Lessons from Electoral Amendment Act 2022, by lawyer

By Onyebuchi Sampson

The signing of the new Electoral Act Amendment Bill 2021 into law by President Muhammadu Buhari, might have brought relief to many Nigerians, but some legal minds believed that the event had also exposed lapses in the nation’s constitutional democratic principle.

In the ceremony, held at the Council Chambers of the State House, the President had urged the National Assembly to give speedy attention to amending 84 (12), which, he said, contravenes the rights of political office holders to vote or be voted for in political party conventions and congresses.

He said: “Section 84 (12) constitutes a disenfranchisement of serving political office holders from voting or being voted for at Conventions or Congresses of any political party, for the purpose of the nomination of candidates for any election in cases, where it holds earlier than 30 days to the National Election.

“The practical application of section 84 (12) of the Electoral Bill, 2022 will, if assented to, by operation of law, subject serving political office holders to inhibitions and restrictions referred to under Section 40 and 42 of the 1999 Constitution as amended.

“It is imperative to note that the only constitutional expectation placed on serving political office holders that qualify, by extension as public officers within the context of the constitution is resignation, withdrawal or retirement at least 30 days before the date of the election.

“Hence, it will be stretching things beyond the constitutional limit to import extraneous restrictions into the constitution on account of practical application of Section 84 (12) of the bill where political parties’ conventions and congresses were to hold earlier than 30 days to the election.”

But a legal practitioner and former president of the Committee for the Defence of Human Rights (CDHR), Malachy Ugwummadu, is concerned over the pressure and energy dissipated by civil society actors and Nigerians, before the President assented to the bill, saying it was not fair enough.

He said: “I don’t think the pressure is needed, because we don’t have the luxury of the time, which they think we have as well as the implications of that delay.

“I am talking of all the energy that went into the campaign and pressure and even the chaos, and outright demonstrations by Civil Societies to have the President sign the bill into law. That for me is not healthy and not necessary.

“The President, in particular, should be ashamed of that kind of development before he signs at all. It is either he signs or he is not signing.

“The fact that Nigerians have to dissipate the kind of energy and the time and resources, which they wasted to get Mr President to appreciate the importance of signing that bill into law in good time was very telling for me.

“For those, who are jumping up and down in celebration, the fact is that it is almost like providing social services which you are elected to do because Nigerians are completely dehumanised and denied of what they are entitled to, they see it as a favour, mere tokenism.

“Having said that, coming to the meat of what has happened, it is to say that you could see that INEC has run into an additional responsibility of adjusting the timetable for election, essentially because the President did not quite understand that, or perhaps does not quite take seriously the implication of this timeline to the execution of the function of his office.

“Again, this points to the quality and content of the advice, he gets. He probably does not know or does not take it seriously, perhaps not fully aware of the implications.

“I have just pointed out that to give one practical implication of delayed assent to bills like this. It has a ripple effect. Supposing that sensitive electoral materials have been procured and customised, the same thing will happen, leading to continued wastage of resources in the way and manner that we have done it in the past.”

As to the concerns raised by the President, the civil rights lawyer said, if the President wasted 25 days, in coming up with his observation in respect to a bill, which he has a duty to accent to within a month of submission to his office, he has shot himself in the legs.

According to him, what Mr President would have done, if he acted timeously, considering again that this is a bill, which has come to him not once, which has enjoyed and generated an enormous discussion, what his handlers should have done, is to use five days at most to point out what he is now pointing out at the eve of the time he has to accent and send it back to the National Assembly.

Ugwummadu noted that it is most likely that the National Assembly as presently constituted and disposed, would have effected that amendment and turned it back to him so that there would be no window or room for further amendment.

He said: “Now, you could see that with the time wasted, he has lost that window of opportunity. More importantly, is the fact that Mr President seemed to be misconstruing his powers, let me be charitable to him to say that, what he is saying is more advisory and I don’t think that the entire crowd as you have in the National Assembly today, are to be schooled about their responsibility.

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“The point is that the President should react bearing in mind that there is separation of power, as a crucial mechanism for sustaining constitutional democracy. When you begin to make comments suggestive of the fact that you don’t know the limit of your powers, it becomes a travesty of constitutional democracy. How do you put it that when the law is made by the National Assembly, you have a responsibility to assent to it or do the best you can, given the cooperation that is expected on the two arms of government, you make your own input and sign.

“It is not to dictate to them what to do, it is not impossible that they didn’t see that, it is only in their wisdom that they have presented before you what they feel should be the law of the country, your responsibility is to execute the law.

“That is why you are the head of the executive. You cannot be the head of executive and dictate what should be done in the National Assembly, that is the implication of the Supreme Court judgment recently, with respect to Executive Order 10, Executive Order 10 was borne out of the obtrusive desire of Mr President to accord financial fiscal independence to the judiciary, but the Supreme Court said no since we are practising constitutional democracy, you cannot in your Olympia height in Abuja, which is the centre and is dictating at the subnational levels. These are the salient ingredients of Federation, which he has refused to internalise and have given us a lot of challenges.”

The human rights lawyer said he just had the privilege of presenting a paper to the presidential advisory committee on anti-corruption, and it was to do with the appointment of judges.

“I pointed out how the National Judicial Commission is still meddling into appointment of judges at the state courts. That is the crisis we have with Justice Akon Ikpeme in Cross Rivers State, that is the crisis we have with Justice Peter Agumagu in Rivers and the same in Abia.

“I took time to look at the 1979 Constitution, in particular, otherwise the Independent Constitution, the Republican Constitution, you will see that the Federal Judicial Service Commission has no business whatsoever in the appointment of judges at state level, so, if we have achieved it 30 years ago, are we moving forward or backward?

“I come back finally to the point that it is good that least the President has expressed his view, but his view is like the view of any other Nigerian, it carries weight because he is the president, however, the leadership of the National Assembly must creatively find a way even, if you are poised to collaborate, even if you are determined to engender harmonious coexistence, there must be a way that you must seek also to protect the institution of the legislature.

“The jurisprudential essence, even from the point of view of political scientists, of the National Assembly, is to check the excesses of the executive.

“So, when you now come almost always, you have not even proposed, particularly Dr Lawan, who is the Senate President, came out to say, they should quickly bring it so that they should pass it. If we are doing that at the national level. How are the speakers going to lead the State Houses of Assembly to check the excesses of the governors, which is even worse than what is happening at the national level?

“It is good news that at least we have serious reforms as captured in the 2022 Electoral Act. Some of the innovations and creativity as introduced by the legislators and as canvassed by the election monitoring body as well as the active participation of the civil society in the Electoral Act 2021. It is hoped that with those innovations and improvements, we should be at par in certain comfort zones in midwifing a credible election in the 2023 general election.”

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