Raging battle over 2018 Electoral Act

The presidency and the National Assembly are at loggerheads over the Electoral Act Amendment Bill 2018 passed by both chambers of the National Assembly. Where is the ‘war’ headed and who blinks at last? These are the questions on the lips of Nigerians immediately the president communicated his decision to veto the bill. Throughout last week, the battle festered and right now, new dimensions are being introduced. Group Politics Editor, TAIWO ADISA, who has followed the developments, reports.

AS largely expected, President Muhammadu Buhari, last Tuesday, vetoed the Electoral Act Amendment Bill 2018 transmitted to him two weeks earlier by the National Assembly. The bill, which has come to be known

as the election re-ordering bill, had caught the eyes of political actors and even political watchers since January when the House adopted the amendment to Section 25(1) of the Electoral Act 2010 to re-order the sequence of elections.

Several commentators, including legal minds and political stakeholders, jumped into the fray as soon as the House of Representatives adopted the amendment to Section 25(1) of the Electoral Act.

Many were of the view that the president should reject the amendment, which they believed was an infringement on the powers of the Independent National Electoral Commission (INEC), while some others believed that the House was on the right path.

Former chairman of INEC, Professor Attahiru Jega, was one of those who voiced against the House, insisting that the powers of INEC to fix things using its discretion should not be tampered with. When the Senate concurred with the House on that amendment, it became glaring that the two arms of government were heading for a collision. The commotion was, however, quick in surfacing. Right inside the chamber of the Senate, the cracks appeared as 10 lawmakers walked out in protest the day the amendment was ratified. The lawmakers, led by Senator Ovie Omo-Agege and Abdullahi Adamu, criticised their colleagues for passing the amendment in a hurry. They had tried unsuccessfully to thwart the passage of the conference committee report in the chamber, as they pushed for a further review of the report.

But Senate President Bukola Saraki, knowing that the target of the dissenting senators was to delay the passage of the conference report, overruled all the points of order raised in the process. The bill was adopted as ratified by the conference committee. That set the stage for the transmission of the bill to the president, who had 30 days from the day he got the bill to indicate his assent or otherwise.

The commotion already in place made it predictable that Buhari would not sign the bill into law. For instance, Senator Adamu and members of his class of 10, who are now the unofficial opposition figures to the Saraki-led Senate, had submitted that the bill was targeted at the president and aimed at ensuring his defeat in the 2019 election.

So, when the letter from the president was announced on Tuesday March 13, there were no surprises. In rejecting the bill, Buhari said that the decision to change the order of elections may infringe upon the powers of the INEC as guaranteed by the 1999 Constitution as amended.

The letter addressed to the two chambers of the Assembly and entitled presidential decision to withhold assent to the Electoral Act Amendment Bill 2018” reads: “Pursuant to Section 58(4) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), I hereby convey to the Senate, my decision, on 3rd March 2018, to decline Presidential Assent to the Electoral Amendment Bill 2018 recently passed by the National Assembly.

“Some of my reasons include the following: A.) The amendment to the sequence of elections in Section 25 of the principal act, may infringe upon the constitutionally guaranteed discretion of the Independent National Electoral Commission (INEC) to organise, undertake and supervise elections provided in Section 15(A) of the third statue to the Constitution; B.) The amend to Section 138 of the principal act to delete two crucial grounds upon which an election may be challenged by candidates, unduly limits the rights of candidates in elections to a free and fair electoral review process; C.) The amendment to Section 152 Subsection 325 of the Principal Act may raise Constitutional issues over the competence of the National Assembly to legislate over local government elections. Please accept Distinguished Senators, the assurances of my highest consideration.”

As soon as the letter arrived at the National Assembly, the lawmakers set to work.  The senators held a closed session just before the day’s sitting to test the waters, as a source put it. The preponderance of opinions at that sitting was in favour of the override of the veto, it was learnt. Sources also said that the full details of the plan to override the veto could not be discussed at the sitting because all senators were present. Shortly afterwards, the core loyalists of the Senate President, who grouped under the aegis of Like Minds Senators (LMS), started discussions on the way forward. It was learnt that the group secured the backing of the Senate Caucus of the Peoples Democratic Party (PDP), whose spokesman, Senator Enyinnaya Abaribe told Sunday Tribune that the Senate “plans to override the veto.”

He said: “The Senate will do the needful. We believe that what we have done is in the best interest of the country.”

According to him, the lawmakers believed that what was done with the electoral act was perfectly in the interest of Nigeria and that it was not targeted at anyone. He said that thinking dominated the meetings that took place afterwards. A source said initially that the Senators had secured 65 votes as at Tuesday. By Thursday, the figure had risen beyond 75, when 73 were needed to secure the two-thirds majority. The figure is bound to grow higher, a senator said on Friday.

As of Tuesday, the President of the Senate, Dr. Saraki was said to have only broached the idea of the planned override of the veto at the closed session, with the lawmakers said to have agreed to get further legal insights from the Legal Department of the National Assembly. Late on Thursday, the legal opinion was ready and it was a damning riposte on Buhari’s submissions, Sunday Tribune learnt.

The Legal Department of the National Assembly rejected the three grounds upon which President Buhari rested his veto, declaring that the Constitution of Nigeria 1999 had been amended in 2010 to ensure that INEC shall conduct elections in accordance with the Constitution and the Electoral Act.

The legal advice that faulted Buhari’s veto

The legal advice read: “The president of the Federal Republic of Nigeria vetoed the 2018 Amendment of the Electoral Act of 2010 passed by the National Assembly in the exercise of his constitutional powers under Section 58(4oi) Constitution of the Federal Republic of Nigeria as amended following reasons.

Each of the legal and constitutional reasons advanced by the president as a basis for the veto were examined in details below.

1.) the president claims that the amendment introducing a specific sequence for elections under Section 25 of the Principal Act 2010 infringed the discretion of the Independent National Electoral Commission to, “organise, undertake and supervise elections,” the legal advice maintained that the argument was flawed, noting that the correct legal position was that by the Constitution of the Federal Republic of Nigeria 1999 First Alteration Act 2010, Act No. 1, specifically, Section 5 provides that Section 76 of the Principal Act is altered thus: “(a) Subsection (1) in line 2, by inserting immediately after the word ‘commission’ ’the words’ ’in accordance with the Electoral Act. ”

“From the above amendment, it is crystal clear that the power to regulate the principal elements of all Federal Electoral process were expressed by the above amendment, removed from the Independent National Electoral Commission land vested in the Assembly (N.A) which has the power to make laws for peace, order and good government” of the Federal Republic of Nigeria and any part thereof.

Furthermore, the phrases “organise, undertake & supervise” elections under section 15(a) of the 3” Schedule to the Constitution of the Federal Republic of Nigeria  according to the President, allegedly infringed the discretion guaranteed” to lNEC by Section 25 of the of the Principal Act.

“2.) The argument of the president that the sequencing of the elections under section 25 infringed the discretion of INEC without expressly pointing out what specific aspects or ways and manner cannot be a basis for legal or constitutional argument or decision. With due respect, the opinion expressed is too general to establish a basis for the exercise of a legal or constitutional power more so because “discretion” is a principle governed by the rules of Administrative Law and not that of Constitutional Law which the President claimed to have anchored his arguments.

“3.) Thirdly the terms “organise, undertake and supervise” may have conferred a wide discretion on lNEC in matters of all logistics in the preparation and conduct of elections, the issue of discretion only comes to fore in the actual details of the preparation, organising and conducting elections. It is respectfully submitted that the sequencing of the elections in a Bill as to which was scheduled as first or last in the conduct does not in any way hamper or affect the discretion and capacity of INEC to organise, undertake and conduct these elections into various constitutional offices provided.

“The new subsection (3) introduced into Section 138 of the Electoral Act, which the president argued repealed two crucial grounds upon which elections could be challenged is not entirely correct and the view could be misplaced for the following reason: “a. The new Subsection (3) to section 138 actually clarifies the ambiguity contained in subsection 1 of the Principal Act and reinforces the constitutional standards specified in Sections 65, 106, 131 and 177 of the Constitution of the Federal Republic of Nigeria 1999. In addition, it further provides that no person shall be qualified to contest elections in breach c any of the ‘Sections 66, 107, 137 or 182 of the Constitution of the Federal Republic of Nigeria as amended.

“The amendment to Section 152 (3)-(5), which collectively imposed an obligation on the State independent Electoral Commissions to apply the standard of “free, fair and credible elections in the conduct of Local Government elections” is within the competence of the National Assembly to make laws in respect of the procedure regulating elections into the Local Government Councils in accordance with item 11 (Eleven) of the Concurrent Legislative List of the 1999 Constitution as amended.

“What specific aspects or ways and manner cannot be a basis for legal or constitutional argument or decision? With due respect, the opinion expressed is too general to establish a basis for the exercise of a legal or constitutional power more so because “discretion” is a principle government by the rules of Administrative Law and not that of Constitutional Law which the President  Claimed to have anchored his arguments.

“It is, therefore, not entirely correct, with all due respect to Mr. President, to argue that the amendment may raise constitutional issues over the competence of the National Assembly to legislate on Local Government elections. The Supreme Court of Nigeria has decided on this issue in the famous case of Attorney General of Abia State & Ors v Attorney General of the Federation & Ors,” the legal advice read.

Armed with the legal advice, the National Assembly appears set to override the Presidential veto, the second time in this Fourth Republic. In 2000, former President Olusegun Obasanjo suffered the first of such defeat when the National Assembly overturned his veto of the NDDC bill. The bill eventually became law.

It was gathered that the leadership of the National Assembly have become emboldened that they were on the right path, following the interpretations by the legal minds in the legislature. The question now is whether the lawmakers can sail through with the plan. They would be guided in their action by Section 58 (4 & 5) of the 1999 Constitution, which provide the procedures by which the National Assembly may override the veto where a president withholds assent to a bill passed by both chambers.

Section 58 (4) reads: “Where a bill is presented to the President for assent, he shall within thirty days thereof signify that he assents or that he withholds assent.

Section 58 (5) also reads: “Where the President withholds his assent and the bill is again passed by each House by two-thirds majority, the bill shall become law and the assent of the president shall not be required.”

APC, govs, ministers move against Senators, Reps

At the weekend, at least four groups have emerged in the bid to stop the raging fire. The calculation, according to sources, is that if the bill sails though, the president would have lost huge moral and political face in the polity, something which could prove disastrous for his 2019 second term bid.

If the lawmakers lose out, it is also being interpreted to mean a huge loss for the Senate President and the Speaker, Yakubu Dogara, who, sources said, would then be at the mercy of his governor, who it is believed, would readily corner Dogara’s seat for another member of the party.

It was gathered that the game of numbers has been intense, with the Presidency’s coordinators said to be a minister from the South-South, a governor from the North-West and other governors and some senators. A North-Central senator was said to have offered his property outside the Federal Capital as a meeting venue.

Besides the honorarium which sources said is being made available for attendance at the meetings, those who would stand against the bill from scaling the two-thirds huddle were also being promised return tickets to the Senate and the House of Representatives, sources said. It was also gathered that those opposed to the line of the ruling APC and the president were being told to forget 2019 return tickets to the chambers.

It was learnt that the vote on the bill was being planned for next week until an injunction from a Federal High Court on Wednesday, which restrained the Assembly from going ahead with the bill.

With the resolve of the Senate to write the Chief Justice of the Federation (CJN) and demand adherence to the principles of Separation of Powers, the lawmakers could get back to business as fast as they can.

A source close to the ruling APC, described the situation thus: “Just like it happened in January, the bid to tackle the Senate and the House has been started. The move this time is to stall the two chambers from securing the two-thirds majority required for the National Assembly to override the veto. A minister is the arrowhead of the four groups that came together for this project. He is joined by two serving governors and some senators as well as some ministers on the fringes.

“They are painting the agenda as that of the APC and they are warning that the party would deny those who support the bill a return ticket to the National Assembly in 2019.  But we have since discovered that with secret ballot we can vote without being identified.”

For now, it appears there is no retreat and no surrender on the path of the lawmakers in the bid to override the president’s veto of the Electoral Act amendment bill, erroneously called order of elections bill. But the following week will be crucial to the whole show.