Law & Human Rights

March 22, 2018

Election re-ordering: Lawyers divided on court action

Election re-ordering: Lawyers divided on court action

*Senate President Bukola Saraki and President Muhammadu Buhari

By Abdulwahab Abdulah & Bartholomew Madukwe

No question of law arises on a bill yet to be law — Professor Ben Nwabueze, SAN

Nigeria is a country where strange things happen, where a Court of Law, whose jurisdiction is limited to the application of law in dispute before it, can act on the basis of a Bill that has not yet become law; in other words, rendering an advisory opinion, which a Court of Law under our system has no authority to give, that the eventual enactment of the Bill into law will be unconstitutional, null, and void. Even when the intention has been formulated into a bill, no question of law arises at that stage, for a bill is not law; as such, it cannot be an unlawful exercise of the power of law-making in as much as it may be abandoned or amended before the processes of its translation into law are completed.

*Senate President Bukola Saraki and President Muhammadu Buhari

NASS is ignorant of the legal aspect Prof. Itse Sagay, SAN

If you look at Section 6 of the Constitution, it is very clear that the Court has the power to adjudicate in the matter between the Executive and the Legislature, virtually everything. Not only that, when there is a dispute between the Executive and the Legislature, the Court is the only source to which they can go to for adjudication. There is obviously a dispute between the Executive and Legislature in this area. That is number one.

Secondly, the National Assembly is being very short- sighted. If for any reason the Court declines to hear the case, in response to the National Assembly’s request, what happens? If the President and the Independent National Electoral Commission, INEC, refuse to implement the new law that they have over-ridden, they will rush back to the Court. So, it is short-sighted and against the principles of law established in the Constitution and the common law. In common law, we have a principle that permits anybody who is in danger of an imminent injury of anyone to rush to the Court to stop that person from carrying out the injury, rather than waiting for the injury to be done and going out to seek remedies.

Those who took the matter to the Court, is a political party which I understand; they have an interest or may be injured, if the legislation is implemented or if they override the President’s refusal to sign. To prevent that injury, they rushed to the Court. It is for the National Assembly to get to the Court and explain whether they have the power to pass that law and whether it will cause injury to the person that complained. So, I have no doubt in my mind, at all, that the National Assembly is ignorant of the legal aspect of the whole issue.

The Order is interim and improper to comment onMr. Tani Molajo, SAN

My view is that this dispute between the President and the National Assembly is one which is under adjudication and therefore, it is subjudice. That order made by the Court is an interim order; it is not one which is made to last in perpetuity. It is made to last until the next adjourned date, until further order. In my view, it is not proper for anyone to begin to comment on these proceedings or the order made in those proceedings publicly. There can be no public discussion of the totality or otherwise of a Court order in proceedings which are subjudice. It is after the outcome that the matter can be thrown open for public debate.

You know the laws of contempt to Court are quite clear, definite and strict. Running commentary on proceedings which are ongoing should be discouraged because of the risk that it may tend to influence the ultimate decision or influence the party, particularly to discontinue or abandon their claim or defense. No pressure should be put on either party as proceedings are continuing in Court. That is why public debate and commentary are discouraged by the laws of contempt. Commentary can run when proceedings are concluded, at least at a level in the judicial system in which dispute is currently being adjudicated.

N/A should defend the case and make her pointsMr. Babatunde Fashanu, SAN

The courts need to be aware of the separation of powers in the Constitution.   For example, can the National Assembly legislate that the Supreme Court must not hear a particular case? I can tell you that under the Constitution, each of the three arms of government have their respective roles spelt out. None of the arms can prevent the other from performing their functions except as spelt out. So, the legislature cannot legislate the judiciary out of hearing and adjudicating a case but can make laws to reverse the case after its conclusion.

Similarly, the judiciary cannot stop the legislature from legislating but can declare a Law or Act illegal after it has been made. That is how far I can go generally without impinging the subjudice rule. However, the NASS writing the Chief Justice of Nigeria, CJN, about the ongoing case is neither here nor there.   The Judge cannot be controlled by the CJN about how he determines a case until the case gets to the Supreme Court through the appellate system. So, the NASS should direct its efforts at defending the case in court and make their points there,  but can make Laws to reverse the effect of the case.

The N/A has the right to veto the Bill Mr Lawal Pedro, SAN-

It is important to understand that Nigeria operates a presidential system of government with a National Assembly, a bicameral legislature established under section 4 of the Nigerian Constitution to make laws for the country as representatives of the people. Therefore, before any bill may become law, it must be agreed to by both the House of Representatives and the Senate, and thereafter passed to the President for his assent. Should the President refuse assent (veto), the National Assembly may pass the law by two-thirds of both chambers and overrule the veto and the President’s consent will not be required.

That is the Constitutional law of the country and there is nothing anybody can do about that. From all indications, the   National Assembly has not hidden its preparedness to overrule the President on the proposed amendment to the Electoral Law.

The intervention of the Judiciary, the third arm of government vide the Federal High Court order of injunction is a new development in our jurisprudence. We all know that the Constitutional duty of a court is interpretation of law and to give effect to it. The court should ordinarily not interfere with legislative process of making a law.

However, where any person has commenced an action in court to challenge the power of the National Assembly and an interim/interlocutory Order of injunction is made, no matter how frivolous the action may be in the eyes of the National Assembly or the public, everybody has an unqualified obligation to obey and respect the order of the court and the judicial process until the order is set aside or action dismissed by due process. Any other way or step taken by the National Assembly or anybody will amount to self help and an invitation to chaos and anarchy which should be avoided. Therefore, anybody aggrieved by the order should apply to court to have it set aside. That is the dictate of the Rule of Law.

The legislative arm can’t do executive duties—Chief Goddy Uwazurike

The constitution of Nigeria placed this country on three pedestals at the federal level. The legislative body makes the laws implemented by the executive while the judicial arm interprets the outcome of the three arms. As it is today, the judicial interprets the outcome, not the work in progress. The legislative arm has the unfettered jurisdiction to make laws. It is after the law is made that you can challenge it in the law court, not before. The executive has the power to execute the functions of the executive arm. The judicial arm actually interprets the law. You cannot stop the executive or the legislature from exercising their constitutionally guaranteed functions. Mutual respect is always there. The legislative arm cannot do the executive duties such as oversight and even ordering arrest, confirmation or removal of judicial officer.