One of Nigeria’s foremost legal practitioners, Mr. Femi Falana, SAN has recently published an opinion on the needless controversy over one (1) out of the forty five (45) clauses in the proposed amendment to the extant Electoral Act (see Vanguard Newspaper of Friday 23rd February, 2018).
The main thrust of the clause is to amend the existing section 25 (1) of the Electoral Act by setting out the order or sequence of general elections in the country.
If passed into law before the next general elections, the amendment shall become effective in the conduct of those elections, being a law made by the National Assembly in exercise of its constitutional power to make law on elections into the offices of “President and Vice President or Governor and Deputy Governor and any other office to which a person may be elected under the (sic) Constitution, excluding election to a local government council or any office in such council” provided in the Exclusive Legislative List (see item 22 of the list).
However, in the view of the learned Senior Advocate of Nigeria, the said proposed clause is misconceived and an infringement on the general powers conferred on the Independent National Electoral Commission (INEC) by the Constitution to “organize, undertake and supervise” the general elections within its purview. Mr. Falana, SAN concluded his paper by declaring quite magisterially, in my view, thus:
“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 power of 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 election”! (Emphasis mine).
Given the public personality of Mr. Falana, SAN especially in the legal discipline, it is quite logical to believe that his legal opinion is weighty enough to sway not only the minds of most Nigerians untrained in the law, but also that of INEC itself which seems to be caught in the middle of the unnecessary controversy.
This rejoinder is an attempt to highlight the untenable premise of Mr. Falana, SAN’s commentary which led to the alarming conclusions he reached; conclusions which, as we shall demonstrate, are not only legally unsupportable, but also appear calculated to encourage INEC to engage in acts of lawlessness and defiance against an arm of the Government of Nigeria charged with the legitimate power to make law.
The rejoinder shall focus on those two issues.
Power of the National Assembly to set sequence of Elections
A careful perusal of the proposed clause shows that what the National Assembly has done is to set the sequence or order of elections into the offices to be contested in a general election, not the date for conduct of those elections. Sequence or order of performing a task is clearly not the same as date(s) of doing the task.
Sequence refers to “a particular order in which related things follow each other”. The synonyms of the word “sequence” include succession, order, course, series, chain, concatenation, train, string, cycle, progression etc.
On its part, “date” refers to “a numbered day in a month, often given with a combination of the name of the day, the month, and the year”. Mr. Falana had argued in his paper that the National Assembly lacks power to fix election dates.
From the foregoing, by proposing to amend the Electoral Act to set the sequence of general elections, the National Assembly has not set the dates for the elections, even as it may well have been able to do so pursuant to powers conferred on it in the First Alteration Act since the power to set date of elections could, by necessary implication, include the power to set sequence of the election which the National Assembly has sought to do with the proposed amendment.
The next issue is whether by setting the sequence of general elections as proposed in the following order, namely:
A) National Assembly Elections,
B) Governorship and State Assembly Elections, and
C) Presidential Election, the National Assembly has acted ultra vires its constitutional powers to make law or the particular proposed amendment to justify the conclusion that the particular clause is unconstitutional, null and void for contravening the provisions of paragraph 15, Part 1 to the Third Schedule of the Constitution set out pursuant to section 153 of the Constitution.
For the avoidance of doubt, the said paragraph deals with the general powers of INEC over elections and related matters.
In exercising its power to set sequence of elections through an Act, the National Assembly is obviously complying with the provisions of the First Alteration Act to the Constitution in sections 5 (a), 10 (a), 11 (a) and 17 (a), which specifically removed the powers of INEC to set dates of elections into the offices of President (and Vice President), National Assembly membership, Governor (and Deputy Governor) and House of Assembly membership hitherto granted in the original text of the Constitution in sections 76 (1), 116 (1), 132 (1) and 178 (1) and placed the power to set date(s) of elections to be determined by the Electoral Act!
Although Mr. Falana acknowledged that the proposed clause apparently derives its origins from this constitutional change, yet he tried to diminish the effectiveness of the constitutional change by suggesting that the general powers of INEC in paragraph 15, Part 1 of the Third Schedule to the Constitution to “organize, undertake and supervise” are sufficient to trump the specific powers conferred by the First Alteration Act to the Constitution which removed the specific power to set date from INEC and placed it within the Electoral Act.
The position taken by the learned Senior Advocate of Nigeria is clearly wrong and unsupportable. The First Alteration Act is an intrinsic part of Nigeria’s Constitution making it as supreme as every other portion of the Constitution.
If anything, its provisions altering specific portions of the original text of the Constitution unquestionably supplants those portions.
Sections 76 (1), 116 (1), 132 (1) and 178 (1) of the original text of the Constitution have since been supplanted by sections 5 (a), 10 (a), 11 (a) and 17 (a) of the First Alteration Act.
Those provisions are the only portions of the Constitution which hitherto (before the First Alteration Act) and still (based on the First Alteration Act) specifically deal with the power to set dates for elections into those offices.
Without doubt Mr. Falana must be familiar with the principle of interpretation generalia specialibus non derogant: “provisions of a general statute must yield to those of a special one” or which states that if two laws govern the same factual situation, a law governing a specific subject matter (lex specialis) overrides a law which governs only general matters (lex generalis).
In several cases, the Supreme Court of Nigeria has upheld this principle of interpretation. One such notable cases is Attorney General of the Federation v. Abubakar (2007) 10 NWLR (Pt.1041) 1, where the court affirmed the application of rules of statutory interpretation in constitutional matters, and (per Tabai JSC) upheld the application of the principle while setting aside the declaration of the office of Vice President occupied by Alhaji Atiku Abubakar as vacant.
Therefore, the general power of INEC to “organize, undertake and supervise” elections cannot by any stretch of interpretation or imagination override the specific power to set dates of elections which, by virtue of the provisions of the First Alteration Act, is now to be determined by an Act of parliament and not by INEC as hitherto stipulated in the now inoperative sections 76 (1), 116 (1), 132 (1) and 178 (1) of the original text of the Constitution.
In view of the foregoing, the Court of Appeal decision in National Assembly v. President (2003) 9 NWLR (Pt. 824) 104, cited by Mr. Falana to justify his conclusion that INEC alone has the constitutional discretion to fix dates of elections bear no relevance to the issue at stake because it was decided 7 years before the constitutional changes contained in the First Alteration Act were passed in 2010.
Mr. Falana also referred to PDP v. Sylva (2012) 13 NWLR (Pt. 1316) 85, NDP v. INEC (2013) 20 WRN 1 at 45 and Faleke v. INEC (2016) 50 WRN 1, to justify his contention that INEC’s discretionary powers to fix dates of elections are unquestionable.
In addition to the fact that those decisions refer to INEC’s purported discretionary powers under paragraphs 15, Part 1 to the Third Schedule of the Constitution, the decisions are inapplicable to the current issue as they did not decide the constitutional implication of the constitutional changes introduced by the First Alteration Act which removed the specific power hitherto conferred on INEC to fix dates of elections contained in the original text of the Constitution and placed that responsibility in the Electoral Act.
The last case of Attorney General, Abia State v. Attorney General of the Federation (2002) 1 WRN 1 at 45 cited by Mr. Falana to contend that a provision in an Act of the National Assembly in respect of a matter already covered by the Constitution is liable to be “invalid for duplication and/or inconsistency and therefore inoperative”. This contention is once again inapplicable in the current matter.
As we have already submitted, after the First Alteration Act was passed in 2010, INEC no longer has power to fix dates of election.
The constitutional change has placed that responsibility in the Electoral Act. This is a completely different scenario from that stated in the AG Abia decision (supra), which refer to when an Act seeks to make conflicting provision in a matter already contained in the Constitution.
Consequently, the current effort of the National Assembly is perfectly within the powers of the National Assembly to undertake through the Electoral Act as it is based on a constitutional donation of powers hitherto specifically conferred on INEC by the Constitution but subsequently removed.
In any event, as the President has had cause to do previously, any suggestion that the proposed amendment is unwarranted can be checked by the President through exercise of his veto power, whenever the amendment bill is presented for his assent.
Where the President assents the bill into law, INEC is duty bound to comply with the new amended provisions, including the sequence for the general elections.
Where the President refuses to assent and the National Assembly is able to mobilize the required super-majority to override the presidential veto, the Bill automatically becomes an Act which the INEC is bound to comply with.
Or is Mr. Falana suggesting that it’s only if the President gives his assent to the amendment that INEC may feel bound to comply with the Act? I am of the humble view that any opinion which urges INEC to defiantly disobey an Act of the National Assembly must be deprecated as a call to anarchy.
This brings me to the second aspect of Mr. Falana’s commentary which motivated this rejoinder.
Whether INEC is permitted to sit back and ignore an Act of the National Assembly
In concluding his paper, Mr. Falana declared “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 election”.
This weighty declaration of is shocking and ought to be rejected by all well-meaning Nigerians including INEC because it lacks any legal foundation and is a subtle way of asking INEC to assume the adjudicatory role of the Supreme Court and become a law unto itself.
In fact, it is capable of setting-off a chaining reaction which can only undermine the democratic system Nigerians of all classes have laboured to keep steady since 1999, with great efforts.
The power of the National Assembly to make law must be distinguished from the rightness or otherwise of the law made. No matter how dissatisfied with any law made by the National Assembly, citizens and institution to which they apply are duty bound to comply with the law, until set aside by the courts which alone have the constitutional powers to review the constitutionality of laws made by the National Assembly; or until the National Assembly itself tinker with it by a subsequent law.
Neither INEC nor any other body or person can assume the power to interpret the correctness of a law made by the National Assembly in valid exercise of its constitutional powers to make law, even if it’s a law which may subsequently be declared unconstitutional by the court.
Mr. Falana’s unsolicited advice to INEC is a call to trample on the rule of law upon which our constitutional democracy derives its sustenance.
Remarkably, even as he cited a number of inapplicable cases to contend that INEC has a general discretionary power to fix dates of election within its purview, Mr. Falana did not cite a single case which permits INEC to turn itself into an interpreter of the validity of an Act of the National Assembly, because no such case exists.
In several cases, the Supreme Court of Nigeria has warned against resort to self-help or discretion by government, authority or persons whenever there is a legal dispute.
For instance, in Miscellaneous Offences Tribunal v. Okorafor (2001) 18 NWLR (Pt. 745) 310 at 327, the Supreme Court said: “Nigerian Constitution is founded on the rule of law, the primary meaning of which is that everything must be done according to law.
It means also that government should be conducted within the framework of recognized rules and principle which restrict discretionary power”.
Several years earlier during the years of impunity under military regimes in Governor of Lagos State v. Ojukwu (1986) 1 NWLR (Pt. 18) 621 at 647, Per Oputa JSC), the Supreme Court was still able to admonish that: “The rule of law presupposes that the state is subject to the law, that the judiciary is the necessary agent of the rule of law… that by our constitution, the determination of all actions and proceedings relating to matters in dispute between persons, Government or authority”.
In the same case, Obaseki JSC also reaffirmed the sacrosanct position of the rule of law as opposed to discretional powers thus: “Rule of law primarily means that Government should be conducted within the framework of recognized rules and principle which restrict discretionary powers, which Coke colourfully spoke of as a golden and straight method of law as opposed to the uncertain and crooked cord of discretion”.
To conclude, it’s obvious that INEC cannot allow itself to be derailed from his constitutional obligations by the unsupportable opinion offered by Mr. Falana as such opinion is an invitation to trample on the rule of law and lay foundation for abrogation of the still nascent constitutional government of the country.
Certainly, there is no portion of paragraph 15, Part 1 of the Third Schedule to the Constitution which confers powers on INEC to determine which law to obey, or not to approach the courts for judicial review of the constitutionality of any act of the National Assembly against which it disagrees.
On the contrary, there is no question that in several positions of the Constitution, starting with section 4 (2), the National Assembly is empowered to make laws in respect of matters listed in the Exclusive and Concurrent Lists of the Constitution, one of which is the power to legislate on elections into national and states executive and legislative offices!
*Omoregie is Professor of Comparative Constitutional Law, National Institute for Legislative and Democratic Studies, Abuja.*
