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Sequel to the disagreement between NASS and INEC over the sequence or order of elections

Chairman of the Patriots, Professor Ben Nwabueze, has described the court action trying to stop the National Assembly from overriding President Muhammadu Buhari’s veto of the sequence of elections bill, as strange, saying that the matter was “not justiciable.”

Nwabueze said that the powers of both the President and the National Assembly, NASS, to veto or override one another over bills were enshrined in the 1999 Constitution, adding that the way to go about it was for the presidency to lobby NASS on the issue rather than instituting frivolous actions in courts.

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The disagreement between the National Assembly and INEC on the matter of the sequence or order of elections has given rise to a crisis situation that must rank among the strange happenings in the country. The Electoral Act (Amendment) Bill 2018, which is a Bill for a law to give effect to the intention or proposal of the National Assembly slating the presidential election to take place after all the other elections, was passed by the Assembly sometime in February 2018, and sent to President Buhari for his assent.

Prof. Ben Nwabueze

He returned it to the Assembly after nearly 30 days with a letter informing the two Houses of his decision withholding his assent to the Bill, i.e. vetoing the Bill, on the ground, among other reasons, that the Bill infringes the power of INEC to organise, undertake and supervise elections under paragraph 15(a) of the Third Schedule to the Constitution. The consequence of the President’s action is that it invites a counter-action by the Assembly to override his veto.

Sensing a counter-action to be on its way, the Accord Party, one of the registered political parties, by an oral application, asked the Federal High Court (FHC) Abuja Division, to restrain the National Assembly, by means of the coercive process of injunction, from taking such counter-action. It is not clear what interest the Accord Party has in the matter that bestows on it the locus standi to bring the suit in the FHC.

The situation thus created involves three intricate legal issues of critical importance, viz
(i) The action of the President in withholding his assent to the Bill. The withholding of his assent was done pursuant to a power granted to him by section 58(4) of the Constitution which says that “where a bill is presented to the President for assent, he shall within thirty days thereof signify that he assents or that he withholds assent.” The mere existence of a power granted by the Constitution precludes a contrary or conflicting right in any one as regards the matter in question and no question can therefore ever arise of the grant or the existence of the power being an infringement of such right, as to ground action for an injunction to restrain the exercise of the power; such a right simply stultifies the power, emptying it of all meaning and force.

(ii) The anticipated counter-action by the National Assembly overriding the President’s veto. The authority for this derives from the power granted to the Assembly by section 58(5) of the Constitution which says that “where the President withholds his assent and the bill is again passed by each House by two-thirds majority, the bill shall become law and the assent of the President shall not be required”. Like the President’s power to withhold his assent, the National Assembly’s power to override the withholding of his assent is a power granted by the Constitution, and what is said above about the President’s power to withhold his assent applies mutatis mutandis; in particular, the grant of the power, i.e. its mere existence, is not, and cannot be, an infringement of anyone’s right. This must be kept distinct from the Assembly’s general power to make laws which requires a bill to pass through the processes of first, second and third readings before submitting it to the President for his assent.

What concerns us here is only the power to override the President’s veto, not the Assembly’s general power to make laws. The consequences of the power to override, after it is exercised, are another matter, but the exercise of the power in the first instance cannot be stopped because of the possible consequences of exercising it. The course of action open to opponents of the exercise of the power (i.e. power to override the veto) is to lobby support in the Assembly to prevent the Bill being re-passed by ⅔ majority, not to stop the Assembly by court injunction from embarking at all on the process of exercising the power in the first place.

I think that, to dispel from the public mind the growing feeling that it (the presidency) had a hand in stopping the exercise by the National Assembly of its constitutional power to override its veto, the presidency should take steps to dissociate itself from that mischievous action, which could not have had the overall interests of the country at heart.

(iii) The action stopping the National Assembly from exercising its constitutional power to override the President’s veto raises three critical legal issues of its own. First, is it justified in reason or principle? The rationale proffered for it by the plaintiff’s counsel, which of course provides no justification for it, is the doctrine of lis pendis, which, as argued by counsel, “forbids any party in litigation, whether or not there is an application for an injunction, not to do anything that will fragment or extinguish the Res of the litigation. If they act under section 58(5), there will be a constitutional crisis, anarchy, chaos and there will be no return to status quo ante belum, so prevention they say is better than cure.” The argument is attractive but only superficially so. What res is being talked about here? There is no res, except the one artificially and unlawfully created by the suit itself to serve the mischievous design of stopping the National Assembly from exercising its constitutional power to override the President’s veto.

Second, can the High Court’s injunctive order, albeit interim in its duration, restraining the National Assembly from overriding the President’s veto be squared with the hallowed principle of the separation of powers, as authoritatively expounded by the U.S. Supreme Court in Humphrey v. United States 265 U.S. 602 (1934). The words of the Court are so classic as to merit repetition here:

“The fundamental necessity of maintaining each of the three general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the others, has often been stressed and it is hardly open to serious question. So much is implied in the very fact of the separation of the powers of these departments by the constitution and in the rule which recognises their essential co-equality. The sound application of a principle that makes one master in his own house precludes him from imposing his control in the house of another who is master there……The independence of each department requires that its proceedings shall be free from the remotest influence, direct or indirect, of either of the other two powers (emphasis supplied).
No interference could be more direct or coercive than the use of an injunctive order issued by a court to stop the National Assembly from exercising its constitutional power to override the President’s veto.

The third issue raised by the suit is more basic and critical. Has the Federal High Court (FHC) the power or jurisdiction to make or issue the injunctive order against the National Assembly? The FHC is a court of law; as such, its jurisdiction is limited to the application of law in the determination of disputes brought before it involving the legal rights, obligations and interests of the parties to the dispute. As the Electoral Act (Amendment) Bill has not yet become law, not having been assented to by the President as required by section 58(1) & (2) of the Constitution, it follows that, being a court of law, the FHC has no jurisdiction to issue the injunctive order it did issue against the National Assembly, acting on the basis of the said Bill.

The suit before the Court, filed by the Accord Party as plaintiff, is not a justiciable suit because it is based on a Bill that has not become law, and is not therefore governed by law in accordance with which the rights of the plaintiffs, if any, are to be determined. Not being a justiciable suit, the injunctive order issued by the court against the National Assembly is not a judicial decision, and is not binding on, or enforceable against, the National Assembly; at best, it is an advisory opinion. (The decided authorities on the issue are many but are considered in my book, Judicialism (1977 chap iv). Under our laws, a court has no power to render an advisory opinion, but the intricacy and relevance of the subject make it necessary to explain in an addendum why our courts are not permitted to render an advisory opinion.)

I quote below what I wrote in my book, Nigeria’s Second Experiment in Constitutional Democracy (1985), pages 352 – 353, on the issue pending before the Federal High Court (FHC).

“The translation of power into action is preceded by a preliminary process of thinking out and formulating a policy. This process is not regulated by law. The Court of Appeal of Zambia has accordingly held that the mere announcement by the government of an intention to introduce legislation cannot be a violation of the Constitution, castigating as “absurd” any suggestion that the legislature intended the courts to be vested with the power to pronounce in advance that if the government pursued an expressed intention, legislation on the lines of that expressed intention would be ultra vires the Constitution. The consequences of such a construction would be truly chaotic.” Nkumbula v. Att-Gen, for Zambia, Appeal No. 6 of 1972, of 4/12/72 per Baron J.P. (as he then was).

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 inasmuch as it may be abandoned or amended before the processes of its translation into law are completed, -Cf. Pugh, “The Fed declaratory remedy: justiciability, jurisdication and related problems’, Vand. L. Rev., 1952, 79, 94 – 95 – it cannot affect the rights of any persons. The High Court of Australia – the apex court in that country – thus rightly dismissed an application to prevent a bill passed by the federal legislature from being presented for the Governor-General’s assent, on the ground that the bill was beyond the powers of that legislature. Hughes and Vale Pty. Ltd v. Grair (1954), Argus L.R. 1094 .

In his judgment in the case, Chief Justice Dixon rightly criticized as incorrect a decision of the Supreme Court of the state of New South Wales, which granted an injunction to restrain the presentation of a bill that had been passed by the state legislature but was not submitted to a referendum as required by law. Trethowan v. Peden (1930), 31 S.R. (N.S.W.) 183.

The decision was induced by the peculiar provision of the Constitution which in terms prohibited presentation for royal assent before approval at a referendum. For a review, see Cowan, L.Q.R. 71, p. 376. The Bendel State High Court was thus clearly in error in declaring as ‘totally illegal’ a bill under consideration by the State House of Assembly for the purpose of establishing local government councils, and in restraining the House and all its servants, agents or functionaries from taking further steps in the process of enacting the bill. Att-Gen., Bendel State v. House of Assembly, Bendel State, Suit No. B/166/82 of 9/7/82 by Ekeruche C.J. Equally erroneous and unwarranted was the order by the Kwara State High Court restraining President Shehu Shagari from assenting to a bill to establish a national advisory council on the mass media through an amendment to the Electoral Act, 1982.” Ex parte Kwara State Printing and Publishing Corpn., per Kawu C.J., National Concord, 30 June 1983.
By Professor Ben Nwabueze


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