Buhari, INEC, NASS in three-way face-off

In what appears to be getting more interesting by the day, the new sequence introduced by members of the National Assembly, for the 2019 general elections, is set to pitch Aso Rock Presidential Villa, and the Independent National Electoral Commission, INEC, on the one hand, against members of the National Assembly who insist that it is within their powers to set the order of elections.

Whereas observers are divided on the appropriateness of the move by the legislators, this report will show why, without prejudice to the real but veiled intentions of the legislators, a bottom-up approach to voting for public office holders comes with very tantalising possibilities for a rainbow legislative house, something that is desirable in a polity of clashing political and economic interests. For, in the final analysis, you can only climb a tree from the bottom and not from the top. Climbing the tree from the top Perhaps, Professor Attahiru Jega, the immediate past national chairman of the Independent National Electoral Commission, INEC, meant well when he decided to put the national legislative/presidential elections before the state legislative/governorship elections. What he did, nevertheless, amounted to climbing the tree from the top.

In a polity where brute force, coercion and the state monopolises the instrument of security, it is only now becoming self-evident the existential danger such an arrangement represents. Because of the structure and nature of politics in Nigeria, as well as the the way and manner political mobilisation and electioneering activities are engaged, election to the office of the President has the unintended effect of a bandwagon when it is the first in a series of elections. The pattern of voting in the 2015 general election was a reflection, in part, of the role the person of Muhammadu Buhari. In fact, having been delivered as the winner of the presidential contest, it became only a matter of formality for a bandwagon effect to sink in and, in the process, creating a more fertile ground for the acceptability of the change agenda.

It is the fear of a drill-down, more than any other thing being professed, that members of the National Assembly are anxious about, hence their decision to reset the sequence of the 2019 election, even after INEC had announced dates for same. This postulation accepts the premise that the ill-wind of crisis in the ruling All Progressives Congress, APC, may blow in directions that may cause discomfort for many, particularly those seeking elective offices after the presidential election has been concluded – already, Bola Tinubu, national leader of the party, has been drafted to reconcile warring leaders.

INEC announced to the nation in late 2017 that, in line with the powers vested in it by the 1999 Constitution, under the 3rd Schedule, Paragragh 15 (1), to organise, undertake and supervise elections to the respective offices that it has power to conduct election, it scheduled the presidential and national assembly elections – which are federal elections – to take place on Saturday, February 16, 2019; while the governorship and elections into the state houses of assemblies of the 36 states would take place on March 2, 2019 – some two weeks after the presidential election. The Commission went further to inform the nation that following a new scheduling practice, in line with the 2019 election dates, in all subsequent elections such as 2023 and beyond, every third Saturday of February of a general election year would be set aside for federal elections namely, the presidential and national assembly elections, while every first Saturday of March of a general election year would be for governorship and state houses of assemblies elections. According to the Commission, these schedules were in line with international best practice. In furtherance of this and complying with Section 25 of the Electoral Act, the Commission released four weeks ago a detailed schedule of electoral activities with dates and timelines for all activities in the 2018-2019 electoral cycle that would culminate in the 2019 general election which is now just 12 months away. President of the Nigerian 8th Senate, Dr.

In 1999, under late Justice Ephraim Akpata, then INEC chairman, State/National Legislative elections were held before Gubernatorial/Presidential. In the 2003, Dr. Abel Guobadia, followed the same sequence. In 2007, INEC, under Prof. Maurice Iwu, changed the sequence to State Legislative/Gubernatorial elections before the National Legislative/Presidential elections. In 2011, Jega allowed State/National Legislative election before Gubernatorial/Presidential. In 2015, Jega put the National Legislative/Presidential polls before the State Legislative/Gubernatorial elections The curious twist However, a curious twist which, in the opinion of some people, threatens to throw spanners into the delicately calibrated cog of the electoral schedule by INEC, crept in on Wednesday, January 24, 2018, when the House of Representatives, in its amended version of the expected 2018 Electoral Act, approved a provision for a new order of elections, with national assembly election coming first; this is proposed to be followed by governorship and state house of assembly elections before the presidential election which will come last.

Just last week, the Senate agreed with members of the House of Representatives. The face-off to come By this arrangement, the legislators are, in a manner of speaking, telling President Buhari that he is on his own. Already, staunch supporters and confidants of the President also see through this magic by members of the National Assembly. Before the amendment to the Electoral Act can be seen through, however, it requires a presidential assent. It is at that point that the battle of wits would begin. Presidency sources insist that what the National Assembly is trying to do is not altruistic. But again, we confront the impracticability of attempting to climb a tree from the top. In the event that the President withholds his assent, Sunday Vanguard has been told by some members of the National Assembly that they would call his bluff and go ahead to override him.

In fact, stemming from an earlier report last week on the current travails of the Senate President, Bukola Saraki, at the Code of Conduct Tribunal, CCT, Nigerians should expect more fireworks from members of the Senate. Whereas Aso Rock believes the Senate has, in recent times, been engaging in some conduct designed to and meant for the purpose of causing the Presidency embarrassment, Sunday Vanguard has been made to understand that some Senators have vowed to resist the executive arm from determining how affairs in that chamber of the National Assembly is conducted.

Just last week, too, the House of Representatives lampooned both the Attorney General of the Federation and the Economic and Financial Crimes Commission, EFCC. It accused both of manipulating the judicial process in the case against Saraki. Yet, the same EFCC got a boost from the head of Interpol when he visited the Commission’s headquarters in Abuja, heaping encomiums on the activities of the anti-graft agency and recommending it to other countries. INEC, on its part, is between the hard place and the deep blue sea. Its budget is yet to be approved by members of the same National Assembly who have re-ordered the sequence of elections. This scenario promises to be interesting in the coming weeks.

Reliance on institutional memory

The attempt by lawmakers to legislate the order of election is not entirely new having travelled this route before in 2002. That year, the legislators attempted a similar amendment of the Electoral Act with the enactment of Section 15 of the Electoral Act 2002, in relation to fixing the order of elections into the offices of the President, National Assembly along with governors and state houses of assembly elections. At that time, the incumbent President withheld assent but was vetoed by the lawmakers. Their action was further challenged by the INEC in the case of NASS vs The President at the Federal High Court. The court subsequently struck down the said provision as unconstitutional and inconsistent with the provisions of sections 76, 116, 132 and 178 all of which stipulated that “Elections…. shall be held on a date to be appointed by the Independent National Electoral Commission”. Thereafter, the National Assembly appealed against the judgment at the Court of Appeal and again in a unanimous judgment, the court as per Justice Oguntade. (J.C.A) who delivered the leading judgment affirmed the decision of the lower court and even went further to state that, but for the fact of the wide disruption of our national life that may ensue given that the Act was already being used for the 2003 election, it would have nullified the entire Electoral Act but however declared the provision of section 15 of the 2002 Electoral Act unconstitutional, given the provisions of sections 76, 116, 132 and 178 as they were in the textual form at that time.

Why the lawmakers may succeed this time around!

Eternal vigilance by the people is key to sustenance of democracy hence Nigerians should pay attention to and monitor the activities of all its leaders, particularly when there is an invitation by lawmakers to the people with respect to public hearings on proposed new laws or amendments of the Constitution. The ongoing controversies over the lawmakers re-ordering of the order of elections may just be a waste of time because the earlier provisions and textual form of sections 76, 116, 132 and 178 of the Constitution that the appeal court affirmed then as giving powers to INEC alone to fix date and order of election have since changed and the textual content now reads as in the case of the President for example “An election to the office of President shall be held on a date to be appointed by the Independent National Electoral Commission in accordance with the Electoral Act”. Senate Chamber In any event, as at today this is the position of the Constitution. It has been amended to subject the “appointed date for elections” to the Electoral Act in the exercise of power to fix the date for election by the addition of the text “in accordance with the Electoral Act” to the original textual form. It is common knowledge that amending Acts are by far more facile than amending constitutional provisions. Perhaps learning from the lessons of their previous ordeal from the Court of Appeal judgment, the lawmakers patiently bided their time and then used legislative powers and procedures to obtain the changes they sought having received the approval from 2/3 of the 36 States Houses. Questions! But one of the questions that are troubling is: Is it right or elegant to subordinate the Constitution to a subsidiary legislation? Expectedly, opinions amongst lawyers would be divided and this would consequently require judicial intervention.

Furthermore, there are some inconvenient questions to answer: For instance, do we have the time, given already scheduled electoral activities towards 2019 to go into litigation up to the Supreme Court? Why did the lower chamber wait till this time, unlike the Senate that passed its version of its amendments since last year and have been waiting for the lower chamber that ought to be more active? Interestingly, being a legislative body peopled with a preponderance of APC lawmakers, can it be taken that APC is the one pushing for this new sequence? What can INEC do? Expectedly, some Nigerians are of the belief that INEC ought to seek legal interpretation because the issue is perceived to bother on an erosion of its regulatory function, since the action of the lawmakers by the view of such Nigerians, amounts to self-regulation, whereby people who are affected by a regulatory process are ceasing the powers to regulate how and when to “write their own examinations” by subjecting the scheduling of the electoral process which ought to be one of the regulatory process of elected officials, to instruments within their control – the Electoral Act – and thereby undermining the regulatory powers of the electoral management body by subterfuge.

The EMB is a creation of the Constitution and where the occasion calls for it to defend the powers conferred on it by the Constitution from encroachment, it could do so, as was done in 2002 given the position of the law then; but today, it has been altered. As the electoral umpire, it is incumbent on the EMB to be in charge of determining a level playing field and not participants in the process. Merits/Demerits Over the years, the argument has been that in order to have a level playing electoral field, free of bandwagon effects, whereby on occasions where the Presidential election comes first, there is the possible consequence that most electors wants to be on the victorious side of the outcome of the Presidential election thereby placing all other elections in possible jeopardy or bias, advocates of the latter perception are of the view that the electoral process and outcomes should be allowed to buildup in a bottom-up electoral process with the Presidential election coming last. That way, a rainbow assembly is possible.

In addition, the voting masses would not be psychologically primed to vote in a particular direction since the presidential election would hold last. More, in a polity such as Nigeria’s, where the humongous power of the President is considered one of the weightiest in the world, the ends to which the powers of that office can be put is unlimited. Therefore, any arrangement that would aid a fair process in the eventual election of the holder of such an important office should be encouraged


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