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Re-visiting the Electoral Act 2002 case
 

By

Ben Nwabueze

culled from GUARDIAN , April 2, 2004

THE Nigerian public appears not to be sufficiently informed about the Court of Appeal decision on the Electoral Act 2002 Case, and about what happened to the appeal against that decision lodged in the Supreme Court by the National Assembly under the leadership of the former Senate President Senator Pius Anyim. After nearly one year since the April/May 2003 elections when the new administrations at both the Federal and state levels are now firmly in the saddle and face hardly any danger of dislodgement, the time seems now appropriate to re-visit that case.

The facts, briefly stated, were as follows. The Electoral Bill 2002 was duly passed by each House of the National Assembly in February 2002, and presented to the President on June 24, 2002 for his assent, which he failed to give within the thirty days prescribed by Section 58(4) of the Constitution (1999). After the expiration of the thirty days, he returned the Bill to the Assembly with reasons why he was withholding his assent to it. The Senate on September 25, 2002 and the House of Representatives on the following day purported to override the President's veto by motion passed by two-thirds majority of members present, members present being 55 in the Senate and 204 in the House of Representatives, as against their total membership of 109 and 360 respectively.

The plaintiff in the court of first instance, the Independent Electoral Commission (INEC), who was the 3rd Respondent in the appeal before the Court of Appeal, had claimed, inter alia, for a "declaration that the Electoral Act 2002 is unconstitutional, null and void and of no legal effect whatsoever."

Based on the facts as stated above, the Court of Appeal, in a lead judgement by Oguntade JCA (whose nomination as justice of the Supreme Court is now before the Senate for confirmation) and in which Muhammad and Oduyemi JJCA concurred, held that "what the appellant did was merely to pass a motion for veto override,' and that this was clearly "not in consonance with Section 58(5)" (p.9 of the cyclostyled judgment, emphasis supplied), which provides 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." According to Oguntade JCA, re-affirming his ruling above, "the appellant was not following Section 58(5) of the Constitution when instead of passing the Bill again, it merely made a motion called "motion of veto override" (at p.10). He further held that the National Assembly was not "properly constituted' at the time it purported to override the President's veto in that the majority used for the purpose was only two-thirds majority of members present in each House, instead of two-thirds majority of the entire membership.

Following upon these findings of facts and the rulings based on them, Oguntade JCA then held as follows: "In the exercise of this court's discretion in the grant of declaration, I decline to grant" the declaratory relief sought (at p.13). The ground for so holding is stated to be that, since the Electoral Act 2002 "is now being used for the 2003 National Elections" "to declare it unconstitutional and strike it down at this stage may lead to a widespread disruption of national life while not conferring any advantage on the 3rd Respondent. It seem to me satisfactory enough that the 3rd Respondent has obtained a vindication for its rights and in the process enabled this court to express its views as to the procedure to be followed when overriding a Presidential veto in the lawmaking process. It is not in my view necessary to strike down the law. The offending Section 15 has been struck out (at pages 12-13).

From these rulings and decision of the Court of Appeal, the National Assembly under the leadership of the former Senate President, Senator Pius Anyim, appealed to the Supreme Court, raising three main issues for the determination of the apex court, viz:

1. Whether the Court has any discretion to decline to grant a declaration of nullity for unconstitutionality in respect of a law (or other governmental act) found by it to be inconsistent or not in consonance" with the constitution, either with its substantive provisions or those relating to the procedure for lawmaking.

2. Whether the nullity of the Electoral Act 2002 does not render null and void the April/May 2003 general elections conducted under it.

3. Whether the Court of Appeal is justified in declining to declare the Electoral Act 2002 unconstitutional and void because to do so, after it has been used to conduct the April/May 2003 general elections, may lead to widespread disruption of national life.

Whether the court has any discretion to decline to grant a declaration of nullity for unconstitutionality in respect of a law (or other government act) found by it to be inconsistent or not in "consonance" with the provisions of the Constitution.

Having found that the Electoral Act 2002 was not in "consonance" with the Constitution as regards the manner and procedure used in enacting it, the Court of Appeal has no discretion to refuse to grant a declaration of nullity for unconstitutionality as sought in INEC (the plaintiff/3rd respondent). Given a ruling by the Court that the Act is not in "consonance" with the Constitution, such a discretion in the Court is itself unconstitutional in view of Section 1(3) of the Constitution which DECLARES void "any other law inconsistent with the provisions of this Constitution, "Consonant" is defined in New Webster's Dictionary of the English Language as "consistent with" "in agreement."

The unconstitutionality of such a discretion assumed by the Court of Appeal in this case is well underscored in the book, Judicialism (1977) by B. O. Nwabueze, in a passage which is so clear upon point:

"The duty of the court to adjudicate violations of the Constitution is based upon the premise of the constitution as law, and law of a superior force. The supremacy of superiority of the law of the Constitution means that it overrides any inconsistent law, which is to say the constitution makes an implied declaration of invalidity against any such law. In most Commonwealth African Constitutions, the declaration is not a matter of implication. It is expressly declared that any law is void to the extent that it is inconsistent with the constitution. This is reinforced by the express vesting in the Court of power to interpret the Constitution. From the constitutional declaration of invalidity arises an obligation on the part of the court to echo it and apply it in all cases of justiciable violation properly brought before it, notwithstanding anything to the contrary in the general law or remedies relating to declaratory judgement. If, to use an extreme example, a statute forbids the courts to make declarations of invalidity against governmental measures which are inconsistent with the constitution, this would conflict with the declaration in the constitution, and the court would be obliged, under the syllogism of Marbury V. Madison, to apply the constitution and disregard the statute.

"It cannot be for nothing that the constitution, having imposed limitations and prohibitions on government, couples it with a declaration of invalidity against governmental acts transgressing those limitations and prohibitions. The declaration of invalidity contained in the Constitution must have some significance. It is intended to, and, it is submitted, does confer upon any person whose rights are violated or threatened with violation by an unconstitutional governmental act, a right to apply to the court to administer and enforce the declaration expressly provided in the constitution itself..... Upon such an application the court is obliged to pronounce upon the question of constitutionality. The declaration embodied in the Constitution is thus direction to the court to apply and enforce it upon the application of a person adversely affected by an unconstitutional governmental act" (at pages 109-110).

What this means is that once the court rules that a law is inconsistent or not in "consonance" with the Constitution, the nullity of the law follows inexorably from the declaration of invalidity in Section 1(3) of our Constitution, and the Court is obliged, and has no discretion but to echo the declaration of invalidity in the subsection.

The view that a court has a discretion to decline to grant a declaration in respect of a law found by it to be inconsistent or not in "consonance" with the Constitution is, with the greatest respect, manifestly subversive of the declaration of invalidity against such law contained in section 1(3) of our constitution above. As Chief Justice John Marshall said in Cohen v. Virginia 19 US 264 at 404 (1821):

"we have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the Constitution."

The court cannot decline to exercise jurisdiction to grant a declaration of invalidity against a law found by it to be inconsistent with the Constitution on the ground that the matter involved is "prickly", "hypersensitive" or because "it is impolitic or inexpedient" to do so, or because, in Justice Oguntade's words in the present case, it is not in my view necessary to strike down the law" or that striking it down "may lead to a widespread distruption of national life." Whatever risks or disruption of national life may be attendant upon nullification of a law found by the court to be inconsistent with the Constitution, "we must decide it if it be brought before us" - per John Marshall CJ in Cohen v. Virginia, ibid.

Being the only remedy constitutionally ordained in express terms in the constitution (apart from the relief constitutionally ordained for violations of the guaranteed rights) the declaratory judgment for the violations of the Constitution is thus unlike other remedies - damages, injunction, prohibition, mandamus, certiorari; these latter are not constitutionally ordained, and may be limited or even taken away by law. The declaratory judgment has indeed a very wide scope which should not, in cases raising a question of invalidity on the ground of inconsistency with the constitution, be whittled down by importing into its exercise the discretion which the court exercises in granting or refusing it in ordinary, non-constitutional litigation (see decisions cited and relied upon by Oguntade JCA). "Its wide scope coupled with its amicable character and its avoidance of the language of compulsion and command of coercive remedies, which is calculated not to excite government antagonism, the simplicity and cheapness of the procedure, and above all its effectiveness has made the declaratory judgement the 'most ubiquitous (and) perhaps the most generally useful of the remedies' against public authorities" - Nwabueze, ibid p.123.

Whether the nullity of the electoral act 2002 does not render null and void the April/May 2003 general elections conducted under it.

The law on this point is stated as follows by Lord Denning in his famous pronouncement delivering the judgment of the Judicial Committee of the Privy Council in Macfoy v. United Africa Co. Ltd. (1961) 3 WLR 1405 at pp. 1409 - 1410 (appeal from the West African Court of Appeal):

"If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the Court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is rounded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse. So will this judgment collapse if the Statement of Claim was nullity. (emphasis supplied).

Lord Denning's statement of the law on the point was echoed by Oputa JSC in Adejumo v. Ayantegbe (1989) 3 NWLR (pt. 110) 47 at p. 451. Said he:

"If a transaction is void, it is in law a nullity, not only bad, but incurably bad and nothing can be founded on it, for having n life of its own, it cannot vivify anything." (emphasis supplied).

It follows that the April/May 2003 general elections, being a proceeding or act founded on a law that is a nullity, are themselves a complete nullity.

Lord Denning's statement of the law also makes it impermissible to argue that a decree of nullity given by the court after the April/May 2003 general elections cannot operate retrospectively to nullify those elections. This position does not rest solely on inference from Lord Denning's pronouncement quoted above. For, as laid down by the decisions of our Courts, the nullity of law or other act takes effect, not from the date of the Court's decree declaring it a nullity, but from the date of its enactment or completion; in the language of the law, it is void ab initio: see, e.g. Busby v. Nabham (1947) 14 WACA 229.

Weather the Court of Appeal is justified in declining to declare the Electoral Act 2002 unconstitutional and void because to do so, after it has been used to conduct the April/May 2003 general elections, may lead to a widespread disruption of national life.

There is a distinction that needs to be made at the outset. The nullity of the April/May 2003 general elections is a purely legal issue flowing consequentially and inexorably from the nullity of the Electoral Act 2002 under which the elections were conducted, and must be distinguished from the issue of fact as to the impact on society - the possible social chaos and widespread disruption of national life - which may follow the nullification of the Act and the elections by the court.

This issue of fact about the possible social impact of nullifying the Electoral Act and the elections was not raised and argued by counsel before the trial court. It was not, and could not have been raised and argued because no factual basis for doing so existed at the time viz. the fear that to declare the Electoral Act 2002 unconstitutional and void, after it has been used to conduct the April/May 2003 general elections, might "lead to a widespread disruption of national life". No such fear could have been entertained at the time. From the facts found by the Court of Appeal, the suit was filed on October 7, 2002, argued on November 5, 2002 and judgement delivered on November, 29 2002 by the trial judge, i.e. more than five months before the general elections on April 12 and 19, 2003 and May 4, 2003. So, the fear that, to declare the Act unconstitutional and void after it has been used to conduct the elections "may lead to a widespread disruption of national life" was not an issue before the trial court. There was thus no factual basis for the fear, since the Act had not yet been used to conduct the elections, which were then more than five months away. It was at the time entirely imaginary and speculative.

Nor could the fear have been raised in the notice and grounds of appeal or in the Briefs of Argument filed in the Court of Appeal or at the hearing of the appeal, since all these processes must have taken place before the elections, although the judgments in the court give no indications as to the dates they took place. Thus, the issue not being before the Court of Appeal for determination, there was no legal warrant whatsoever for the statement by Oguntade JCA in his lead judgment, dated May 12, 2003 that, since "the said law is now being used for the 2003 National Elections" "to declare it unconstitutional and strike it down at this stage may lead to a widespread disruption of national life" - at p. 12 of the cyclostyled judgment. In a language somewhat less guarded and less in tune with the principal of justice according to law, Oduyemi JCA rests his refusal to declare the Act unconstitutional and void "on reasons of public policy and in order not to destabilise the Nigerian polity," saying that since the Act was "used for the recently concluded elections, the interest of the nation would best be served by not making the Declaration" of nullity sought by the plaintiff - p.29. With the greatest respect, the statement, being a statement on an issue of fact not raised for determination before the court by the parties, is altogether beside the point and irrelevant, and should be disregarded; at best, it is a more obiter dictum. The only ratio decidendi is that stated at p. 13 of the cyclostyled judgment, namely that the refusal by the court to declare that Act unconstitutional and void, as prayed by the plaintiff (INEC), is pursuant to "this court's discretion in the grant of declaration", citing as authority for the discretion Agbaje v. Agboluaje (1970) 1 ALL NLT 21 (SC) Ewarami v. ACB Ltd. (1978) 4 SC 108.

As earlier stated, the court's discretion to grant or refuse a declaration in ordinary, non-constitution, cases is completely taken away by Section 1(3) of the Constitution, which by itself declares void, any law that is inconsistent with its provisions, leaving to the court a discretion only as to whether or not a law is inconsistent with the provisions of the Constitution, then, its nullity flows inexorably from Section 1(3), and the court has the duty (not a discretion) to echo and enforce the declaration of nullity made by section 1(3).

It may be that Oguntade JCA had in mind the doctrine of state necessity when he said that, since "the law is now being used for the 2003 National Elections", "to declare it unconstitutional and strike it down at this stage may lead to a widespread disruption of national life", although the conditions for the application for the doctrine and whether those conditions exit in the present case as well as the authorities on it were not considered in the judgment. For this reason, a discussion of the doctrine seems uncalled for here. But it should nevertheless be stated, on the basis of the authorities, that the mere likelihood of widespread disruption of national life does not bring the doctrine into play. It would be strange indeed to suggest that the courts can throw the cloak of legality over a law so patently unconstitutional and void, simply because a widespread disruption of national life might otherwise occur.

Among the conditions for the application of the doctrine laid down in the decided cases is that it does not operate from outside the law; it is an implied term of the law of the constitution. From this underlying premise for its application, it follows that the doctrine cannot be invoked to modify the express provisions of the law of the constitution. And where such provisions are couched in prohibitory terms, the application of the doctrine will necessarily result in the nullification of overriding of those prohibitions, contrary to the conception underlying the doctrine, which is that it does not nullify express law.

Thus, where in the situation arising from the Unilateral Declaration of Independence (UDI) in Rhodesia (now Zimbabwe) by Ian Smith and his white gang, the British Government, by a 1965 Order-in-Council, made pursuant to an Act of Parliament enacted earlier the same year, declared "void and of no effect", "any law made, business transacted, steps taken or function exercised in contravention of the provisions" of the Order-in-Council by the Smith regime, the Judicial Committee of the Privy Council held that the need to avoid total chaos in society "cannot justify disregard of legislation passed or authorised by the United Kingdom Parliament, by the introduction of a doctrine of necessity which in their Lordships' judgment cannot be reconciled with the terms of the Order-in-Council" Madzimbamuto's Case (1969) 1 AC 645 at p. 729, per Lord Reid delivering the opinion of the Privy council. So also the fear of widespread disruption of national life cannot, for reasons of state necessity, justify disregard by the court of the express provision in Section 1(3) of the Nigerian Constitution which declares void, any law that is inconsistent with its provisions. For the conditions governing the application of the doctrine of state necessity and the judicial decisions on it from various jurisdictions in the words, see B. O. Nwabueze, Constitutionalism (1973), pp. 180 - 214; Judicialism (1977), pp.155-186.

After the inauguration of the newly elected National Assembly, the new leadership of the Senate instructed counsel to discontinue the appeal against the Court of Appeal decision lodged in the Supreme Court by its predecessor in office. On application by counsel for discontinuance pursuant to the National Assembly's instruction, the Supreme Court struck out the appeal. And so, the matter died, or rather, was killed.