By Josef Omorotionmwan
THIS large Debating Society called Nigeria has become one place where every policy initiative is viewed with suspicion. During the build-up to the 2015 general elections, the presidential election was fast-tracked to the number one position but not without the type of acrimony usually associated with World Wars. The opposition parties quickly saw in the new arrangement, a grand design to produce a band-wagon effect for the majority party.
Our contribution to that debate was titled “Climbing a tree from the top”, in apparent reference to the perceived anomaly in putting the election to the highest office in the land before the lower ones. We, however, concluded that hard-work remains the only antidote to harvesting the benefits of the band-wagon. After all, to the victor belongs the spoils of office.
The Independent National Electoral Commission, INEC, recently issued an election time-table for the 2019 contests. This conforms to the sequence for the 2015 elections. But the National Assembly, NASS, in a recent amendment to the Electoral Act, has reportedly re-ordered the sequence of the elections – placing the NASS elections first and that of the President last.
A storm of indignation has since burst forth, with a majority of those who were against the arrangement in 2015 now favouring it; and insisting that NASS’s re-ordering is intended to benefit the NASS members at the detriment of President Muhammadu Buhari and his party.
Many argue vehemently that the action of the NASS is a total usurpation of the powers of INEC to conduct elections as provided for in our Constitution.
Clearly, the 249-page document called the Nigerian Constitution is already too voluminous for a country’s Constitution. A constitution is a skeleton that only sets out the major thrusts, in broad outlines, the ways of conducting the affairs of the nation, leaving it to Acts of the NASS, to supply the flesh for the skeleton. It would be unimaginable, the size and the number of volumes that we would have were we to include the minute details in the Constitution. That, for instance, explains why, in its original form, the American Constitution is less than 10 pages; and there are countries, like Britain, that do not have a written Constitution.
Admittedly, the Nigerian Constitution vests in INEC, the powers to conduct elections in Nigeria. In Section 158(1), the Constitution goes further to equip INEC with a degree of independence in some specific areas: “In exercising its powers to make appointments or to exercise disciplinary control over persons, the Independent National Electoral Commission shall not be subject to the direction and control of any other authority or person”.
At no time did the doctrine of separation of powers as enshrined in the Constitution envisage absolute independence for any branch or agency of government. Rather, the Constitution only strives to create a situation of healthy inter-dependence among the federating elements.
There are limits to independence. The fine details of how INEC discharges its functions cannot be found on the pages of the Constitution but in some other pieces of legislation by the NASS of which the Electoral Act and its subsequent amendments form the arrow-head.
It is right to say that the functions of INEC as granted by the Constitution are messengerial. In Section 4(1) of the Constitution, the NASS is charged with the responsibility for making laws for the peace, order and good governance of the country. To become law, bills passed by the National Assembly must be assented to by the President, except on those rare occasions where the presidential veto are over-ridden by the NASS.
INEC does not make laws but it could be empowered by the NASS to make some subsidiary rules and regulations for the smooth discharge of its functions. A delegated authority cannot be higher than the delegating Authority. Any INEC rule or regulation that conflicts with INEC law automatically drops dead.
The issues of Nigeria’s general elections stand clearly on a tripod – dates of elections; sequence of elections; and election cycles. This categorisation has become necessary to enable us understand where the INEC and NASS may have acted ultra vires their powers.
As currently situated, the determination of the dates of the immediate elections cannot be a matter requiring legislative enactment. It is a mere administrative issue that should be left with INEC.
Carefully considered, though, the sequence of elections bears some traits of legislative enactment; and rises above what one can easily classify as merely administrative, particularly against the back-drop that it sometimes swims in the murky waters of political argumentation. Essentially, therefore, the issue of election sequence ordering falls squarely in the legislative domain.
Penultimate Wednesday, the Mamood Yakubu-led INEC strayed off the path of law when it decreed an Election Cycle on the nation, far beyond the first half of this century. Perhaps, unwittingly, INEC threw caution to the winds by not realising that when it comes to legislating for the present and future INEC regimes, the NASS is the sole authority.
The opinion of the absolutists who claim that the NASS is an interloper when it comes to re-ordering the sequence of elections and establishing an Election Cycle takes some uncomfortable distance from legal realities and it simply crumbles.
Granted a free reign, the strict constructionists would insist that INEC’s independence on issues of election supersedes everything else, including the need for NASS to enact any law for INEC, such as the Electoral Act; as well as even the need for INEC to approach the courts!
The call on INEC to go to court is simply asking INEC to jump the gun. Since when did it become the vogue for the Federal Government or any of its agencies to go to court to stop the enactment of a law? We have heard of mounting pressure (like the 50 million-man match on Abuja) to get the NASS to have a re-think; and where that fails, shouldn’t they begin to lay ambush at the presidency to get the President to veto the undesired measure? The courts should come as a last resort.