Falana: National Assembly Lacks Power to Fix Election Dates

By Sunday Okobi

 

A Senior Advocate of Nigeria (SAN), Femi Falana, on Thursday described the attempt by the National Assembly to rely on the Electoral Act to fix election dates as an illegality and interference in the exercise of the powers of the Independent National Electoral Commission (INEC) to appoint dates for holding the general election in Nigeria.

Falana argued in a statement on Thursday that the provision of the Electoral Bill, 2018 is inconsistent with Sections 76,116,132 and 178 of the Constitution.

He insisted that to the extent of such inconsistency, the provision of the Electoral Bill is illegal, null and void as stipulated by section 1 (3) of the Constitution.

He noted that the national assembly had attempted in the past to use the Electoral Act to alter the sequence of elections fixed by the INEC and failed.

“Having watched the trend of the debate it is regrettable to note that the parties involved in the dispute have not studied 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,” Falana explained.

According to Falana, 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,” he added.

Falana noted that the national assembly took advantage of the 2010 alteration of the Constitution to attempt to overrule the judgment of the Court of Appeal in the case of the National Assembly v. the President (supra).

“Thus, in the first alteration made to the Constitution, the national assembly amended sections 132(1), 76(1), 178(1), 116(1), 118 and 178 of the Constitution by adding the phrase “in accordance with the Electoral Act”. Although the power of the INEC to “organize, undertake and supervise” the general elections conferred on it by paragraph 15 of part 1 of the third schedule made pursuant to section 153 of the Constitution was left intact, the national assembly members erroneously believed that they had conferred on themselves the power to fix the dates for general elections in Nigeria. Hence, in the 2018 Electoral Bill, the national assembly is alleged to have tampered with the discretion of the INEC to fix the dates for the 2019 general elections,” he said.

Falana added that 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,” he added.

Falana urged INEC not to waste public funds by rushing to the Supreme Court to contest its own constitutional duty to organise, undertake and supervise the 2019 general elections.