National Assembly Admitts Erring In Amending The Electoral Act.

NASS

The National Assembly on Wednesday in Lagos admitted error in its last amendment to the Electoral Act where it restrained either the court or election tribunal from declaring an individual winner of a disputed election. The National Assembly admitted the error before a federal High Court in Lagos during the hearing of a suit by the Action Congress of Nigeria (ACN), originally challenging the provisions of Sections 87 (8) 140 (2) and 141 of the Electoral Act 2010 (as amended). Section 140(2) of the E.A. 2010 provides: “Where an electoral 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 or that the election was marred by substantial irregularities or non compliance with the provisions of this Act, the election tribunal court shall not declare the person with the second highest votes or any person as elected, but shall order a fresh election.”
It said the provision contained in section 140(8) of the Electoral Act 2010 (as amended) was at variance with the provisions of the Constitution in relation to the powers of the court or tribunal as contained in sections 4 (8), 6 (1) and (2), 6 (6) (a) and (b), 239 (1), 246 and 285. Its lawyer, Mr. Sebatine Hon (SAN), in agreeing with the plaintiff, conceded that the National Assembly was in error when, in enacting Section 140 (2) which purported to divest the power of the court or tribunal to make certain necessary orders in deserving circumstances. He declared the provision unconstitutional. He argued in his written submission, that the constitutional power granted the National Assembly to enact Electoral Law or Act is distinguishable from its competence to purport to oust the judicial powers vested in the court and election tribunals by the Constitution. “It is in that light that I must concede, as a senior counsel, that I find it extremely difficult to defend the provisions of section 140 (2) of the Electoral Act. I fail to see why the National Assembly can purport to divest the tribunals or courts of jurisdiction to make certain necessary orders in deserving circumstances, but will go ahead to vest the same tribunals and courts with the same jurisdiction under section 140(3) of the same Act, “ he said. The ACN equally withdrew its challenge of section 141 of the Electoral Act. It conceded to the National Assembly’s argument that it was in order in enacting the provision contained in the said section of the Act. Plaintiff’s lawyer, Mrs. Victoria Alonge told the court that her client has conceded to the defendant’s argument that the provision of section 141 of the Electoral Act was validly made and should be retained. She urged the court to declare as void and unconstitutional, section 140 (2) which the National Assembly has admitted was wrongly made. Mrs. Alonge also urged the court to void the provision of section 87 (8) on the ground that it offends the provision of section 40 of the Constitution. She added that it is unconstitutional because it purportedly limits the exercise of a right under Chapter 4 of the Constitution. She stated in her brief of argument that the prohibition by section 87 (8) of members of political parties who hold public appointment, from exercising their associational rights in the party nomination process derogates from the constitution. In response to the defendant’s argument that the plaintiff lacked the locus standing to file the case,
Mrs. Alonge, relying on the Supreme Court’s decision the case of Fawehinmi and the President, Federal Republic of Nigeria (2007) 14 NWLR Part 1054 page 275 at 303, 334-335, said issue of locus does not apply when the issue in contention is constitutional. While arguing his counter affidavit, Hon challenged the plaintiff’s locus standing to initiate the suit and urged the court to hold that the provisions of Section 87(8) and 141 of the Electoral Act 2010 (as amended) are regular and constitutional. The presiding judge, Justice Okechukwu Oke after listening to parties adopt their written submissions, fixed June 30 for judgement.