A Federal High Court in Abuja has fixed April 25 for judgment in the suit by Accord Party (AP) challenging the legitimacy of the attempt by the National Assembly to reorder the schedule of the 2019 general elections released by the Independent National Electoral Commission (INEC).
Justice Ahmed Mohammed gave the date yesterday after entertaining arguments from parties on whether or not the National Assembly possessed the powers to alter the schedule of elections released by INEC or interfere with the constitutionally guaranteed power of the electoral body to fix dates for,and organise elections.
The National Assembly, represented by Joseph Daudu (SAN), urged the court to decline jurisdiction and dismiss the suit. The plaintiff, represented by Wole Olanipekun (SAN), Attorney General of the Federation (AGF) Abubakar Malami (SAN) and INEC, represented by Femi Falana (SAN), urged the court to grant the plaintiff’s reliefs.
In the suit filed on March 7, AP seeks, among others, a declaration that the amendment to the Electoral Act 2010 (introducing a new Clause 25) just passed by the National Assembly, which prescribes the order in which the general elections should take place, has interfered with the power, right and discretion of INEC generally and, in particular, in respect of the schedule or sequence of the 2019 general elections.
It is also praying for an order setting aside Clause 25 of the Electoral Act (Amendment) Bill, 2018; an order of perpetual injunction restraining the President from assenting to the Bill, and an order restraining the National Assembly from passing into law by a two-thirds majority, or any majority at all, the Bill as it has already been passed.
Olanipekun yesterday argued that the issues his client brought for the court’s determination were not novel as similar issues had been resolved before by courts.
He said: “Years back, the National Assembly passed a Bill, whereby they purportedly repealed the Independent Corrupt Practices and other related offences (ICPC) Act, but Justice Egbo Egbo set aside the Bill and there was no appeal against his decision.”
Olanipekun argued that what the National Assembly sought to do with the Bill, particularly in Section 25, is impossible and inapplicable.
He contended that it was impracticable for the National Assembly to dictate the schedule of elections, to INEC without first altering the electoral body’s power to reschedule elections under Section 26(1) of the law.
Olanipekun argued that it was unlawful for the National Assembly to seek to interfere with the unfettered powers handed INEC by the Constitution – to plan, organise and conduct elections.
Arguing against the National Assembly’s contention that the suit was premature because the process was not yet completed, Olanipekun contended said since the Bill had been passed by both chambers, the process was concluded and could be challenged in court.
Relying on the decision of the Supreme Court in AG, Bendel State vs, AG of the Federation, Olanipekun argued that the legislative function of the National Assembly begins with the introduction of a Bill and ends when the bill is passed.
He said, as against the National Assembly’s position that the legislative function ends after the Bill becomes law, what happens after the Bill is passed, particularly presidential assent, was outside the process of law making by the Legislature.
Olanipekun also faulted the National Assembly’s position, in its preliminary objection, that the court lacked jurisdiction to decide the case because issues raised in the suit are not justiceable and that the plaintiff lacked the requisite locus standi.
He contended that the court, being a superior one, possessed the power to examine the manner the National Assembly was exercising its legislative powers and the power to set aside any law made by the 1st defendant (National Assembly), which breaches the Constitution.
Olanipekun prayed the court to answer the nine questions in the plaintiff’s originating summons in its favour and grant all the 11 reliefs it seeks.
Responding, Daudu argued that the issues raised in the plaintiff’s originating summons were not justiceable because they relate to the internal workings of the National Assembly.
Daudu added: “No matter how it is stretched or construed, Electoral Act Amendment Bill 2018, from the date of filing this originating summons, up till today, remains a Bill.
“It becomes an Act upon the happening of two eventualities: One, where the President, acting under the provision of Section 58(4) of the Constitution, assents to the Bill, it becomes an Act of the National Assembly. And two, where he refuses to assent, under Section 58(5) of the Constitution, the Bill is returned to the National Assembly for the use of their power of veto override.
“Until that point in time, it continues to be a Bill because at that time, there is no possibility that National Assembly will muster the required two/third to override the President’s veto. However, if they are able to muster the requisite number, then it becomes an Act.
“It is only at that stage that the jurisdiction of the court is ignited. That is when Section 1(3) of the Constitution comes into place. At this stage, it is still a Bill. This suit is academic. The process is inchoate.”
Daudu also challenged the plaintiff’s locus standi and argued that no proper plaintiff is in court because AP has not presented its valid registration certificate.
He said should the court agree with the 1st defendant on the issues raised in its preliminary objection, there will be no need going into the merit of the case.
“This is because the basis of the objection is non-justiceability and lack of locus standi,” Daudu said and urged the court to uphold the objection and dismiss the originating summons.
Malami and Falana argued in support of the plaintiff’s case and urged the court to grant all the reliefs sought by AP.
Malami faulted the 1st defendant’s argument that the case cannot properly invoke the court’s jurisdiction.
He argued that SectIon 4(8) of the Constitution is clear on the invocation of the court’s jurisdiction and noted that the operative words in the section are “legislative power”.
Malami argued that it did not require the consumation of both the legislative and executive powers for the court’s jurisdiction to be invoked as being argued by the National Assembly.
He cited Section 58(1) & (3) of the Constitution to explain the meaning of “legislative powers” and added that thinterpretation of legislative powers within the context of the Constitution “is the passage of the Bill by the House of Representatives and the Senate”.
Malami submitted that once a Bill is passed by the National Assembly, the logical conclusion is the legislative power of the National Assembly, as envisaged in Section 4(8) of the Constitution, is concluded, and thereby properly invoking the jurisdiction of this court.
He argued that what the National Assembly sought to do was pass a Bill that will reverse the election time table already passed by INEC, a power, he argued, the Legislature lacked.
Malami added: “Since the time table predates the Bill, the issue is whether it (the Bill) can operate in a reversive manner.
“No Legislature has the power to legislate in a reversive way and manner, by way of reversing things that were constitutionally consumated and concluded by a body clothed with power and authority to so act.
“Consumated act, in this case, relates to the time table already released by INEC for the conduct of 2019 elections in respect of which the 1st defendant seeks to legislate. It is not practicable, because the act that was consumated is sacrosanct, having been clothed with statutory protection. Of particular relevance is Section 4(2)(a) and (b) of Interpretation Act,” Malami said.
Falana argued that it was not at all time a court declines jurisdiction where issues were inchoate.
He cited the case on the creation of Local Governments in Lagos State, which the Suprme Court entertained and made pronouncements even when it held that the process for the creation of Local Government in Lagos was not completed
He also cited 2015 when the Supreme Court intervene on the dispute between the Executive and National Assembly when the President Goodluck Jonathan declined to assent to a Bill to amend the Constitution.
“What was for interpretation then was the Local Govt Law of Lagos State, which is still inchoate till now, But the Supreme Court intervened and held that the NA has not passed the enabling law to bring the Local Govts to life.
“The law has not changed since 2003 in the case of AGF and the NA. In this case, INEC has issued a time table in accordance with the Electoral Act and the Constitution. The 1st defendant is attempting to usurp the powers of INEC, which is not acceptable under the Constitution.
“The 1st respondent has not been given the powers by the Constitution to interfere with the conduct of election in the country.
“What the 1st respondent has done is to amend the Constitution in 2010 to say that those four sections of the Constitutions that gave INEC the powers to conduct election shall now be read subject to an act of the parliament
“That is wrong. The Constitution cannot be read subject to any act of parliament, it is the other way round,” Falana said.