By
J. M. Jonathan Esq.
Introduction
The responsibility of conducting elections into the office of the President and Vice-President of Nigeria, Governor and Deputy Governor of a state, National Assembly of Nigeria and any other office to which a person may be elected under the constitution is vested in the Independent National Electoral Commission (INEC). This is as stipulated in the 1999 Constitution of the Federal Republic of Nigeria, as amended and the extant Electoral Act. The power of the Commission to conduct these elections extends to fixing dates for the elections as well as determining the order in which the elections are to be conducted.
On the other hand, the National Assembly in section 4 of the constitution is vested with the power to legislate for the peace, order and good governance of the Federation or any part thereof and for the purpose of specificity, the Constitution clearly spells out in the Exclusive Legislative list of Part I of the Second Schedule to the 1999 constitution, the legislative province of the National Assembly.
This Paper Seeks To Examine:
the powers of the National Assembly and the extent to which the power can be exercised;
the power of the Independent National Electoral Commission as conferred on it by the Electoral Act and the Constitution of the Federal Republic of Nigeria;
the effect of Section 25(1) of the Electoral Act (Amendment) Bill on the 2019 general election calendar released by the INEC recently.
The Power of the National Assembly and the Extent to Which the Power Can be Exercised
The Constitution of the Federal Republic of Nigeria confers exclusive powers on the National Assembly to legislate for the federation or any part thereof. The legislative powers of the National Assembly is vividly captured in section 4 and the Exclusive and Concurrent Legislative lists set out in Part I and II of the Second Schedule to the 1999 Constitution. It therefore means that the National Assembly has been given the right to legislate on all matters included in the Exclusive Legislative list to the exclusion of the states Houses of Assembly. However, the constitution warns that the National Assembly must exercise its powers for purpose of attaining the peace, order and good governance of the Federation.
Item 22 of the Exclusive Legislative list specifically provides that the National Assembly shall have the power to make laws for “Elections to the offices of President and Vice-president or Governor and Deputy Governor and any other office to which a person may be elected under the Constitution”. The constitution however did not stipulate the order in which elections into the various offices are to be conducted unlike the provisions of section 25(1) of the Electoral Act 2010 as amended. Under that provision, the National Assembly may enact laws to regulate any election process and can further be detailed in the law as to what INEC needs to comply with at the commencement of the law since it is not its constitutional duty to conduct and supervise election but to legislate thereon. The above provision has given the National Assembly omnibus power on the conduct of elections in Nigeria which defies any extant law provided it is in exercise of its constitutional responsibility. The fact that INEC is acting within the parameters of the law does not in any way deter the National Assembly from carrying out its own constitutional functions. Even though sections 76, 116, 132 and 178 have given outright power to INEC to ensure elections to each of the offices mentioned therein, the National Assembly inclusive be held on a date appointed by it, this is not a substitute to the power of the legislature rather an extension of the power of the National Assembly in that the commission is only executing what is provided to it by the legislature in its Act. It therefore means that the National Assembly can alter, amend or repeal the provisions of the Electoral Act through its legislative processes, thereby determining the powers of the Commission and the scope of its operations. However, the National Assembly while discharging its constitutional responsibility must do so with caution so as not to affect the independence of the Commission.
The Power of the Independent National Electoral Commission as Conferred By the Electoral Act and the Constitution
J. M. Jonathan Esq.
Introduction
The responsibility of conducting elections into the office of the President and Vice-President of Nigeria, Governor and Deputy Governor of a state, National Assembly of Nigeria and any other office to which a person may be elected under the constitution is vested in the Independent National Electoral Commission (INEC). This is as stipulated in the 1999 Constitution of the Federal Republic of Nigeria, as amended and the extant Electoral Act. The power of the Commission to conduct these elections extends to fixing dates for the elections as well as determining the order in which the elections are to be conducted.
On the other hand, the National Assembly in section 4 of the constitution is vested with the power to legislate for the peace, order and good governance of the Federation or any part thereof and for the purpose of specificity, the Constitution clearly spells out in the Exclusive Legislative list of Part I of the Second Schedule to the 1999 constitution, the legislative province of the National Assembly.
This Paper Seeks To Examine:
the powers of the National Assembly and the extent to which the power can be exercised;
the power of the Independent National Electoral Commission as conferred on it by the Electoral Act and the Constitution of the Federal Republic of Nigeria;
the effect of Section 25(1) of the Electoral Act (Amendment) Bill on the 2019 general election calendar released by the INEC recently.
The Power of the National Assembly and the Extent to Which the Power Can be Exercised
The Constitution of the Federal Republic of Nigeria confers exclusive powers on the National Assembly to legislate for the federation or any part thereof. The legislative powers of the National Assembly is vividly captured in section 4 and the Exclusive and Concurrent Legislative lists set out in Part I and II of the Second Schedule to the 1999 Constitution. It therefore means that the National Assembly has been given the right to legislate on all matters included in the Exclusive Legislative list to the exclusion of the states Houses of Assembly. However, the constitution warns that the National Assembly must exercise its powers for purpose of attaining the peace, order and good governance of the Federation.
Item 22 of the Exclusive Legislative list specifically provides that the National Assembly shall have the power to make laws for “Elections to the offices of President and Vice-president or Governor and Deputy Governor and any other office to which a person may be elected under the Constitution”. The constitution however did not stipulate the order in which elections into the various offices are to be conducted unlike the provisions of section 25(1) of the Electoral Act 2010 as amended. Under that provision, the National Assembly may enact laws to regulate any election process and can further be detailed in the law as to what INEC needs to comply with at the commencement of the law since it is not its constitutional duty to conduct and supervise election but to legislate thereon. The above provision has given the National Assembly omnibus power on the conduct of elections in Nigeria which defies any extant law provided it is in exercise of its constitutional responsibility. The fact that INEC is acting within the parameters of the law does not in any way deter the National Assembly from carrying out its own constitutional functions. Even though sections 76, 116, 132 and 178 have given outright power to INEC to ensure elections to each of the offices mentioned therein, the National Assembly inclusive be held on a date appointed by it, this is not a substitute to the power of the legislature rather an extension of the power of the National Assembly in that the commission is only executing what is provided to it by the legislature in its Act. It therefore means that the National Assembly can alter, amend or repeal the provisions of the Electoral Act through its legislative processes, thereby determining the powers of the Commission and the scope of its operations. However, the National Assembly while discharging its constitutional responsibility must do so with caution so as not to affect the independence of the Commission.
The Power of the Independent National Electoral Commission as Conferred By the Electoral Act and the Constitution
The 1999 constitution of the Federal Republic of Nigeria vests the power and authority to organise and conduct elections in the Independent National Electoral Commission (INEC). INEC is established under section 153 of the Constitution. The Electoral Act in Section 2 specifies the power of INEC and describes how it will be organised to carry out its executive, administrative and financial business, as well as how it will be structured to administer the elections. In Section 153 (1) of the Constitution, section 15 of Part I of the Third Schedule to the Constitution, INEC is further vested with the power to “organise, undertake and supervise all elections to the offices of the President and Vice-president, Governor and Deputy Governor of a state, and to the membership of the Senate, the House of Representatives and the House of Assembly of each state of the Federation”. Therefore, it is not in doubt that INEC reserves the exclusive power to conduct elections in Nigeria and to determine how the elections are to be conducted.
Furthermore, the Constitution mandates the Commission to carry out other functions as may be conferred upon it by an Act of the National Assembly. It therefore means that any Act made or amendment made to extant laws either increasing or reducing the powers of INEC or altering the procedures to be adopted in elections, INEC is duty bound to comply. Failure to comply would mean that the Commission is acting ultra vires.
The Effect Of Section 25(1) Of The Electoral Act (Amendment) Bill On The 2019 General Election Calendar Released By INEC
The Independent National Electoral Commission in the discharge of its constitutional responsibility released a calendar to regulate the conduct of the general elections scheduled to take place as from February 2019. Section 25 of the Electoral Act provides for the order of elections into the offices of the President and Vice-President, Governor and Deputy Governor of a State and to the Membership of the Senate, the House of Representatives and the House of Assembly of each State in the following order:
Senate and House of Representatives;
Presidential election: and
State Houses of Assembly and Governorship elections.
After INEC had released the timetable for the 2019 general elections in compliance with Section 25 of the Electoral Act above, the National Assembly went ahead to initiate the ‘Electoral Bill 2018’ which altered the sequence of conducting the general elections. The sequence proposed by the new amendment is:
National Assembly Elections,
Governorship and State Assembly Elections, and
Presidential Election.
The effect of this Bill therefore is that INEC is required to bring out a new timetable which must comply with the new law upon commencement. However, it is important to note that when the Bill will be assented to and the commencement thereto is material to the time frame within which the Commission is expected to conduct the election otherwise the 2019 general election may be postpone to a later time when it will be more convenient to comply with the provisions of the constitution and that of the Electoral Act as to dates to be appointed by the Commission in compliance with the Constitution. Sections 76 (2), 116 (2), 132 (2) and 178 (2) in the case of elections to the offices mentioned in Item 22 of the Exclusive Legislative List of the Second Schedule and section 15 Part I of the Third Schedule to the 1999 Constitution as amended provides that the date to be appointed shall not be earlier than one hundred and fifty days and not later than one hundred and thirty days before the election date or where the election is to fill a vacancy a ninety days before such date and not later than thirty days after the vacancy occurred, in the case of the President and Governor before the expiration of the term of office of the last holder of that office. Eventually, INEC will not be held responsible for not conducting the election within the time frame anticipated by the citizens if the matter is not dealt with expeditiously because time is of essence.
In conclusion, the National Assembly can in the exercise of its constitutional power legislate on Election matters and further amend Electoral Act for the peace, order and the good governance of the Federation or any part thereof provided the National Assembly has not reduced itself to the position of the Independent National Electoral Commission. It must be noted that the provision of the Section under review is the legislation of the National Assembly and the Commission is complying with the constitutional provision. However, the author of this paper unlike the popular view does not see the act of the National Assembly as unconstitutional nor is it usurpation of the power of the Independent National Electoral Commission but an exercise of its constitutional responsibility. The questions left to be pondered upon is: what can we use to measure which legislation is for peace, order and good government of the federation when the lawful act of the National Assembly is now a matter of concern to the populace? And if that is the Litmus Test as considered by the author, then in which laboratory can the Electoral Act (Amendment) Bill be taken to for experiment and with which apparatus can we use to measure its peace, order and good governance for analysis of variance?
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