An injunction given on Monday by a Federal High Court in Abuja restraining the National Assembly from re-amending Section 84(12) of the Electoral Act failed yesterday to stop legislative actions on the contentious clause.
The Senate rejected the order given by Justice Inyang Ekwo and began work on President Muhammadu Buhari’s requests to reconsider the section.
The Red Chamber passed the Bill titled: “Electoral Act 2022 (Amendment) Bill, 2022.” for first reading.
In the Lower Chamber, Speaker Femi Gbajabiamila, who said he was conscious of the court order, read the communication from the President to his colleagues at plenary.
Gbajabiamila said it was his obligation to read the memo from the President, adding that the intent of the provision may have been misunderstood by many.
In his remarks after the Bill was passed for first reading Senate President Ahmad Lawan drew the attention of his colleagues to the order of court on the matter.
He, however, insisted that the judiciary cannot stop the legislature from performing its constitutionally-assigned duties just like the National Assembly cannot interfere in judicial matters.
According to Lawan, obeying the order would lead to anarchy in the polity.
Justice Ekwo specifically barred all the defendants in the suit marked FHC/ABJ/CS/247/2022 from removing Section 84 (12) of the Electoral Act or preventing it from being implemented for the purpose of the 2023 general elections.
The defendants in the suit are: Attorney-General of the Federation and Minister of Justice, Senate President, House of Representatives Speaker, Clerk to the National Assembly, Senate Leader, House of Representatives Leader and the Independent National Electoral Commission (INEC).
Others are: Deputy Senate President, House of Representatives Deputy Speaker,Deputy Senate Leader and House of Representatives Deputy Leader.
Before signing the reworked Electoral Act (Amendment) Bill, 2022 into law, President Buhari requested the National Assembly to expunge Section 84 (12) of the Act, which he argued would disenfranchise serving political appointees.
In a February 28 letter President Buhari requested the National Assembly to amend the Electoral Act.
Specifically, the section, made it mandatory for political office holders to resign from office before they could vie for any elective position.
It reads: “No political appointee at any level shall be a voting delegate or be voted for at the convention or congress of any political party for the purpose of the nomination of candidates for any election.”
The Peoples Democratic Party (PDP), in the substantive suit it filed by its team of lawyers, led by Chief Ogwu Onoja (SAN), challenged the legality or otherwise of the National Assembly tinkering with the Electoral Act after it had been signed into law.
The court maintained that the Electoral Act, having become a valid law could not be altered without following the due process of law.
Reacting to the court verdict, Lawan said violated the provisions of the 1999 Constitution (as amended) on separation of powers.
He said: “I find it necessary to talk to this at this point, because our governance system is based on the Presidential system of government where there is clear cut separation and exercise of powers.
“The judiciary, under no circumstance cannot stop the National Assembly from performing its legislative duties. We know what our due processes are, just like we wouldn’t venture into what the Judiciary does, it should also understand that we have our processes.
“If the President writes to the National Assembly to request for an amendment, that is within his competence, and it is for the National Assembly to decide whether it agrees with the request of Mr. President or not.
“But to say that we cannot consider it is to ask for what is not there to be given. I believe that Members of this National Assembly know their work and will do what is right.
“This is due process, we are not doing anything outside of the law, whether it is Mr. President or any Nigerian who feels very strongly about an amendment, this National Assembly is ready to take in and consider.
“It is within our exclusive right to consider whatever request we receive from Nigerians, whether through the Executive arm of government or through our colleagues – private members’ bill.”
Benue Northeast Senator Gabriel Suswam (PDP), rising under a point of order, faulted the ruling of the Federal Court.
He said: “I agree with what you have said, the court cannot stop us from making laws. The problem with the letter sent to us by the President was that there is a part of it that interpreted the law we made.
“I think that is the only part that the court can act on, because he (President Buhari) said that the law we (National Assembly) made is ultra vires of the Constitution, which is not his responsibility. And, I think, to that extent, the court can comment on that and not on the fact that we are making laws.”
Senator Ike Ekweremadu, who cited Order 52(5) of the Senate Standing Order, called on the Senate to abide by the court ruling.
Ekweremadu said: “When we were waiting for the President to assent to the Electoral Act, some of us made a suggestion we believed would help, namely that the President would sign and then we would commit ourselves to amending that section.
“Mr. President, I also offered to help in redrafting it, now we have a situation where they’ve told us there’s a judicial restriction on us to do that.”
Though Ekweremadu said he agreed with Lawan on the matter, he said the upper chamber has a responsibility to respect the judicial pronouncement.
Ekweremadu, who advised the National Assembly to first discharge the court order before commencing amendment of the Bill, laced his argument with Order 52(5) of the Senate Standing Orders.
He said: “Reference shall not be made to any matter on which a judicial decision was pending in such a way as might in the opinion of the President of the Senate prejudice the interest of the parties thereto.
“I think the argument you’ve raised is valid, but this point is what we have to present in court to discharge that order.
“What we should do is to brief our lawyers to go and discharge the order, instead of sitting here and disobeying court order, it is not good for us and our system, that is calling for anarchy.”
Also quoting the same Section 52(5) of the Senate Standing Rules, Lawan said: “My opinion about anarchy is when either arm of government decides to go into the exclusive preserve of the other.
“If the judiciary wants to come into the legislature to decide when we sit and when we don’t, then that’s anarchy.
“If the judiciary would simply say we are not to consider this and that, and we obey this kind of rulings, that is anarchy, because it is emasculating the legislature and that is not supposed to be.
“We will continue with what we are supposed to do because that is our calling. We are just advising that the judiciary should please help us develop this democracy, because this arm of government is the least developed and if we allow this kind of rulings, we may end up going back 23 years ago.”
The Green Chamber, which referred the letter to the appropriate House Committee, said would wait for the judicial process to be vacated or dealt with before it will act on the letter as it was a respecter of the rule of law.
Raising a point of order, Herman Hembe (APC, Benue) drew the Speaker to an existing Court Order restraining them from amending the Act.
Responding, Gbajabiamila said the import of the controversial Section is being misunderstood, adding that the President’s letter will be sent to the appropriate committee to do due diligence on it.
On his obligation to read the President’s letter, the Speaker said: “I’m aware of the court process that was served on us, I’m aware of the injunction but I’m still obligated to read the President’s communication.”
House spokesman Benjamin Kalu confirmed to reporters that the House will respect the position of the court until the injunction is vacated.
He said: “It is our standard practice that we don’t extend our parameters to the scope of the judiciary. The principle of separation of power and its doctrine specify the scope of operation. When any issue is before the court, we don’t interfere.”
