FULL TEXT OF 36 STATES v. FGN OVER ELECTORAL LAW SUIT
In the Supreme Court of Nigeria holden at Abuja on Thursday the 28th day
of March 2002 before their lordships
Muhammadu Lawal Uwais, Chief Justice of Nigeria
Idris Legbo Kutigi, Justice, Supreme Court
Michael Ekundayo Ogundare, Justice, Supreme Court
Emmanuel Obioma Ogwuegbu, Justice, Supreme Court
Uthman Mohammed, Justice, Supreme Court
Umaru Kalgo, Justice, Supreme Court
Akintola Olufemi Ejiwunmi J.U Justice, Supreme Court
C.3/2002
Between:
In the Supreme Court Attorney-General of Abia State and 35 other
plaintiffs
vs
Attorney-General of the Federation defendant
----
JUDGEMENT
(Delivered by I.L. KUTIGI, JSC)
In paragraph 12 of their Amended Statement of Claim, The Plaintiffs'
claims against the Defendant read as follows:
(i) A declaration that no law enacted by the National Assembly can
validly increase or otherwise alter the tenure of office of elected
officers or as Councillors of Local Government Councils in Nigeria
except in relation to the Federal Capital Territory alone.
(ii) A declaration that the National Assembly has no power except in
relation to the Federal Capital Territory alone to make any law with
respect to the following matters or any of them, to wit:
(a) the conduct of elections into the office of Chairmen, Vice Chairman
or Councillors of a Local Government Council in Nigeria
(b) the division of Local Government Areas into wards for purpose of
election into Local Government Councils in Nigeria
(c) the qualification or disqualification of persons as a candidate for
election as Chairman, Vice Chairman or Councillor of a Local government
Council in Nigeria
(d) the date of election into a Local Government Council and (e) the
prescribing of the event upon the happening of which a Local Government
Council stands dissolved or the Chairman or Vice Chairman of a Local
Government Council vacates his office or a Councillor or member thereof
vacates his seat in the Local Government Council.
(iii) A declaration that the National Assembly has no power to make any
law with respect to the qualification or disqualification of candidates
for elections to be held pursuant to the provisions of the Constitution
of the Federal Republic of Nigeria, 1999 without complying with the
requirements of Section 9 of the Constitution of the Federal Republic of
Nigeria, 1999.
(iv) A declaration that save and except for laws for the Federation with
respect to:-
(a) the registration of voters, and
(b) the procedure regulating elections to a Local Government Council.
(v) it is the House of Assembly of a State and not the National Assembly
which has the power to make laws with respect to matters relating to or
connected with elections to the office of Chairman or Vice Chairman of a
Local Government Council in that State or to the office of Councillors
therein.
(vi) A declaration that the provisions contained in Sections 15 to 73
and 110 to 122 of the Electoral Act, 2001 are, from the date of the
commencement of the said Act, inconsistent with the provisions of the
Constitution of the Federal Republic of Nigeria 1999, and are
accordingly null and void and inoperative.
(vii) A declaration that by reason of the provisions of the Electoral
Act 2001 which are inconsistent with the provisions of the Constitution
of the Federal Republic of Nigeria, 1999, the said Electoral Act is
rendered null and void and inoperative in its entirety."
The claims are preceded by the following paragraphs of the Amended
Statement of Claim which I consider relevant. I set them out thus -
3. The Plaintiffs state that the National Assembly, acting pursuant to
its law making powers under section 4 of the Constitution of the Federal
Republic of Nigeria, 1999, considered and passed the Electoral Bill
2001.
6. The Plaintiffs shall at the hearing contend that the Electoral Bill
2001, assented to by the President of the Federal Republic of Nigeria
(hereinafter referred of as "the President") makes provisions for the
following matters:
(i) National Register of Voters and Voters Registration (Part I thereof)
(ii) Procedure at Election (Part II thereof)
(iii) Political Parties (Part III thereof)
(iv) Procedure for Election to Local Government (Part IV thereof)
(v) Electoral Offences (Part V thereof)
(vi) Determination of Election Petitions Arising from Elections (Part
VI) and
(vii) Miscellaneous (Part VII)
9. The Plaintiffs state further that the Constitution in section 4, 5
and 6 respectively, makes provisions for the distribution of
Legislative, Executive and Judicial powers of the Federal Republic of
Nigeria between the Federal Government and the Government of the States.
Sections 7 and 8 of the Constitution similarly make provisions with
regard to the establishment and continuance of Local Government
Councils.
10. The Plaintiffs shall demonstrate that the distribution of the
Legislative powers of the Federal Republic of Nigeria between the
Federal Government and the Government of the 36 States of the Federation
has resulted in the enumeration of matters exclusively reserved for the
Federal Government to legislate upon. Furthermore, the Plaintiffs shall
show that the Constitution enumerates in the Concurrent Legislative List
matters upon which both the Federal Government (through the National
Assembly) and the State Government (through the Houses of Assembly of
the Sates) may legislate. Specifically, the Plaintiffs shall contend as
follows:
(a) By virtue of the provisions of Section 4(2) of the Constitution, the
National Assembly shall have powers to make laws for the peace, order
and good governance of the Federation or any part thereof with respect
to any matter included in the Exclusive Legislative List set out in Part
1 of the Second Schedule to the Constitution.
(b) Subsection 3 of Section 4 of the Constitution provides that the
powers of the National Assembly to make laws for the peace, order and
good governance of the Federation with respect to any matter included in
the Exclusive Legislative List shall, except as otherwise provided in
this Constitution, be to the exclusion of the Houses of Assembly of the
States.
(c) The Constitution further provides that the National Assembly shall
have powers to make laws on any matter in the Concurrent Legislative
List set out in the first column of Part II of the Second Schedule to
the extent prescribed in the second column opposite thereto.
(d) The Plaintiffs state that the power to make laws set out in the
Concurrent Legislative List is in addition and without prejudice to the
powers conferred by subsection 2 of Section 4.
(e) Section 7(1) of the Constitution provides that the Government of
every State shall ensure the existence of Local Government under a Law,
which provides for the establishment, structure, composition, finance
and functions of such Councils.
(f) Item 22 of the Exclusive Legislative List of the Constitution,
empowers the National Assembly to make laws on the Election to the
offices of President and Vice-President or Governor and Deputy Governor
and any other office to which a person may be elected under the
Constitution, excluding to a Local Government Council of any office in
such Council.
(g) Item 32 of the Exclusive Legislative List of the Constitution
empowers the National Assembly to make laws with regard to the
Incorporation, Regulation and winding up of Bodies corporate, other than
Co-operative Societies, Local Government Councils and Bodies Corporate
established directly by any law enacted by a House of Assembly of a
State.
(h) Item 11 of the Concurrent Legislative List grants the National
Assembly power to make Laws for the Federation with respect to the
registration of voters, and the procedure regulating elections to a
Local Government Council.
(i) Section 197(1) of the Constitution established for each State of the
Federation a State Independent Electoral Commission and the powers of
the Commission are set out in Part II of the third Schedule to the said
Constitution.
(j) The Constitution makes elaborate provisions with regard to
qualifications and disqualifications to all elective offices established
by the said Constitution. The Plaintiffs shall show that the Electoral
Bill assented to by the President has introduced fresh qualifications
and ' disqualifying factors other than those provided for by the
Constitution."
The Defendant in its Statement of Defence admitted amongst others
paragraphs 3,6, 9 & 10 (a) - (i) of the Amended Statement of Claim
above.
Paragraphs 2, 3 4, 6 & 7 of the Statement of Defence read as follows:
"2" the Defendant admits paragraphs 2, 3, 4, 5, 6, 7, 8, 9 and 10 (a),
(b ), (c), (d), (c), (f), (g), (h), (I) of the Statement of Claim.
3. The Defendant admits paragraph 10(j) of the Plaintiffs Statement of
Claim only to the extent that the Electoral Bill 2001 assented to by the
President has not contravened the 1999 Constitution with regard to
qualifications and disqualifications to all elective offices'
established by the Constitution.
4. The Defendant denies paragraph 11 of the Statement of Claim and
states that the provisions of the Electoral Bill 2001 assented to by the
President has not altered or frozen the powers specifically assigned to
the Plaintiffs under the 1999 Constitution.
6. The Defendant denies paragraphs 12 of the Plaintiffs Statement of
Claim, and avers as follows:
(i) The Local Government (Basic Constitutional and Transitional
Provisions) Decree No. 36 of 1998 has been expressly repealed by Decree
No. 62 of 1999. Decree No. 36 of 1998 thus ceases to have any effect
whatsoever, any longer.
(ii) Election of Officers into Local Government Councils had taken place
before the commencement of the 1999 Constitution. Accordingly, the
election into the Local Government Councils was not done pursuant to the
provisions of the 1999 Constitution.
(iii) The National Assembly has inherent constitutional powers to
determine the tenure of elected officers in Local Government Councils.
(iv) Sections 110, 112, 113(8) 115(2) and 119 of the Electoral Bill 2001
has not contravened the provisions of the 1999 Constitution, hence the
failure of the Plaintiffs to state the provisions of the 1999
Constitution that were violated by the aforementioned sections of the
Electoral Bill 2001.
(v) Part IV of the Electoral Bill 2001 is consistent with the provisions
of item 11, Part II, 2nd Schedule, of the 1999 Constitution.
(vi) Sections 25(1) and 27 of the Electoral Bill 2001 are clear,
unambiguous and not inconsistent with each other.
(vii) The provisions of Parts, V, V1 and V11 of the Electoral Bill 2001
accord with the Legislative functions of the National Assembly and do
not in any way conflict with the Judicial powers of the Judiciary
defined in Section 6 of the 1999 Constitution.
(viii) The Independent National Electoral Commission shall have power to
register political parties in accordance with the provisions of the
Constitution and an Act of the National Assembly.
(ix) The National Assembly has powers to make laws with respect to the
procedure regulating elections to a Local Government Council, while the
Independent National Electoral Commission shall carry out such other
functions as may be conferred upon it by an Act of the National
Assembly.
7. WHEREOF the Defendant urges the Court to hold:
(a) That the Electoral Bill 2001 assented to by Mr. President is not
inconsistent with the provisions of the 1999 Constitution.
(b) That proper and necessary parties to this action are not before the
Court;
(c) That the Plaintiffs' action lacks merit and is accordingly vexatious
and an abuse of the Court's process.
(d) That the Plaintiffs' action ought to and should be dismissed."
It is thus clear that from the pleadings that the main facts in this
case are not in dispute as they are all admitted.
Clearly when both parties have agreed about a particular matter in their
pleadings, such matter need not be proved
and the Court should accept such an agreed fact as established without
proof (see section 74 of the Evidence Act).
Consequently, at the hearing of the case, neither of the parties led any
evidence in any form whatsoever.
Briefly stated, the Plaintiffs' case is simply that the National
Assembly enacted the Electoral Act 2001 (thereinafter referred to as the
Act) to which the President of the Federal Republic of Nigeria gave his
assent. The Act is divided into seven (7) parts as follows:
(i) Part I - National Register of Voters and Voters Registration
(ii) Part II - Procedure at Election
(iii) Part III - Political Parties.
(iv) Part IV - Procedure for Election to Local Government.
(v) Part V - Electoral Offences.
(vi) Part VI - Determination of Election Petitions Arising from
Election.
(vii) Part vii - Miscellaneous
The Federal Government claimed to have acted in the belief that all the
provisions contained in the Act are on matters with respect to which the
National Assembly is empowered to make laws for the peace, order and
good government of the country. Plaintiffs said that a very careful
perusal of the provision of the Act will reveal that they transgress the
legislative competence of the Federal Government and make serious
incursions into the legislative and executive functions of the
States/Plaintiffs as contained in the 1999 Constitution. The Plaintiffs
said the areas of these incursions by the Defendant are as reflected in
the relief's claimed din their Amended Statement of claim. The
Plaintiffs stressed the point that the dispute or controversy herein did
not depend on the existence or non-existence of the Act as an enactment
of the National Assembly but rather as to the scope or limits of the
legislative powers of the National Assembly itself.
On the other hand, the defendant in its Statement of Defence has denied
vigorously that any provisions of the Act contravenes the provisions of
the 1990 Constitution and that the Act has not frozen or altered the
powers specifically assigned to the Plaintiffs under the Constitution.
In addition, the Act does not contain any provision that threatens the
continued existence of the Federal Republic of Nigeria.
In compliance with the order of Court, the parties filed and exchanged
the briefs of argument. These briefs were adopted at the hearing while
additional oral submissions were made in amplification.
The Plaintiffs in their brief of argument have identified the following
issues as arising for determination in this action -
(i) Whether or not the National Assembly has any power to increase or
otherwise alter the tenure of any of the offices mentioned in Claim (i)
of this action.
(ii) Whether or not the National Assembly has any power to make laws
with respect to the matters specified in Claim (ii) of this action.
(iii) Whether the National Assembly has power to make laws with respect
to the qualification or disqualification of candidates for elections to
be held pursuant to the provisions of the Constitution of the Federal
Republic of Nigeria, 1999 without complying with the requirements of
Section 9 of the Constitution of the Federal Republic of Nigeria, 1999.
(iv) What is the scope or limit of the legislative powers of the
National Assembly with respect to Local Government elections under the
1999 Constitution.
(v) Whether or not the provisions of Sections 15 - 73 and 110 - 122 of
the Electoral Act 2001 or of any of the said Sections are
Constitutional, valid and operative.
(vi) In the light of the answers to questions (i) to (v) whether or not
the Electoral Act, 2001, is unconstitutional, null and void and
inoperative in its entirely (as the Plaintiffs contend) or
constitutional, valid and operative (as the Defendant contends).
(vii) Whether there is any merit in the Defendant's contention that "the
proper and necessary parties are not before the Court."
I observe that issues (i) - (vi) above correspond with the claims or
relief's (i) - (vi) in the Amended Statement of Claim. The extra issue
(vii) is clearly the making of the Defendant, and not strictly part of
the Plaintiffs' claims.
Issue (i) claim (i)
The Plaintiffs, contend that no law enacted by the National Assembly can
validly increase or otherwise alter the tenure of office of elected
officers or as Councillors of Local Government Councils in Nigeria
except in relation to the Federal Capital Territory alone. They said
Section 7(1) of the Constitution directs Government of every State to
ensure the existence of the system of Local Government by a
democratically elected Government Councils under the law providing for
the following in relation to Local Government Councils.
1. Establishment;
2. Structure;
3. Composition;
4. Finance;
5. Functions
That the word "shall" used in the provision compels State Governments to
make laws for the aforementioned purposes. That the provision clearly
implies that it is the State which must be responsible for the tenure of
member of such Councils. That Item 22 on the Exclusive Legislative List
in the Second Schedule to the Constitution places within the exclusive
competence of the National Assembly, the making of legislation for
election of the offices of the President, Vice-President, Governor,
Deputy Governor and any other office to which a person may be elected
under the Constitution. That it specifically excludes for this purpose,
the making of legislation for "election to a Local Government Council or
any office in such Council." It was also submitted that Item 11 on the
Concurrent Legislative List over which both the Federal and Statement
Government have concurrent legislative powers provides that -
"That National Assembly may make laws for the Federation with respect to
the registration of voters and the procedure regulating elections to a
local Government Council."
That Item 12 on the same Concurrent Legislative List makes it clear that
the aforementioned Item 11 does not "preclude the State House of
Assembly form making laws with respect to election to a Local Government
Council in addition to but not inconsistent with any law made by the
National Assembly for the registration of voters and the procedure
regulating elections to a Local Government council.; It was stressed
that the legislative powers conferred on the National Assembly by the
aforementioned provisions of the Constitution are for the limited
purpose of "registration of voters and the procedure regulating
elections to a local Government Council."
Our attention is also drawn to Section 197 of the Constitution which
establishes a State Independent Electoral Commission whose functions are
spelt out in Part II of the Third Schedule, Section 4 of which reads -
"4. The Commission shall have power -
(a) to organise, undertake and supervise elections to Local Government
Councils within the State;
(b) To render such advice as it may consider necessary to the
Independent National Electoral Commission on the compilation of and the
register of voters in so far as that register is applicable to Local
Government elections in the State."
The foregoing provisions emphasise the role of the State Independent
Electoral Commissions in respect of elections to Local Government
Councils within the State as well as highlight the limited role of the
Independent National Electoral Commission. Again pursuant to Section
4(7)(a) of the Constitution, a State House of Assembly is empowered to
make laws with respect to "any matter not included in the Exclusive
Legislative List," therefore subject to the powers conferred on the
National Assembly under the Concurrent Legislative List, all residual
legislative powers with respect to Local Government Councils are subject
to the Constitution vested in the House of Assembly. The court was urged
to hold that it is the House of Assembly of a State and it alone that
has the power to prescribe, increase or otherwise alter the tenure of
the office of elected officers or Councillors of Local Government
Councils other than those in the Federal Capital territory, Abuja. We
were accordingly urged to enter judgement for the Plaintiffs on their
claim (i).
The Defendant in its belief of argument submitted that elections to
offices in Local Government Councils were concluded under the Local
Government (Basic Constitutional and Transitional Provisions) Decree No.
36 of 1998 which made elaborate provisions on matters affecting Local
Government system. That since the elections were not held under the 1999
Constitution, the Constitution did not provide for the tenure of elected
officers of Local Government Councils and that there is no provision in
the Constitution too which empowers a State Assembly to determine the
tenure of elected officers of Local Government Councils. That Decree 36
of 1998 was itself repealed by the Constitution of the Federal Republic
of Nigeria (Certain Consequential Repeals) Decree No. 63 of 1999 and
that by virtue of the provision of section 312(2) of the Constitution,
elected council officials shall be deemed to have been duly elected
under the Constitution. That Item 22 on the Exclusive Legislative List
should be read together with items 11 & 12 on the Concurrent Legislative
List and that the legislative power of the National Assembly to make
laws on the procedure regulating elections include the power to
legislate on tenure and or when there will be an election. I reject his
latter submission outright.
Now, Section 7(1) of the Constitution reads thus -
"7(1) The system of Local Government by democratically elected Local
Government Councils is under the Constitution guaranteed; and
accordingly, the Government of every State shall, subject to Section 8
of this Constitution, ensure their existence under a Law which provides
for the establishment, structure, composition, finance and functions of
such Councils."
Item 22 in the Exclusive Legislative List also states -
"22. Election to the offices of President and Vice-President or Governor
and Deputy Governor and any other office to which a person may be
elected under the Constitution,, excluding election to a Local
Government Council or any office in such Council."
Items 11 and 12 in the Concurrent Legislative List again read -
"11. The National Assembly may make laws for the Federation with respect
to the registration of voters and the procedure regulating elections of
a Local Government Council."
"12. Nothing in paragraph 11 hereof shall preclude a House of Assembly
from making laws with respect to a Local Government Council in addition
to but not inconsistent with any law made by the National Assembly.
All the above provisions are to me clear and unambiguous. They should
therefore be read ordinarily and given their ordinary meaning. The
Plaintiffs' case appears to me to have been built on a very strong
foundation unlike that of the Defendant.
It is evident that the Defendant has no answers to the solid points of
Constitutional law relied upon by the Plaintiffs.
I find all the submissions of learned senior counsel for the Plaintiffs
above correct and I accept them. The confusion of introducing spent
Decrees into the issue by the Defendant's counsel is rather misguided.
In fact the Court intimated counsel at the hearing that since the
relevant Decree 36 of 1998 had been repealed, Section 6(1)(c) of the
Interpretation Act (an existing law by ;virtue of the provision of
Section 315 of the Constitution) provides that:
"6(1) The repeal of an enactment shall not -
(c) Affect any right, privilege, obligation or liability accrued or
incurred under the enactment."
This in effect means that the 3 year tenure prescribed by Decree 36 of
1998 for elected Local Government Officials remains intact.
I therefore enter judgement for the plaintiffs on their claim (i) and
declare that no law enacted by the National Assembly can validly
increase or otherwise alter the tenure of office of elected officers or
as Councillors of Local Government Council except in relation to the
Federal Capital Territory alone.
Issue (ii) Claim (ii)
The Plaintiffs adopt their arguments in respect of issue (i) claim (i)
above and emphasized that the National Assembly has no power to enact
laws with respect to the conduct of elections into the office of
Chairman, Vice Chairman or Councillors of a Local Government Council
except the power to make laws with respect to "the registration of
voters and the procedure regulating elections to a Local Government
Council", which is itself predicated on the existence of laws with
respect to elections generally."
The defendant, in fact, argued or treated Plaintiffs' claims (i), (ii),
(iii) and (iv) together in its brief under Question one. So what was
said in respect of claim (i) above will apply here. Plaintiffs' claim
(ii) however is in five parts (a) - (e). I will therefore answer them
one after the other as follows:
(ii) (a) The National Assembly has no power except in relation to the
Federal Capital Territory alone, to make any law with respect to conduct
of elections into the Office of Chairman, Vice Chairman or Councillors
of a Local Government Council except the power to make laws with respect
to the registration of voters and the procedure regulating elections to
a Local Government Council.
This is refused as it seems to relate to procedure of elections.
(b) The National Assembly has no power except in relation to the Federal
Capital Territory alone, to make any law with respect to the division of
a Local Government Area into wards for purposes of election into a Local
Government Council.
(c) The National Assembly has no power except in relation to the Federal
Capital Territory alone to make any law with respect to the
qualification or disqualification of a person as candidate for election
as Chairman, Vice Chairman or Councillor of a Local Government Council.
(d) The National Assembly has no power except in relation to the Federal
Capital Territory alone, to make any law with respect to the date of
election into a Local Government Council.
(e) The National Assembly has no power except in relation to the Federal
Capital Territory alone to make any law in respect of the prescribing of
an event upon the happening of which a Local Government Council stands
dissolved or the Chairman or Vice Chairman of a Local Government Council
vacates his office or a Councillor or member thereof vacates his seat in
the Local Government Council.
(b)-(e) therefore succeed.
Issue (iv) Claim(iv)
I think having regard to the submissions by the Plaintiffs' counsel on
the issues above as well as the Defendant's reply on them, it will be
convenient to deal with Plaintiffs claim (iv) here immediately since the
claim relates to the scope or limit of the legislative powers of the
National Assembly with respect to Local Government elections in the
States under the Constitution. In the light of what I have said above, I
believe this claim too must succeed..
Issue (iii) Claim (iii)
The Court was urged to hold that the National Assembly cannot amend the
provisions for qualification and disqualification of candidates as
contained in the Constitution and that in accordance with the well
established principles of constitutional law, if a legislature enacts a
law in identical terms with what has already been enacted by another
legislature whose enactments have superior legislative force, then the
enactment of the subordinate legislature is void or at least
inoperative. The case of ATT. GEN OF OGUN STATE V. ATT. GEN. OF THE
FEDERATION (1982) 13 NSCC 1 at 11 per Fatai-Williams CJN was cited in
support.
The Defendant said that because the National Assembly has the power to
make law for peace, order and good government for the Federation, it is
in the discharge of the constitutional duty imposed on it by Section 4
of the Constitution that Section 25 of the Act was enacted to ensure
orderliness and peace at elections which are indispensable conditions
precedent to the attainment of a good government and none of the
provisions of the Constitution has been violated by the Act.
I accept the submissions of learned senior counsel for the Plaintiffs
and reject that of the Defendant.
Issue (iii) claim (iii) therefore succeeds. It is therefore hereby
declared that the National Assembly has no power to make any law with
respect to the qualification or disqualification of candidates for
elections to be held pursuant to the provisions of the Constitution
without first of all complying with the requirements of Section 9 of the
Constitution.
Issue (v) claim (v)
Here the Court is required to declare that the provisions contained in
Sections 15 to 72 (Part II) and Sections 110 to 122 (Part IV) of the
Electoral Act, 2001 are from the date of commencement of the said Act
inconsistent with the provisions of the Constitution and are accordingly
null and void and inoperative.
The Plaintiffs contended that in enacting the Electoral Act, the Federal
Government proceeded with that exercise as if the word "excluding" in
Item 22 of the Exclusive Legislative List is replaced by the word
"including" and proceeded to treat the legislative powers of the
National Assembly with respect to Presidential and Gubernatorial
elections as if they were co-extensive with its powers over Local
Government elections. For this reason therefore parts II and IV of the
Act must be treated as void on the ground of inconsistency with the
Constitution. That even if some of the provisions are good in so far as
they apply to Presidential and Gubernatorial elections, those provisions
which purport to apply to Local government Councils are bad and that
this is not the type of situation to which the blue pencil rule can be
applied for the simple reason that one cannot sift the bad from the
good. The case of BALEWA v. DOHERTY (1963) 1 WLR 949 at 960 per Lord
Devlin was cited in support.
I have recorded elsewhere that the Defendant is of the view that none of
the provisions of the Act has contravened any of the provisions of the
Constitution and that the National Assembly only acted in exercise of
the powers conferred on it by the Constitution to make law for peace,
order and good government of the country.
Part II of the Act (Sections 15 to 73) is made up of 59 sections while
Part IV (Sections 110 to 122) is made up of 13 sections, excluding the
various subsections and paragraphs contained in both parts. One will
therefore, have to go through the various sections,. Subsections and
paragraphs one by one (unless where they may conveniently be lumped
together), in order to be able to determine exactly whether or not any
of them has breached any of the provisions of the Constitution and
therefore null and void and inoperative.
1. Where the provision in the Act is within the legislative competence
of the National Assembly as provided in the Constitution and it has not
already been provided for in the Constitution, the provision will be
regarded as valid.
To carry out this exercise, I will be guided by the following
considerations :
2. Where the provision in the Act is within the legislative powers of
the National Assembly but the Constitution is found to have already made
the same or similar provision, then the new provision will be regarded
as invalid for duplication and or inconsistency and therefore
inoperative. The same fate will befall any provision of Act which seeks
to enlarge, curtail or alter any existing provision of the Constitution.
The provision or provisions will be treated as unconstitutional and
therefore null and void.
3. Where the provision in the Act relates to the election to the offices
of Chairman, Vice Chairman, and Councillors of Local Governments, unless
it is in respect of the registration of voters or the procedure
regulating elections to a Local Government Council, the provision will
be treated as unconstitutional and therefore null and void.
It is now time to commence the exercise.
PART II (SECTIONS 15 TO 73 OF THE ACT)
Section 15
Many of its provisions are duplication of the Constitutional provisions
relating to the election into the office of the President, members of
the National Assembly, Governors and members of the Houses of Assembly.
Many of its provisions also pertain to election to the office of
Chairman, Vice Chairman and Councillors of Local Government Council
which are inconsistent with Item 22 on the Exclusive Legislative List
discussed earlier in this judgement. I have therefore no hesitation
whatsoever in coming to the concluding that the entire section is void
for duplication, inconsistency and lack of legislative competence. The
Section is accordingly struck out.
Section 16
The section deals with the postponement of elections. As far as the
Local Government Councils are concerned this can be regarded as part of
the procedure regulating elections. The Plaintiffs have not urged
anything specifically against the section. The section is accordingly
upheld as valid.
Sections 17, 18, 19, 20, 21 & 22
These sections are taken together simply because of inconsistency with
the existing provisions of the Constitution. The National Assembly is
incompetent to repeal in a law things like qualification and
disqualification of candidates for elections already provided for in the
Constitution. Many provisions pertaining to Local Government elections
are also not matters of procedure. All the sections are clearly
incompetent. They are all struck out.
Section 23, 24 & 25
Many of the existing provisions of the Constitution have been repeated.
Matters pertaining to Designation of Public Buildings as Polling Station
must be left to the Independent National Electoral Commission (INEC) to
handle and not strictly a matter for legislation. Section 25 in
particular which relates to submission of list of candidates and their
affidavits by political parties to the Commission is clearly an
amendment to the Constitution. It is unconstitutional. All these
sections are hereby struck-out for duplication, inconsistency and want
of legislative competence.
Sections 26, 27, 28, 29 & 30
These sections appear to deal only with procedure to regulate elections
only. The Plaintiffs have not urged anything seriously against these
sections. They are accordingly upheld as valid.
Sections 31 - 73
These sections would appear largely to have concerned themselves with
the procedure regulating elections at all levels including Local
Government Councils as already discussed above. Anything outside that
will be unconstitutional as far as Local Government Councils are
concerned. I also believe that National Assembly can legislate for the
entire country that a particular election must hold the same day
throughout the country as stated in Section 42. All the provisions or
sections are therefore upheld.
PART IV (Sections 110 to 122 of the Act)
This part of the Act is supposed to have dealt with procedure for
election to Local Government Councils.
Section 110
Section 110 purports to give the State Independent Electoral Commission
powers already conferred on it by the Constitution. This is clearly a
duplication of the provisions of the Constitution and therefore
inoperative. The proviso is unconstitutional while subsection 2 is not
on a matter of procedure. The section is therefore struck-out.
Sections 111, 112, 113, 114 & 115(1) - (6)
These are again not on procedural matters pertaining to elections. The
National Assembly therefore lacks the necessary legislative power to
have enacted those sections as explained earlier in this judgment. They
are all null and void. They are struck-out.
Sections 116, 117, 118(1) - (8)
I have no difficulty in holding that these provisions pertain to
procedure regulating elections to Local Government Council. They are
therefore valid and I so hold. The provision of Section 118(8) cannot
however be said to be procedural. It is therefore incompetent and is
struck-out.
Sections 119, 120, 121 & 122
Clearly too these sections cannot be said to have dealt with the matters
of procedure regulating elections to Local Government Councils. Some of
the provisions in Section 121 are in fact already in he Constitution.
The National Assembly lacks legislative power to enact these sections.
They are unconstitutional, inoperative, null and void. They are hereby
struck-out.
It is perhaps now time to state that the Electoral At is supposed to
have dealt with all elections both at the Federal, State and Local
Government levels. But as I have demonstrated above, all provisions in
respect of Federal elections unless already provided for in the
Constitution or where it is sought to change alter or amend the
Constitutional provision or where there is no power at all, the
provision will be treated valid except those in respect of Local
Government Councils which must not go beyond provision for registration
of voters and or the procedure for regulating elections to the Local
Governments. As a result of this the Electoral Act as a whole is a
mix-up, a confusion, because the National Assembly seemed to have
treated its legislative powers with respect to Federal elections as if
they were co-existence with its powers over Local Government elections.
They were wrong. I have shown above that a few provisions of the Act are
good but quite a large number of them are bad and had been stuck-out.
For the foregoing reasons the Plaintiffs' claim (v) succeeds in part
only and I declare as follows:
The provisions contained in Sections 15 to 73 and 110 to 122 except
sections 16, 26 to 41, 43 to 73, 116,117 and 118(1)-(7), of the
Electoral Act are from the date of the commencement of the Act
inconsistent with the provisions of the 1999 Constitution and are
accordingly null and void and inoperative.
Issue (vi) Claim (vi)
The Plaintiffs contend that in the light of the answers to issues (i) to
(v) above, the Court should examine the remaining portions of the Act
not affected by the decision which nullified parts of the Act on the
ground that they are unconstitutional and void, to see whether the
remaining portions still remain operative. It was submitted that what is
left of the Act when all the portions attacked are expunged, cannot be
allowed to stand and so the Act ought to be struck-out in its entirety.
The short answer to this is that the Plaintiffs had only attacked two
parts (Parts II and IV) out of a total of seven parts (Parts I-VII) of
the Act. And even then not all sections of the two parts attacked were
struck-out. Quite a number of the sections attacked have been upheld as
Constitutional and therefore valid. That much is made clear in our
declaration in respect of claim (v) above where the valid sections are
excluded form the declaration made.
Claim (vi) therefore fails and it is dismissed.
Plaintiffs' issue (vii) is whether there is any merit in the Defendant's
contention that the "proper and necessary" parties are not before the
Court. This is certainly not a claim by the Plaintiffs. I note that the
point was pleaded by the Defendant in its pleadings only. It is not one
of the issues raised by the Defendant on pages 1 & 2 of its brief. It
must be deemed to have been abandoned. It is accordingly struck-out.
Plaintiffs' claim (i), (iii) and (iv) therefore all succeed completely,
while claims (ii) and (v) succeed in part only.
Claim (vi) fails and it is hereby dismissed.
In summary and in conclusion it is declared as follows -
No law enacted by the National Assembly can validly increase or
otherwise alter the tenure of office of elected officers or as Chairmen
and Councillors of Local Government Councils in Nigeria except in
relation to the Federal Capital Territory alone.
2. (a) The National Assembly has no power except in relation to the
Federal Capital Territory alone to make any law with respect to the
following matters or any of hem, to wit:
(b) The division of Local Government Areas into wards for purposes of
election into Local Government Councils in Nigeria;
(c) The qualification or disqualifications of persons as a candidate for
election as Chairman, Vice Chairman or Councillor of a Local Government
Council in Nigeria;
(d) The date of election into a Local Government Council, and
(e) The prescribing of the event upon the happening of which a Local
Government Council stands dissolved or the Chairman or Vice Chairman of
a Local Government Council vacates his office or a Councillor or member
thereof vacates his seat in the Local Government Council.
The National Assembly has no power to make any law with respect to the
qualification or disqualification of candidates for elections to be held
pursuant to the provisions of the Constitution of the Federal Republic
of Nigeria 1999 without complying with the requirement s of Section 9 of
the Constitution of the Federal Republic of Nigeria, 1999.
Save and except for the laws for the Federation with respect to:
a. The registration of voters, and
b. The procedure regulating elections to a Local Government Council.
It is the House of Assembly of a State and not the National Assembly
which has the power to make laws with respect to matters relating to or
connected with elections to the office of Chairman or Vice Chairman of a
Local Government Council in that state or to the office of Councillors
therein.
The provisions contained in Section 15 to 73 and 110 to 122 except
Sections 16, 26 to 41, 43 to 73, 116, 117 and 118(1)-(7) of the
Electoral act, 2001 are from the date of the commencement of the Act
inconsistent with the provisions of the 1999 Constitution and are
accordingly null and void and inoperative.
