he observed, up until it was finally signed. So the whole process has been with the NASS. And that is how it should be. Even if you need to correct grammatical errors in a bill before signing, it has to be the NASS. The court or the AGF cannot do it. The court can only nullify a provision and say it is of no effect.
Meanwhile, the lawmakers further argued that Section 228 of the 1999 constitution as amended also empowered them to make laws to ensure internal democracy within the political parties. How applicable is this claim to the Section 84 (12) of the Electoral Act?
The reason it is applicable to Section 84(12) is that there is a difference between what the NASS meant in that provision and what the interpretation the court gave it. In the Section, what the NASS wrote down has to do with political office holders, not public office holders. Don’t forget that the public office holder is a big umbrella, which includes you and me who are working for the public. Being a lecturer in a federal university, I am a public servant. Civil servants are also public servants. But political office holders are those that occupy political offices, which don’t include people like me being a lecturer. So these are the two main points of contention in the provision. The NASS are saying that what the court has interpreted is different from what they have inputted into the Electoral Act. And that is why the NASS have resolved to appeal the court judgement.
Constitutionally, the NASS is mandated to make laws that will regulate the internal democracy within the political parties. They are also expected to make laws for internal policies of the government. Let me give you an example, the president through the Executive Order made some laws to grant the judiciary autonomy. But because the NASS has not amended the country’s constitution to reflect it, the law has not taken effect.
Same thing applies when the president wanted the local government to be autonomous and made an Executive order towards that effect, the bill has not become a law, because the NASS has not ratified it. The president Executive Order is being used only in the case of an emergency when there is a lacuna in the constitution. So when there is no lacuna or such effect in the governance of the country, then, the Executive Order does not have any place or usefulness.
And coming back to the main issue, I think the NASS are right by putting the political office holder in Section 84(12) and not the public office holder which is wide. The implication is that if someone like me wants to contest for an elective political position, I don’t need to first resign my position as a lecturer.
In recent times, there has been this trend of court sacking political office holders on the grounds of defection. A most recent one is both the Ebonyi State governor and the Cross River State lawmakers that were sacked for defecting from the party upon which they were elected. What are the true provisions of the law concerning the votes recorded at the election, does it belong to the candidates or the political parties?
You see, our laws say that members of the NASS or state House of Assembly who are elected on the platform of a certain political party cannot defect to another political party, while still in service. But the same constitution is silent when it comes to governorship as there is no part of the constitution that says any governor that emerges through one political party should resign if he wants to cross to another political party. So what I think about the case is that the governors have been hiding under this lacuna in the constitution, which provides for the legislators, but not for the governors.
The same laws did not even say anything about the presidency. So, a president can easily wake up one morning and defect from his party to another party, with no consequence. As it is now, if nothing is done, sooner or later, we will start seeing a president dumping his or her political party for another one, which amounts to bastardisation of the democratic process, a serious one. So in my view, I will say the judgement sacking Umahi is very sound, although it is not logical. It is not logical, because there is no basis for it in our constitution. But it is sound, because it is now calling the attention of the NASS to block that lacuna in the amendment of the constitution. It is basically an attempt to stop the bastardisation of our democratic development.
But based on our laws, the votes are owned by the political parties. I don’t know what to do tomorrow. But as of today, the votes belong to the parties. As the NASS has included independent candidacy in the constitution, maybe the thing will change as anybody can contest without being a member of a political party. But as of the time of that judgement, you cannot contest for a political office in the country without being a member of a political party, because it is the party that nominates and campaigns. Even the political party does the sponsoring and it is even the party symbol that is printed on the ballot papers, not the candidates’ names. But I believe that not until the NASS addresses that lacuna in the constitution, we won’t stop having issues of defection of the political office holders, especially the governors.
Culled from tribuneonlineng.com