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Group, activists challenge N/A on rules of procedure for courts on election matters

By Onyema Omenuwa

If Lagos pro-democracy, constitutionaland human rights law group, the Human Rights Law Service (HURILAWS) has its way, the National Assembly will cease to make rules of procedure for courts in respect of election matters.

Really, the group has embarked on a quest to achieve this feat, which promises to alter political equations in the country. HURILAWS has filed a suit in the Federal High Court in Lagos for this purpose.

On Tuesday, July 7, Justice A.M. Liman fixed July 29, 2009 for the adoption of brief of argument and continuation of hearing in the suit against the National Assembly. HURILAWS filed the suit, No. FHC/L/CS/216/09, with three other co-plaintiffs: Mr. Okey Ezea, the Action Congress candidate for the 2007 governorship election in Delta State Mr. Peter Okocha, and foremost rights activist Olisa Agbakoba (SAN).

The plaintiffs are asking the court to determine that the National Assembly has no constitutional power to make rules of procedure for Election Petition Tribunals and the Court of Appeal in the exercise of their jurisdictions over election petitions and appeals arising from election petitions. Chijioke Ogham-Emeka of Olisa Agbakoba & Associates is leading Onyema Omenuwa as counsel for the plaintiffs.

It is the contention of the plaintiffs that such power being exercised by the National Assembly does not only violate the principles of separation of powers but also infringes on fair hearing (i.e. Nemo Judex in causa sua: you cannot be a judge in your own case), since most members of the National Assembly normally have their elections challenged at election petition tribunals.

The plaintiffs contend that in line with the Doctrine of Separation of   Powers enshrined in the 1999 Constitution it is the President of the Court of Appeal who has the constitutional power to make particular rules of procedure for Courts under his administrative supervision and not the National Assembly whose power is limited to making general provisions for procedure. Joined as co-defendants in the suit are the Attorney-General of the Federation and the President of the Court of Appeal.

It would be recalled that the National Assembly purporting to exercise its law making functions enacted Section 151 of the Electoral Act 2006, with effect from 6th June, 2006, wherein it included a mandatory provision that the rules and procedure to be adopted for election petitions and appeals arising therefrom shall be those it set out in the First Schedule to the Electoral Act 2006.

The National Assembly also enacted Section 147(3) of the Electoral Act 2006 where it provided that a petition should be struck out if it fails to conform to the provisions of the First Schedule.

The National Assembly, acting pursuant to these enactments enacted the First Schedule which it entitled “Rules of Procedure for Election Petitions” which it made applicable to Election Tribunals and the Court of Appeal (Presidential Election Tribunal) and for appeals from election petitions at the Court of Appeal and the Supreme Court.

Meanwhile, the President of the Court of Appeal, a Judicial Officer, the Head of the Court of Appeal, the equivalent of a Justice of the Supreme Court, the Constituting, Appointing and Convening Authority for the Election Tribunals, desirous  of administratively regulating the internal procedure of these Courts for more effective and speedier disposal of election petitions, issued the “Election Tribunal and Court Practice Direction, 2007”, with effect from 3rd April 2007, at the onset of petitions from the 2007 general elections, to achieve this set objective.

During proceedings across the country, there were arguments over which provisions between that of the National Assembly and the President of the Court of Appeal  would guide certain issues of procedure, especially frontloading of documents and extension of time for certain steps.

It was largely held that the National Assembly law was higher in hierarchy of laws. Some counsel went as far as arguing that the President of the Court of Appeal, even as the Head of the Court of Appeal and the Constitutional Constituting, Appointing and Convening Authority for Election Tribunals, had no authority at all to issue the Practice Directions to control the internal procedure of the Court of Appeal and Tribunals.

Ultimately, as a result of hierarchy of laws, the National Assembly-made rules triumphed over the President of the Court of Appeal’s attempt to regulate the internal procedure of the Tribunals and the Courts under his administrative and convening authority.

The conflict between the Legislature-made Rules and the Judiciary- made Directions not only sustained the delays which the President of the Court of Appeal initiated the reform to curb, but also resulted in what may pass as the greatest incidents of conflicting decisions in any Final Court in the history of the Judiciary anywhere.

The result is now continuing delays in the election petition adjudication and an unprecedented magnitude of uncertainty in practice and procedure.

The latter presents  difficulty in knowing where the law stands, even when the Court of  Appeal is final in more than  98% of election petitions in Nigeria (Apart from Presidential Election disputes, all election disputes terminate at the Court of Appeal).

Knowing that the National Assembly brought about the entire problem set out  above when it made an obvious unconstitutional incursion into the internal rule  making domain of the Judicial Arm, the Plaintiffs have embarked on this action for the Federal High Court to construe the relevant provisions of the Constitution 1999 to decide between the National Assembly and the President of the Court of Appeal who has powers to make particular rules of procedure for Election Tribunals  and the Court of Appeal in the exercise of the latter’s jurisdictions as the Presidential Election Tribunal and the appellate court to Election Tribunals.

Talking about constitutional review, this is one suit whose effect will ultimately determine how expeditious election matters can be disposed of, and nothing can better for polity. That is the plaintiffs succeed.


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