By Mike Ozekhome
INTRODUCTION
We conclude our discourse on Section 84(12) today.
THE SUPREMACY OF THE CONSTITUTION
I commend the landmark judgment of Justice Evelyn Anyadike, for protecting the sanctity of the Constitution – the fons et origo; the grundnorm; which I have always described as the Oba, Eze and Emir of our laws. The Constitution constitutes the birth certificate of a nation. It highlights a Nation’s sovereignty and dignity.
The supremacy of the Constitution as against all other laws and Acts is provided for in section 1(1) and 1(3). By virtue of section 1(3) thereof,
“if any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other to the extent of the inconsistency be void”.
This supremacy has been severally emphasised in a plethora of cases. In UGBOJI V. STATE (2017) LPELR-43427(SC), the Nigerian apex court, per Amiru Sanusi, JSC (Pp. 23-23, paras B-D), held thus:
“My lords, permit me to reiterate that the Constitution of the Federal Republic of Nigeria, 1999, as amended, had by Section One, made provision to emphasise or assert its supremacy. By that provision, any law/statute or provisions thereof that runs riot and violent to the provisions of the Constitution or is in conflict with the constitutional provision is null and void to the extent of inconsistency. See A.G. ONDO STATE V. A.G. OF THE FEDERATION AND ORS (2002) 9 NWLR (Pt 772) 226.”
Consequently, where the provisions of the Constitution conflict with the provisions of Acts or Bills passed by the National Assembly and State Houses of Assembly, the former prevail. See also the cases of OLAGBENRO & ORS V. OLAYIWOLA & ORS (2014) LPELR-22597(CA); A.G. ABIA STATE V. A.G. FEDERATION (2006) 16 NWLR (Pt. 1005) page 265 at pages 290 and 291; AINABEBHOLO V. EDO STATE UNIVERSITY WORKERS FARMERS MULTI-PURPOSE CO-OPERATIVE SOCIETY LTD. & ANR. (2007) 2 NWLR (Part 1017) page 33 at page 50, paragraph G and P, 151 paragraphs C-D.
Indeed, the apex court has held in ISHOLA V. AJIBOYE (1994) 6 NWLR (Pt 352) 506, that the Constitution is not only supreme when another law is inconsistent with it, but also when another law seeks to compete with it in an area already covered by the Constitution. This is called the doctrine of covering the field. See AG, ONDO V. AG, FEDERATION (2002) 9 NWLR (Pt 772) 222; AG, OGUN STATE V. AG, FEDERATION (1982) 1-2 SC 7; SARAKI V. FRN (2016) LPELR-40013(SC); INEC V. BALARABE MUSA (2003) 3 NWLR (Pt 806) 72; NWANGWU V. UKACHUKWU & ANOR (2000) LPELR-6913(CA).
Consequently, it is clear that section 84(12) is loudly unconstitutional, null, void, of no effect whatsoever and was dead on arrival. As dead as dodo! This is because the Electoral Act (Amendment) Act, 2022, in section 84(12) imposed fresh hurdles on the part of political appointees to contest election during their party Congresses and conventions. The section is a direct frontal attack on and confrontation with the sanctity and supremacy of the Constitution. In that respect therefore, Justice Anyadike was correct to have struck down the section.
It must also be emphasized here that the Constitution reserves the right to expressly make provisions, and such provisions are usually interpreted literally.
An Act, Bill or even courts, cannot read into, or add words to the Constitution, nor subtract from it. As a result, the golden latin maxim of EXPRESSIO UNIUS EST EXCLUSION ALTERIUS – the explicit mention of one thing is the exclusion of another – applies to the Constitution. The Constitution has expressly provided for factors that disqualify aspirants who seek to contest elections in Nigeria. See PORTS AND CARGO HANDLINGS SERVICES CO LTD & ORS V. MIGFO (NIG) LTD & ANOR (2012) LPELR-9725(SC); EHUWA V. ONDO STATE INDEPENDENT ELECTORAL COMMISSION & ORS (2006) LPELR-1056(SC); and, WEST AFRICAN UTILITIES METERING & SERVICES LTD V. AKWA IBOM PROPERTY AND INVESTMENTS CO LTD (2019) LPELR-47089(CA).
The NASS has no vires to add to, or subtract from same. Consequently, section 84(12) of the amended Electoral Act is patently null and void, unconstitutional, unlawful, and of no effect whatsoever. I thank Justice Evelyn Anyadike for giving it a well deserved burial through her refreshing judgment.
THE POLITICAL SPECTRE LOOMING IN THE ENTIRE AMENDED CLAUSE
NASS V. BUHARI
I have, as ever always, in this outing, tried to avoid discussing the politics of the amendment brouhaha and concentrate only on my dissertation of the law on the subject matter. Otherwise, if we were to look at the politics of it, many questions immediately spring up for answers. For example, when did we ever witness the 9th NASS oppose President Buhari’s budgets, bills, letters, actions or requests? When did the NASS ever challenge or overrule Buhari’s nepotic, prebendalistic, tribalistic, cronyistic, religious and sectionalistic appointments in the last 7 years? I cannot remember. Or, can you? When did the “Mr-take-a-bow” Senate (my pet name for the present red chamber, for never ever properly screening public appointees (always telling them to take a bow and go); and for always kowtowing to Mr President’s serial requests for humongous loans that haemorage Nigeria ever oppose Buhari? We are talking about loans that await us like booby traps and sentinels at the door steps of generations yet unborn. I cannot remember when the NASS ever opposed Buhari. Or, can you?
THE ROLE OF THE ATTORNEY-GENERAL IN THIS SUIT
When did the Attorney General of the Federation, Abubakar Malami, ever refuse to appeal a judgement and spontaneously act the judgment with such automatic alacrity, in obeying Justice Anyadike’s order of court, as we just witnessed? Remember how court judgments and orders were serially disobeyed in the El Zakzaki and Ibrahim Dasuki cases? Would Malami have taken the same steps if the judgment had gone against him and the government? I think not.
THE ISSUE OF JOINDER
Why were the NASS (which initially passed the law), and INEC the implementor of the law not joined in the suit, at least, as INTERESTED and PROPER parties, even if not as NECESSARY parties? See GREEN VS GREEN (1987) NWLR (PT 61) 481.
VOIDANCE OR DELETION?
Why would the Attorney-General seek to delete the offensive section 84 (12) as ordered by the Judge? A court’s duty stops at voiding an Act or law; but not to delete or repeal it. That is a job for the legislature or the Law Revision Commission. When did the Attorney-General (a top player in the Executive) possess statutory powers to delete Acts of the Legislature when laws are normally gazetted by the Legislature after the President and Governor had respectively signed bills into law? One should have thought that merely voiding the Act was sufficient until future amendment of the Act and consequential deletion of the offensive section, based on the court’s judgment in striking it down.
VENUE OF THE SUIT
By the way, why was the case filed at FHC in far away Umuahia, Abia State, when the Attorney-General works and resides in Abuja; and when the NASS and INEC (interested parties) are also located in Abuja? Was it an act of forum-shopping and Judge-shopping? I do not know. Or do you?
LOCUS STANDI
On locus standi, I do not agree with those who questioned the locus standi of Chief Nduka Edede, the plaintiff. Every Nigerian has the locus standi to question the validity of any statute he believes is unconstitutional.
In the case of AKINPELU & 20 ORS. V. AG OYO STATE (1985) 5 NCLR 557, it was held as follows:
“In my view, the question of locus standi vis-à-vis our present Constitution, cannot be adequately thrashed out without considering the effect of Section 4(8) of the Constitution…. In other words, the subsection places on the court a supervisory jurisdiction over the legislative powers by the National Assembly and a House of Assembly. As any citizen is affected by a new law enacted by the legislature, it seems to me therefore that such citizens should be accorded the right to challenge the constitutionality of such enactment. In the case in hand, I accept his evidence adduced by the plaintiffs that they reside in Lagelu Local Government and that they pay rates to Lagelu Local Government Council”.
In line with this trend of thought, the court in EJEH V. AG, IMO STATE (1985) 8 NCLR 390, relied on the causa célèbre of ABRAHAM ADESANYA V. PRESIDENT OF THE FEDERATION (1981) 2 NCLR 358, and laid down three principles thus:
“ (1) It behoves any person who is convinced that there is an infraction of the provisions of the Constitution to be able to go to court and ask for appropriate relief if relief is required.
(2) A defendant should be wrong in challenging the locus standi or the capacity of a plaintiff to sue, when the cause of action is intended to keep the law and the Constitution of the country serene and inviolate.
(3) Any person whose interest, obligation or rights are regulated by any law of general application is an interested party in a cause, matter or suit involving the determination of the validity or constitutionality of such law, notwithstanding that such a person is not made a party in the proceedings”.
In the said apex case of ADESANYA (supra), celeral Justice Kayode Eso, JSC (of blessed memory) had held, most lucidly that:
“It has to be accepted that our Constitution has undisguisedly put the Judiciary in a pre-eminent position, a position unknown to any other Constitution under the Common Law, where the Judiciary has to see to the correct exercise of the legislative powers by the National Assembly”.
There are too many questions begging for answers in the way and manner the amendment was handled.
WAY OUT OF THE APPARENT CONUNDRUM
To avoid the present confusion and apparent bad blood generated by the protagonists and antagonists of section 84(12), the following steps could be taken immediately:
Firstly, the NASS should, in its ongoing Constitutional amendment exercise, amend section 66(1)(f) of the Constitution, to specifically include the following category of persons: “all political appointees by whatever name called” ,as persons who must give 30 days notice to be able to contest election.
Secondly, the NASS itself, political parties, politicians, lawyers, NGOs, members of the Civil Society and all those who are aggrieved by Justice Evelyn Anyadike’s judgment, should apply to the Court of Appeal for joinder in the suit as interested parties to force an appeal, or prosecute any appeal arising therefrom. This is legally permissible under the Constitution (section 243 of the party sought to be joined can show that he ought to have been joined in the suit. Court of Appeal Act and Rules. See the cases of MUDASIRU & ORS. V. ONYEARU & ORS. (2013) LPELR- 20354 (CA); KATAMI V. KATAMI (2018) LPELR- 46417 (CA); MOUKARI & ANOR V. WILLIAM & ORS (2021) LPELR-54860 (CA); IN: RE ELEMA (2018) LPELR- 46233 (CA); WAZIRI V. GUMEL (2012) LPELR-2843 (SC). I believe such an application will be granted without much ado. Thirdly, where the Attorney-General willfully refuses to appeal the judgment, such aggrieved persons can challenge the deletion of section 84(12) in a fresh suit. Let us develop our jurisprudence. Let us expand new vistas and expound the frontiers of the law through judicial decisions. Let us situate our arguments within the proper legal regime and constitutional organogram of our laws, devoid of political sentiments, emotions and morality. There is a wide gulf between the “lex lata” (the law as it is) and the “delege ferenda” (the law as we would want it to be). I have observed that many analysts usually anchor their arguments on morals and ethics. Jurisprudence and law are not morality. Such moralists are advised to seek refuge at the pulpits in our churches, monasteries; or mosques; or even shrines. But, certainly not hard-cold law. (Concluded).
FUN TIMES
“A man mistakenly told his wife, Adam didn’t pay bride price for Eve. She pointed out that God was Eve’s dad and HE took ribs”.- Anonymous.
THOUGHT FOR THE WEEK
“Justice in the life and conduct of the State is possible only as first it resides in the hearts and souls of the citizens”. (Plato).
