The political apprehension behind the 2018 amended Electoral Act as passed by the National Assembly, which President Muhammadu Buhari refused to sign into law but okayed by the Appeal Court, on August 2, has remained a source of concern to political buffs.
Though, the National Assembly had removed the controversial section after the furore it generated and resent the revised edition of the bill to President for assent, but the judgment of the Court of Appeal cleared the way for a possible re-introduction of the provision in the future.
This has led to many guesses as to what will happen to the bill now that the court had made a definite pronouncement on the validity or otherwise of the proposal.
The Court of Appeal sitting in Abuja had on August 2 upturned the judgment of a Federal High Court, which had on April 15 held that the National Assembly has no power to re-order sequence of election outside the election umpire, the Independent National Electoral Commission (INEC).
The high court in a judgment following a suit filed by the Accord Party (AP) challenged the constitutional authority of the national legislature to re-order election sequence, which it said is constitutionally vested in INEC.
Justice Ahmed Mohammed in the judgment held that indeed the National Assembly lacked the power to reverse the 2019 election timetable earlier released by the INEC.
The court ruled that the attempt by the National Assembly to implement Section 58 of the Constitution, which allows the Legislature to override the decision of the President was null and void.
Recall, in March this year, the National Assembly passed a bill reversing the 2019 timetable as earlier released by INEC which had presidential election before other elections.
By the National Assembly timetable placed the presidential election last in its order of preference.
President Buhari refused to assent to it.
As a follow up, the Accord Party had challenged the amendment – with the National Assembly, the Attorney General of the Federation and INEC as defendants – saying the House lacked the power.
Among reliefs the party sought before the court, which were granted, include “A declaration that the 3rd Defendant, is the only body and or institution constitutionally vested with the powers, vires, and duties to organise, undertake and supervise elections to the offices of the President and Vice President of the Federal Republic of Nigeria, the Governor and Deputy Governor of a State, membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation, including fixing or assigning dates of the said elections and sequence of same”.
However, the National Assembly appealed the judgment, hinging its argument on grounds that it has the power to legislate on matters affecting Nigerians, including election matters.
In its appeal, the House asked the appellate court to set aside the decision of Justice Mohammed, and dismiss in its entirety, the Plaintiff’s claims in the Originating Summons.
The National Assembly stated that the learned trial judge, erred in law when he assumed jurisdiction to entertain and determine the suit, when the purpose of passing the Electoral Act (Amendment) Bill 2018 into an Act.
NASS contended that the trial judge wrongly failed to appreciate that, until the Electoral Act (Amendment) Bill 2018 was passed into an Act by the exercise of the legislative power of the National Assembly to over-ride the veto or withholding of assent to the Bill by the President, the same remained inchoate and not capable of vesting a justiciable civil right or obligation on any person, including the Plaintiff.
The legislature further contended amongst others, that the lower court wrongly interpreted the provisions of Section 4(8) of the 1999 Constitution (as amended), so as to reach the conclusion that the Federal High Court was vested with jurisdiction to impugn a Bill perceived to be unconstitutional.
“The lower court was further in error, when it relied on the certificate of the Clerk of the National Assembly pursuant to the Acts Authentication Act on the Bill (Exh ‘A’), as proof that the Bill’s constitutionality could be challenged in a superior court of law.
“The learned trial judge erred in law, when he failed to appreciate that the Plaintiff’s suit (subject-matter of this Appeal), was not properly constituted and therefore, incompetent”, it stated.
Reasoning along the argument of the National Assembly, the five-member panel of the court headed by the court’s President, Zainab Bulkachuwa, said that a bill could not be challenged in court until it becomes an Act.
Justice Bulkachuwa ruled that the Federal High Court wrongly assumed jurisdiction to entertain the suit and erroneously struck down the provision.
“The lower court operated under the erroneous impression that the bill had become an act,” Ms Bulkachuwa said in her lead judgment which was consented to by the four other members of the panel.
“A bill does not become an Act until it has been assented to by the President after it has been passed by the two Houses of the National Assembly,” she ruled.
She also said: “The bill, which is Exhibit 1, remains a bill and it is inchoate”, noting that “the National Assembly has not completed its legislative duty as far as the Electoral Act (Amendment) Bill, 2018, is concerned.”
She said a court could only nullify a law if it violated a provision of the Nigerian Constitution noting a court could not do such “at the embryonic stage of a legislative process.”
She said the bill “has no binding force and cannot have any legal effect of the law” since the bill had not become an Act.
“The bill has no legal effect and cannot create a cause of action,” the court added.
The court did not bother to pronounce on the constitutionality of Section 25 of the bill since it declared that the suit was premature, coming ahead of the maturity of the bill into an act.
Felix Omohomhion, Abuja
