By Ikechukwu Nnochiri

Abuja—The Federal Government has expressed its discomfort over sections of the amended Electoral Act that it said has inadvertently stripped the judiciary of its adjudicatory powers in election petition cases.

The Attorney General of the Federation and Minister of Justice, Mohammed Bello Adoke, SAN, who is presently challenging the legality of sections 140(2) and 141 of the Electoral Act 2010, as amended, before a Federal High Court in Abuja, insisted that the provisions were totally inconsistent with the provisions of the amended constitution of the Federal Republic of Nigeria.

He is urging the trial high court to expunge the aforementioned sections of the Electoral Act for stipulating specific order a tribunal can make in election petition cases.

Whereas section 140 (2) provides that “where an election 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 provision of this act, the election tribunal or court shall not declare the person with the second highest votes or any other person as elected, but shall order a fresh election”.

Section 141 on the other hand provides that “an election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election”.

The AGF through a written address he filed in favour of a substantive suit that was filed in court by the Labour Party, LP, maintained that the said sections of the Electoral Act, derogated from the provisions of sections 239 and 285 of the constitution, which he said imbued tribunals with the powers to hear and determine election petitions and to make declarations as to the rightful winners of such elections without reservation.

He contended that the constitution being supreme to any other law operational in the country, ought to be remain the primary modus operandi that should guide the conduct of election petition tribunals across the country.

Arguing through his counsel, Ms Olufunke Aboyade, the AGF who implored the court to take judicial notice of section 1(3) of the Constitution, pleaded  it to go ahead and re-amend the Electoral Act by declaring the disputed sections null and void.

Mrs Aboyade noted that sections 140(2) and 141 of the Electoral Act appeared to directly contravene the provisions of section 4(8) of the Constitution which subjects the exercise of legislative powers to the jurisdiction of the courts.

Meanwhile, the Labour Party, had in  an originating summons it filed through its counsel, Chief Chuwkuma Ekomaru, SAN, asked the Federal High  court  to invoke its jurisdiction and declare  the controversial portions of the Electoral Act  illegal, averring that it was at variance with the provisions of sections 6(6a), 134, 179, 285 of the 1999 Constitution.

It is also seeking an injunction restraining the AGF and the Independent National Electoral Commission, INEC, from refusing to accept any candidate of the party declared by a tribunal as winner of election into any elective office across the federation.

The said sections 140(2) of the Electoral Act provides that as follows: “Where an election 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, the election tribunal or court shall not declare the person with the second highest votes as elected, but shall order a fresh election.”

Section 141 of the Act further provides that: “An election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said elections.”

A 17-paragraph affidavit deposed to by the chairman of the party, Dan Nwanyanwu was also attached to the originating summons.

In the affidavit Chief Nwanyanwu posited that: “I have read the Electoral Act, 2010 and discovered that section 140(2) and 141 of the said Act smacks of legislative tyranny in that it removed the constitutionality guaranteed powers of the court to declare a candidate the winner of an election.”

He also stated that by the provisions of the sections of the Electoral Act in disputes, the legislature had interfered with judicial affairs in violation of the doctrine of separation of powers.

According to him, “by virtue of sections 134 and 179 of the constitution, the courts have been given the power to declare the person with the majority of the votes as the winner”.

The party further stated that sections 140(2) and section 141 of the Electoral Act were aimed at tying the hands of the tribunals and the court of appeal from declaring who scored the highest votes as the winner of the election.

Meanwhile, the absence of a legal representation for the INEC, on May 26, when the suit was ab-initio slated for hearing, led the presiding judge on the matter, Justice Gabriel Kolawole to adjourn the case till June 15, just as he ordered the plaintiff to effect service of all the court processes on the electoral body.