Buhari Saraki

Court Voids Reordering of Elections Sequence by National Assembly

A Federal High Court in Abuja has voided a new provision in the Electoral Act (Amendment) Bill, 2018.

The bill was recently passed by the National Assembly to reverse the sequence of the conduct of the 2019 elections earlier announced by the Independent National Electoral Commission (INEC).

In a judgment on yesterday, Justice Ahmed Mohammed held that the powers to organise, conduct and fix dates for elections resides only with INEC by virtue of the provisions of the Constitution.

Justice Mohammed said the passage of the bill, seeking to alter the election time-table was a breach of the constitution and the doctrine of separation of powers.

The judgement was on the suit by the Accord Party (AP), challenging the legitimacy of the Electoral Act (Amendment) Bill, 2018, to which President Muhammadu Buhari declined to assent.

The judge resolved the sole issue he identified for determination in favour of the plaintiff.

The AP approached the court to determine: “Whether the 1st defendant was justified in law in passing the Electoral Act (Amendment) Bill 2018, which Bill sought to reverse the sequence or time table of the 2019 general elections already issued and published by the 3rd defendant.”

The judge agreed with the plaintiff’s lawyer, Wole Olanipekun (SAN), that it is the sole responsibility of the 3rd defendant to conduct elections into the various offices mentioned above.

He added that in doing so, the 3rd defendant has the power of determining the sequence of the elections including fixing date for same.

The judge said: “I am left with no doubt that, in passing the Electoral Act (Amendment) Bill 2018, the 1st defendant was in clear breach of the provision of Paragraph 15(a) of the 3rd Schedule to the 1999 Constitution (as amended).

“In this regard, I find comfort in the interpretation of Paragraph 15(a) of the 3rd Schedule to the Constitution given in the case of NDP vs. INEC (supra) to the effect that INEC, the 3rd defendant in this case, has the constitutional responsibility of organising and conducting an election, and to that effect, it can issue time table and it can also decide when election will hold.

“Now, since the 3rd defendant has already fixed the dates for the 2019 elections, it is the only body that can change the dates.

“The attempt made by the 1st defendant in passing exhibit 1 (the Electoral Act Amendment Bill 2018) after the 3rd defendant has issued Exhibit 2 (the time table earlier released by INEC for the 2019 elections) in clear and obvious breach of Paragraph 15(a) of the 3rd Schedule to the Constitution of the Federal Republic of Nigeria (as amended).

“I find the decision of the Court of Appeal in Musa vs. INEC (2002) 11 NWLR Part 778 page 223 and 296 paragraph C.

“Flowing from the above pronouncement, the power given to 3rd defendant in Paragraph 15(a) of the 3rd Schedule to the Constitution to organise and conduct. Elections in Nigeria, including fixing dates for such elections cannot be taken away by amendment purported to be done by the 1st defendant in the Electoral Act Amendment Bill 2018.”

Justice Mohammed said his court has the power to set aside or nullify any Act or Bill of the 1st defendant that contravene the provision of Constitution.

He noted that as at when the National Assembly purportedly passed the Electoral Act (Amendment) Bill 2018, INEC had issued and published the time table and schedule of activities for the 2019 elections.

The judge explained: “In issuing the time table, the 3rd defendant was carrying out an executed function. By trying to stop or reverse the decision of the 3rd defendant, the 1rts defendant was clearly in breach of the principle of separation of powers embodied in sections 4, 5 and 6 of the Constitution

“Furthermore, the 1st defendant’s conduct, being in breach of Section 1(3) of the 1999 Constitution, it follows therefore that Section 25 of the 2l electoral Act Amendment Bill 2018 which is the section that contravened the Constitution is hereby declared a nullity.”

Justice Mohammed answered all the questions raised the suit for determination in favour of the plaintiff and granted all the reliefs by the sought plaintiff, except 11(1) which sought to restrain President Muhammadu Buhari from asserting to the Bill.

The judge noted that granting such prayer was no longer necessary since the President has already declined signing the Bill.

“I hereby resolve all the questions formulated in the originating summons in favour of the plaintiff. Consequently, I hereby grant reliefs 1 to 10 and 11(2 of the plaintiff’s originating summons,” the judge said.

Before determining the main suit, the judge earlier dismissed the preliminary objection filed by the National Assembly (1st defendant) in which they argued among others that the suit was not justiciable, that the plaintiff were without the requisite locus standi and that the suit was academic.

Justice Mohammed disagreed with the 1st defendant on all the grounds raised in the preliminary objection.



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