Elections reordering: INEC under pressure to sue NASS

* We’ll take action at appropriate time- INEC
* Jega backs legal option* NASS action illegal- Falana
* We stand by our decision on reordering of elections – Senate

Indications emerged on Sunday night that the Independent National Electoral Commission (INEC) may seek legal redress over the National Assembly reordering of 2019 elections timetable earlier announced by the electoral body.

The Daily Times gathered that INEC is consulting on tactics to be adopted in its constitutional powers to fix dates and conduct of elections that are being usurped by the National Assembly with the alteration in the elections sequencing done by INEC.

The two chambers of the National Assembly through the Conference Committee on the Electoral Act Amendment Bill reordered INEC’s arrangement of presidential election, followed by National Assembly poll and governorship/ state assemblies’ elections.

The legislators had instead ratified that the rounds of elections should start with the National Assembly, followed by governorship and state assemblies while the presidential election come last.

But INEC, it was learnt, is waiting for the conclusion of the ongoing Constitution Amendment process by the National Assembly and its final transmission to President Muhamnadu Buhari for his assent or otherwise before taking necessary action on its constitutional mandate.

Consequent upon the reordering of INEC’s timetable for 2019 general elections, the electoral body is under pressure to challenge the right of the legislative arm to alter the sequence of elections ought to be the exclusive right of INEC.

A source close to INEC confided in The Daily Times that, “The constitution amendment process under which the National Assembly did the reordering is still in progress, it is not yet concluded. This makes it difficult for INEC at this stage to say either we are going to court or not.

“So far, the issue is at the stage of law making. It is not the right time for INEC to comment or take action on the development. We will do so at the appropriate time”.

Apart from opinions of legal luminaries, civil society organisations, public commentators, the immediate past INEC Chairman, Prof. Attahiru Jega also urged the Commission to challenge the National Assembly in court.

Jega, who could not find any legal premise on which the National Assembly is resting in taking such action, said:
“I am still struggling to see where the National Assembly found the constitutional justification for what they have done. I will mention two specific provisions. First of all, in the Schedule of the constitution Part 15, section 1 of the said schedule, INEC has the constitutional power to organise, undertake and supervise elections.

“But that is not enough. In section 76(1), section 111(1) and section 78(1), it is categorically stated that elections shall be held on a date to be appointed by INEC. So if elections are to be held on a date to be appointed by INEC, where does the National Assembly gets the power”?

Obviously not satisfied by INEC’s foot- dragging in taking action, Jega said “both INEC and the interested parties have been reluctant to go to court for interpretation of constitutional provisions and this is significant because that has to do with the independence of the electoral bodies”.

Reacting to Jega’s advice, our source, who sought anonymity because of the sensitive nature of the issue, said the Commission is not reluctant to take action but taking its time, because “the amendment will still be subjected to presidential assent and if the president withhold his assent, INEC may not necessarily be the one to go to court but the National Assembly as the case may be.

But a human rights activist and a legal icon, Mr Femi Falana (SAN), has said that the National Assembly constitutionally lacks the power to fix or alter election timetable.

According to Falana, past attempts by National Assembly to use the Electoral Act to alter the sequence of elections fixed by the INEC have always failed.

He said, “In 1999 and 2007, the presidential election came up last while it came up first in 2015. In influencing the order of elections in 2015, the ruling party had thought that holding the presidential election first would have bandwagon effect on the outcome of the other elections. But the result was a disaster for the then ruling party.

“It has equally been confirmed that when elections into the legislative houses were held before other election in the past majority of sitting legislators lost their seats. So, there is no indication that President Muhammadu Buhari stands to benefit electorally from the decision of the INEC to retain the 2015 sequence of elections.

“But notwithstanding the reactions of the presidency and the National Assembly to the sequence of elections announced by the INEC, it is pertinent to review the relevant provisions of the Constitution, the Electoral Act and judicial authorities on the vexed issue.”

He said in fixing the timetable, INEC has exercised its powers under Sections 76, 116, 132 and 178 as well as paragraph 15 of Part 1 of the Third Schedule made pursuant to section 153 (1) of the Constitution.

Perhaps not aware of the state of the law, Falana said INEC has announced its intention to approach the Supreme Court to test the constitutional validity of the Electoral Bill 2018 if it is eventually signed into law by the President. Since there are indications that the President may withhold his assent in the circumstance, the National
Assembly has threatened to override his veto.

He cited the decision of the Court of Appeal in the case of National Assembly v. President (2003) 9 NWLR (PT 824) 104 at 143-144.

” In that case, President Obasanjo had refused to assent to the Electoral Bill 2002 which had been passed by both Chambers of the National Assembly and transmitted to him June 24, 2002. Subsequently, by a motion of veto-override the national assembly passed the bill into law. In an originating summons filed at the Federal High Court the INEC challenged the validity of the passage of the Bill into law and the constitutionality of Section 15 of the Act which had provided that general elections shall be held in one day.

“The trial court held that the Bill was properly passed into law but that Section 15 thereof was inconsistent with Sections 76, 116, 132 and 178 of the Constitution. Dissatisfied with the annulment of Section 15 of the Electoral Act, the national assembly filed an appeal at the Court of Appeal. On his own part, the Attorney-General of the Federation filed a cross appeal to challenge the passage of the Bill into law. In its judgment the Court of Appeal held that the manner of passing the bill into was unconstitutional but declined to set it aside on ground of public policy as the 2003 general elections were being conducted under the law. However, the Court of Appeal affirmed the decision of the Federal High Court on the illegality of Section 15 of the Electoral Act.

“Apart from the illegality of subjecting the provisions of the Constitution to the Electoral Act, the Alteration of the Constitution did not confer on the National Assembly the power of fix dates for holding the general election in Nigeria.

“To that extent, the National Assembly cannot use the Electoral Act to usurp the powers exclusively conferred on the INEC to appoint dates for holding the general elections in the country. Indeed, the Supreme Court has had cause, after the first 2010 Alteration of the Constitution, to confirm the discretionary power of the INEC to fix the dates for holding the general elections”.

“In other words, since the INEC has been empowered to organize, undertake and supervise all elections the National Assembly cannot rely on the provision of the Electoral Act to usurp the powers of the INEC to fix the dates for the elections. In view of the settled position of the law the INEC should not waste public funds by rushing to the Supreme Court to contest its own constitutional duty to organize, undertake and supervise the 2019 general elections”..

Though the legislative action has sparked a pocket of political protest in the Red Chamber of the National Assembly, the leadership of the Committee and by extension the legislative body as an institution, has insisted that it will stand by its decision in amending Section 25 of the Electoral Act.

The Chairman, House Committee on INEC, said, “The sequence of election provision in the bill is not targeted at anybody but aimed at given credibility to the electoral process by way of giving the electorate the opportunity to vote based on individual qualities of candidates vying for National Assembly seats”.

The Senate chairman on INEC and chairman of the Conference Committee, Senator Suleiman Nazif, said in reordering the elections, the National Assembly exercised the right conferred on it by Section 4(2) of the 1999 Constitution.
Nazif said: “For the avoidance of doubt, with the inclusion of section 25(1) which makes provision for sequence of election different from the one earlier by INEC has not in any way violate any provisions of the laws governing the operations of the electoral body”.

Further defending the action of the National Assembly, Senator Nazif said the sequence “does not in any way violate any provisions of section 76 of the 1999 Constitution which empowers INEC to fix dates and conduct elections”.

But a few senators referred to as pro- Buhari apparently unsettled by the decision of the larger house attributed the reordering to political power play ahead of the election as one of them, Senator Movie Omo- Agege, said it was targeted at the re-election bid of President Buhari.

A pro-Buhari senator, Senator Binta Mashi Garba, accused her colleagues of festering their own interest and not doing the reordering in the interest of the nation as claimed. She asked why the National Assembly did not consider holding the entire elections on same day to save the nation huge cost of running elections.

Our source in INEC also shared this opinion, saying that “the National Assembly could be doing the nation a lot of favour if it had suggested to INEC to run the entire elections on same day to cut cost”.

But the Senate spokesperson, Senator Aliyu Sabi Abdullahi, has disclosed that the Senate stands by the decision of the National Assembly on the constitution amendment and that the election reordering was done in the interest of the nation and to deepen the country’s democracy.

When asked what will happen if President Buhari fails to assent the bill, Senator Sabi said: “When we get to the bridge, we shall know how to cross it. Let us leave it till then”.