Electoral law: Nigerian Judiciary, Legislature in battle of supremacy *mixed reactions trail landmark decisions KAYODE KETEFE By virtue of section 6 of the 1999 Constitution, the Nigerian Courts are vested with the judicial powers of the Federation. Section 6 (1) provides that "The judicial powers of the Federation shall be vested in the courts to which the section relates, being courts established for the Federation" Subsection 2 further provides thus, "The judicial powers of a State shall be vested in the courts to which the section relates, being courts established subject as provided by this Constitution, for a state". The courts have traditionally been enjoying unfettered exercise of these judicial powers in the process of administration of justice. Furthermore, the courts have jealously guarded these constitutional powers, always holding them to be sacrosanct. Many legal scholars and political scientists have also held that the independence of the judiciary, within the wider template of the principle of separation of powers, is a sine qua non to smooth operation of rule of law. This principle ensures that governmental powers are shared between the different arms of government. Under the 1999 Constitution, executive and legislative powers are bestowed on the executive and legislative arms by sections 4 and 5 respectively, while, as earlier said, section 6 bestows judicial powers on the courts. Article 3 of the United States Constitution for instance makes similar provisions to our own section 6 when it provides, inter alia, that the judicial powers of the United States shall be reposed in an independent judiciary. The judicial powers vested in the Nigerian courts are absolute as the decision of one court can only be revisited by another court in the upper notch of the hierarchy. Nonetheless the wide latitude of these powers were often curtailed during the military periods as the military governments were fond of ousting the jurisdictions of the court to examine the legality of many of their decrees, through the incorporation into such decrees of the infamous "ouster clauses". Be that as it may, Nigerian Court have been courageous enough not to cowed by the military ouster clauses. For example, in the case of Miscellaneous Offences Tribunal v. Okoroafor, Justice Obioma Ogwuegbu, said: "The Courts should not throw in the towel on the mere mention of an ouster provision. The proceedings of the tribunal can be impeached in the High Court of Lagos State as was done in this case, notwithstanding the ouster provisions, where the procedure laid down for the commencement and conclusion of proceedings of the tribunal was not complied with." Ouster clauses are rare phenomenon under the democratic regime. As a matter of fact, Section 4 (8) of the 1999 Constitution provides that the National Assembly or the state House of Assembly shall not oust the jurisdiction of the court. However in the heat of preparation for the April 2011 general election, the National Assembly, while amending the Electoral Act, introduced some clauses which seem to have severely reduced the powers of the court in the nation's electoral jurisprudence. The lawmakers "annul" the powers of the court to declare a candidate with the second highest number of lawful votes a winner in a situation where the actual winner had been found ineligible. The lawmakers further provided, in the said amended Electoral Act, that the court can only, in such situations order a rerun rather than giving an outright victory to the concerned candidate. The rationale behind this legislative intervention, which some people have interpreted as 'whittling down" the powers of the court, is not unconnected with numerous instances in this fourth republic where the courts had categorically ordered that some candidates should be sworn-into offices after the courtss found them to be the authentic winner of the elections Such instances include the judicial enthronement of five governors, Dr. Kayode Fayemi of Ekiti State, Dr Olusegun Mimiko of Ondo State, Mr.Rauf Aregbesola of Osun State Mr. Adams Oshiomhole of Edo and Rt. Hon. Rotimi Amaechi of Rivers State, all of whom were ordered by the court to be sworn-in as governors of their respective states after being found to be the authentic, lawful winners. The case of Rotimi Amaechi was particularly mind-boggling, the Supreme Court found that Mr. Celestine Omehia who had won the election and had already been sworn-in as the Executive Governor of Rivers State was not qualified to contest the election on the grounds that he did not lawfully win the Peoples Democratic Party's Primary. The court further held that Mr. Amaechi was the lawful winner of the primary, the apex court then went ahead to declare Amechi the winner and ordered that he should be sworn-in as governor, even though he did not contest in the governorship election. Consequently, Omehia who had already been sworn-in and had spent some months in office had to vacate the seat. Political pundits believe that the kinds of decisions stated above which projected the courts as "Alpha and Omega" of powers that made legislature to decide to smuggle into the Electoral Act some provisions. These provisions ostensibly meant to curtail the powers of the courts are contained in the section 140 (2) and 141 and section 87 (8) of the Amended Electoral Act. The last mentioned section had not generated as much controversy as the first mentioned two. Section 140 (2) provides "Where an election tribunal or court nullifies an election on the ground that the person who obtained the highest votes at the election was not qualified to contest the election, the election tribunal or court shall not declare the person with the second highest votes as elected, but shall order a fresh election." Section 141 of the Act also provides that: "An election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said elections." It was obvious from the outset that electoral litigants would contest the validity of these sections in court, especially as they seem to interfere with the independence of the Judiciary. In consonance with this expectation, just a few months after the April General elections, two major judicial pronouncements have been made on the legality of the said sections; the judgments were delivered within three weeks of each other. The first judgment was delivered by Justice Okechukwu Okeke of a Federal High Court sitting in Lagos on June 30, 2011. It was a judgment in a suit filed by the Action Congress of Nigeria (ACN) against the National Assembly on the said provisions in the amended Act, The party had, among other things, urged the court to declare that the enactment of section 140(2) of the Electoral Act 2010 as amended as ultra vires the powers of the National Assembly by virtue of sections 1(3), 4(8), 6(1)&(2), 6(6)(a)&(b), 239(1), 246 and 285 of the Constitution The National Assembly, through its lawyer, Sebastine Hon (SAN) prayed the court to dismiss the suit on the ground that the legislature had enacted the said sections, among others in the interest of public. Hon had also queried the locus standi of the ACN to bring the suit. . He had argued that section 4(1) and (2) of the 1999 Constitution and item 2 of the Exclusive Legislative list in the same Constitution granted the National Assembly powers to enact sections 141 and 87(8) of the Electoral Act, he therefore stressed that the said sections could not be said to be against the same constitution Justice Okeke however held that two sections were beyond the powers of the legislature as it constituted an encroachment into the judicial powers. The judge then declared the action of the legislature as "unconstitutional, null, and void." The second of these landmark judgments was delivered on July 21, 2011 by a Federal High Court sitting Abuja. Delivering judgment in a suit instituted by the Labour Party (LP) on the constitutionality of Sections 140 (2) and 141 of the Electoral Act 2010, the presiding judge, Justice Gabriel Kolawole, held that the said sections constitute an affront to the 1999 Constitution and that these should not be allowed to stand. The judge had said, among other things, that "The National Assembly has no competence to enact Sections 140 (2) and 141 of the Electoral Act 2010, because when it does, it delimits the power of the court to adjudicate on disputes between two parties in election petition. Section 140 (2) and 141 derogate the powers enshrined by sections 4 (8) and 6 (10) of the 1999 Constitution. "Once an election tribunal sits over election petition, no legislation can curtail its inherent powers on what to decide. It just does not fit. The grundnorm of the nation is the constitution, which spells powers of the three tiers of government," The above decisions of the courts were expressly predicated on the sanctity of the provisions of section 4 (8) of the 1999 Constitution which provides that "Save as otherwise provided by this Constitution, the exercise of legislative powers by National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established, and accordingly , the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law" Be that as it may, different reactions have trailed this judgment. A number of lawyers gave their views on the implication of these decisions. In his reaction to this judgment, President of the Nigerian Bar Association, Mr. Joseph Bodunrin Daudu SAN, stated that the judgment is without real effect because it has introduced nothing new to electoral jurisprudence in Nigeria. The NBA boss further held that pronouncement did not reinstate the former position of the law which had been repealed. Daudu said "I will not like to comment on the judgment because the decision is still appealable and I would not like to prejudice the matter. "I would only limit my comment to the effect of the judgment. What effect do you think the judgment has? To me it has no real effect because it does not change anything. "The old position of the law has not been reinstated by the judgment and could not have been. Does the judgment mean you can now go ahead to pronounce the next candidate with the highest number of votes the winner of election? "Of course it does not; you cannot go beyond what the legislation says. This because the old law has been repealed by the new legislation and a repealed legislation stands repealed, no more, no less. "Judges cannot make law themselves; their role is limited to interpreting the law. So the position remain the same until the National Assembly amends the law" Chief Joe-Kyari Gadzama (SAN) said, "Justice Kolawole's judgment is not only a long awaited one but a landmark and far reaching. The Legislature traversed beyond its legislative mandate and unconstitutionally usurped extant and time honoured judicial powers. The ruling is a sound one and will aid the growth of our constitutional democracy. Many more provisions of the Electoral Act must be looked into with a view to bringing them out of the bunker to comply with doctrine of separation of powers among the three arms of government." Another prominent lawyer, Chief Adegboyega Awomolo (SAN) said "The judgment shows the independence of the judiciary under our Constitution, and it also demonstrates the workability and efficacy of the Principle of separation of powers, where the Legislature makes laws, the Executive implements the laws, and the Judiciary interprets the laws. The judgement is an affirmation of the supremacy of the Constitution over every arm of government." Mr. Ricky Tarfa (SAN) even lambasted the legislators having enacted the law in the first instance. He said, "There was a lot of misgivings about the legislation before the matter was taken to court. In his own view, a Lagos-based lawyer and human rights activist, Mr. Bamidele Aturu, said he did not agree with the judgment. He said "I am not in support of the judgment. We all stated that the former position where the court may declare somebody who never contested an election may be declared winner of the election is not proper. I don't see it at all as an affront to the powers of the court. The legislature has powers to make all on all important issues, like the electoral system, among others all over the world. "In England, we have what is called parliamentary sovereignty; the elected representatives of the people should have power to make laws on all issues without restrictions. Although in Nigeria's case many of them were not really by the people. But let us assume they were elected, they should have powers to make laws for the purpose of good governance of the country. I don't see anything wrong with disagreeing with wrong with that judgment." Expressing a contrary opinion, a lecturer of at the Faculty of Law at the University of Lagos, Mr. Wahab Shittu, said the judgment represents the correct position of the law and is in tandem with 1999 Constitution. Wahab said "I think the judgment constitutes the correct position of the law. The Judiciary is constitutional empowered to determine and make pronouncement on the issue brought before it and I don't think it is proper for this power to be curtailed by the lawmakers. What the lawmakers have done amounted legislative rascality. "I am in full support of the judgment as it corrects the wrong steps taken by the legislators. For democracy to survive the due process must be preserved, each arm of government must operate only within the powers given it by the constitution" Also voicing his support for the courts judgments, another civil rights lawyer, Mr. Jiti Ogunye, said "Both the judgements of justice Okeke in Lagos and that of Justice Gabriel Kolawole in Abuja addressed a very important issue and we are in support of their conclusions. The judgments conform to the constitution and the concept of the rule of law. Our court have always jealously guarded their jurisdiction and resisted all forms of encroachment, legislative or otherwise. "Under a good democracy, the powers of courts are not normally curtailed except within very narrow permissible limits. Thus,the legislature should not be dictating to the court what to do neither must it teach the courts how to exercise their judicial powers. The judgments are redress of the legislative errors" |
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