AGF in court battle over Electoral Bill

The Attorney General of the Federation (AGF) and Minister of Justice, Abubakar Malami (SAN), Tuesday commenced the legal battle in the Electoral Amendment Bill suit with a swipe at the National Assembly, accusing the legislature of threatening and intimidating the judiciary.
The AGF, who is the second defendant in the suit instituted by Accord Party attempting to stop the legislature from overriding President Muhammadu Buhari’s veto of the amendment bill, decried what he described as the constitutional colouration being attached to the suit, adding that it underscores why he was physically in court to respond to the suit.
Last week, Justice Ahmed Mohammed had in a ruling restrained the National Assembly from overriding the president’s refusal to assent to the amended electoral bill.
The order was a sequel to an oral application for interlocutory injunction argued by the plaintiff’s (Accord Party) counsel, Wole Olanipekun (SAN).
But in reaction to the injunction granted by the court, the Senate decried the restraining order, saying it negated the principle of separation of powers enshrined in the Nigerian Constitution.
It also said it would send a petition to the Chief Justice of Nigeria (CJN), Justice Walter Onnoghen, to complain against the restraining order granted by Justice Mohammed, among other similar injunctions granted by the judiciary against the National Assembly.
However, as of Tuesday, the Senate was yet to make good its threat to submit a petition against the judge to the CJN.
Justice Mohammed, in granting the preservative order, had ordered the defendants to maintain status quo ante belum, pending the next adjourned date Tuesday.
Speaking at the proceedings Tuesday, Malami, who had aligned with the position of other counsel on the need to accord importance to the case, accused the National Assembly of intimidating and threatening the judiciary.
He said he was disturbed by the first defendant’s (National Assembly) comment that the judiciary was in the eye of the storm when it is actually the judiciary that was being threatened and intimidated by other arms of government.
“I have to state that threats and intimidation by one arm of government against another concerning this matter are unfortunate.
“We have a collective duty to support the entrenchment of the principle of separation of powers and in support of the judiciary in the discharge of its duties.
“The independence of the judiciary is constitutionally guaranteed and we must work hard to ensure that independence is sustained,” he said.
Earlier, the plaintiff’s counsel told the court that owing to the importance and urgency of the suit, the parties had agreed to move straight to the subject matter of the originating summons.
He then asked the court for a short adjournment to enable the parties to respond to his brief of argument filed on March 19, 2018.
He noted that since the court had granted the plaintiff’s request for an order restraining the first defendant from taking any step that would affect the res of the matter, the issue has continued to generate interest.
“Unfortunately, this has been misinterpreted in different quarters, including by the first defendant that the court made an order preventing the first defendant from carrying out its legislative duties,” he said.
Olanipekun was of the opinion that parties should be properly guided so that the subject matter of the litigation is not hijacked from the court.
Responding, the counsel to the National Assembly, Joseph Daudu (SAN), stressed that the matter, which was already a matter of international discussion, was capable of defining the well being of the country’s democracy, noting that the suit had again placed the judiciary in the eye of the storm.
He therefore urged the court to give the matter the seriousness and speed it deserves.
On his part, counsel to the third defendant (Independent National Electoral Commission), Femi Falana (SAN), urged the court to ignore the threats and other comments made outside the court, in order to avoid being drawn into an unnecessary controversy.
He also urged the court not to shut out the motion of the Action Peoples Party (APP) seeking to be joined in the matter so that the court would not be accused of intimidation.
Earlier, at the resumed hearing, one Okere Kingdom had announced his appearance as counsel for the APP to be joined in the suit as the fourth defendant.
His application was initially objected to by the plaintiff and other defendants. However, Justice Mohammed, in a brief ruling, held that the motion should be heard.
Kingdom, in arguing the motion, said his client, as a registered political party would be affected one way or the other by the court’s decision.
The applicant, in a 17-paragraph affidavit, claimed that the subject matter of litigation would affect its chances during the elections.
But the plaintiff and the first to third defendants urged the court to dismiss the application on the grounds that it was defective and not in compliance with the rules of the court.
Delivering ruling, Justice Mohammed agreed with the submissions of the plaintiff and the first to third defendants and consequently dismissed the application.
He held that the first defendant was competent in defending the suit and did not need to be joined by any party.
Justice Mohammed further ruled that the mere fact that the applicant is a political party does not qualify it to be joined in the suit.
He, however, gave the other defendants two days to file their responses, while the plaintiff was given till Friday to reply.
The judge consequently adjourned the case till Monday 26 for hearing on the substantive suit.
The Accord Party had dragged the National Assembly, the AGF and INEC to court after the president refused to assent to the Electoral Amendment Bill, 2018.
The party had expressed fears that the legislature could override the president’s veto and pass the bill into law.
The plaintiff, in an oral application, asked the court for a preservative order to stop the legislature from overriding the president, pending the hearing and determination of its substantive suit.
Justice Mohammed had granted the preservative order and adjourned the matter to Tuesday.
However, the Senate which had blown hot and cold over the preservative order on the grounds that it was in violation of the principle of separation of powers as enshrined in the Constitution and said that it would send a petition to the CJN on the matter, as of Tuesday was yet to send a petition against the judge.
A source at Justice Onnoghen’s office informed THISDAY that no such petition had been received by the office.
Meanwhile, the presidency Tuesday opened up on the real reason Buhari opposed the Electoral Amendment Bill, saying that Section 25(1) of the bill, which is proposing an alteration to the election sequence, would cause a lot of confusion in the next general election.
A senior presidential official told THISDAY in confidence that the president’s objection to the amendment was meant to guard against its potential to disrupt INEC’s arrangements for the 2019 election and create huge logistics and financial problems.
According to him, the president’s decision to veto the bill was not borne out of fear of the proposal to alter the sequencing of the elections, but the innumerable consequences it could have on the entire elections and the system.
He said INEC had expressed concern over the alteration of the sequencing of elections carried out by the National Assembly, adding that it will scuttle all the arrangements it had already made.
The presidential source further stated that if the sequence of the elections proposed by the federal legislature is allowed to stand, INEC’s preparation so far, based on the election timetable it had announced, would be in disarray, pointing out that the materials already printed for instance by the electoral commission would be wasted.
Aside from the cost implication of conducting three elections, as against the two polls that INEC had proposed, the source added that conducting three elections would mean deployment of the same personnel and logistics that INEC would have used to conclude the two elections for the third election.
The commission had scheduled the Presidential and National Assembly polls for February 16 next year and governorship and state Houses of Assembly polls for March 2, 2019.
But the new provision in the bill states that elections shall be held in the following order: (a) National Assembly elections (b) State Houses of Assembly and Governorship elections (c) Presidential election.
The source said the presidency would not have minded the proposed sequencing if the presidential election had been lumped with the governorship and Houses of Assembly elections, provided the elections are conducted twice, pointing out that this would save INEC the stress of conducting three elections, as well as its huge cost implications on the nation.
The source further disclosed that the intention of the National Assembly in bringing its own election first was a strategy to force the hand of the president to give members of the legislature the support they need to win their various re-elections.
He said using their vantage positions as lawmakers to hoodwink the system instead of exploiting it to everyone’s advantage was done in bad faith.
He expressed confidence that the threat to override the president’s veto would not stand, describing it as a mere threat that the National Assembly was not really serious about.
“They won’t override the president’s veto. We have stated our position on the amendment. The veto was not caused by fear but because INEC said it would affect its own arrangements.
“Three elections will affect the materials INEC has already printed. It will affect logistics.
“INEC will have to use the same logistics that will be used to conduct two elections for the third election again. The same personnel will also have to be deployed for the third election.
“If the (presidential) election was to come up with that of governorship and state Houses of Assembly, it would have been better. But to plan the conduct of three elections is not in the interest of the commission and the country.
“The amendment is not about the effect of the first election on other elections, but the aim of the National Assembly is to use the reordered sequence of the elections to force the president to support their own elections.
“However, you don’t take advantage of your position to pursue your personal interest,” the source stated.
The National Assembly had inserted the section into the bill with the intention of making the reordered election sequence a legal matter.
Consequently, the Federal Executive Council (FEC) during one of its meetings last month, invited officials of INEC where the reordered elections proposed by the National Assembly was discussed.
However, the presidential source told THISDAY at the time that the details of the meeting with INEC were not meant for public consumption.
It is believed that INEC, during the meeting, had expressed its concern over the proposed sequencing, as disclosed by the source Tuesday, which formed the nucleus of the president’s decision to veto the bill.
But the president, in his letter conveying his veto on the bill to the National Assembly, did not solely cite the reordering of elections in the bill as the main reason for his decision.
He also cited other amendments in the bill, which he said informed his decision.
According to him, “The amendment to Section 138 of the Principal Act to delete two crucial grounds upon which an election may be challenged by candidates, unduly limits the rights of candidates in elections to a free and fair electoral review process; and
“The amendment to Section 152(3)-(5) of the Principal Act may raise constitutional issues over the competence of the National Assembly to legislate over local government elections.” – Thisday.

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