The Rule of Law Triumphs As the Supreme Court Nullifies Obnoxious Sections of the Electoral Act
By
Prof. Mike Ikhariale
The unanimous decision of the Supreme Court of Nigeria which was rendered in Abuja on Thursday the 28th of March 2002 nullifying some sections of the controversial Electoral Act, is yet another assurance that, in spite of the enormous stress being unduly put to bear on the Nigerian society by our incorrigibly wayward politicians, there may yet remain some hope for the survival of the Nigerian state, much thanks to the Judiciary and the untiring efforts of members of the civil society and the fledging remnants of the once vibrant intellectual class represented by ASUU. It is now the law: the National Assembly and, for that matter, the federal government of Nigeria, has no lawful power to elongate or shorten or otherwise interfere with the tenure of Local Government Councils as clearly set out under the constitution.
It was, ab initio, fundamentally unconstitutional and therefore null and void and of no effects whatsoever, for the National Assembly to have purported to amend the tenure of the local government councils from the constitutionally stipulated three to four years. Irrespective of the pretensions and feigned ignorance of all the culprits involved in the shameful attempt to rape the constitution, it was clear to everyone with some measure of mental well being that our politicians were only once more possessed by the old demons that systematically push them into digging their own graves through negative misinterpretation of constitutional rules which were supposed to guide their actions while in office. Being not sure of their electoral fortunes in the forthcoming elections, they had contrived to commence the rigging process from the very beginning by designing laws that would only produced results that suit their desire even if such actions set the nation ablaze. But in the wisdom of the Supreme Court, the apex tribunal in the nation’s legal order, all such ill-motivated legislations were wrong and therefore constituted exercises in utter futility.
Everything about the Electoral Act was a crude manifestation of the mentality of those who have held the Nigerian nation hostage all these horrible years, either militarily or through the caricature of democracy, namely: Nigerian are fools, they will take and swallow any rubbish offered them by government as long as it is coated with the semblance of officialdom or as Fela would have put it, Power Show.
In the instant case, the bone of contention was how far the federal government can interfere in the management of local matters, which are constitutionally outside its legislative sphere such as local government administration. Nigerians were already disgusted with the massive and sustained destruction of the federal system of government which was wisely prescribed by those who founded the Union by successive military regimes that recklessly transposed their command hierarchical lifestyle of the barracks to the hallowed business of civil governance. The case also sought to indirectly lawfully demarcate the roles of the various tiers of government in the affairs of local government under the laws of Nigeria. Unfortunately, the situation in the country was not helped by the fact that most of those who govern the country today are products of the prolonged military dicatorship from which our long-suffering people are just being liberated. So, there arose intellectually embarrassing disputations over such elementary and mundane issues of who should control local government as between Abuja and the states. One does not need to be a lawyer to guess that local governments administration are about local matters and that in the specific context of a federated polity, the state governments are the logically suited instrumentality for effective local control. But because we run a system where anyting goes, sane or insane, proper or improper, some people still managed to openly and loudly hold on to the view that federal powers in Nigeria are unlimited and all pervading until the Supreme Court now ruled them out as “wrong”.
At the height of the wholly embarrassing debates about whether or not it was proper for members of the National Assembly to embark on law making processes that are prima facie unconstitutional, ill-motivated and self-serving, especially with respect to the ill-fated Electoral Act within the framework of the unholy collision between some members of the National Assembly and the President to rig the 2003 elections through legislative somersaults, I wrote, in part, the followings in a piece entitled “Legislative Terrorism” warning about the danger ahead if we proceed further on that treacherous path. But like deaf and stupid people, they went ahead on their path to collective perdition, all the same.
Our lawmakers must be reminded that legislative powers under our constitution are not unlimited. Neither do they enjoy such anarchic immunities as they currently lay claim to. They do not have the power to make the sort of law that would 'turn a man into a woman', so to say. What we have chosen for ourselves in Nigeria is a constitutional democracy and certainly not a legislative tyranny. Any one coming into the nation's political arena must be prepared to play by the rules under which the constitution, rather than individuals and even institutions, is supreme. Our constitution established a limited government and the legislature is only a part of that limited system. The logic here is that if the government were a limited institution, any branch of it would only be left with a much lesser power. Neither was it the anticipation of those who wrote the constitution that elected lawmakers should enact laws that only suit their fancy.
Accordingly, there are substantive and procedural as well as coneptual limitations, on the powers of the National Assembly to make laws for the governance of the country. They cannot do what the constitution forbids or indeed attempt to do what the constitution permits by going outside of the procedures set out by the same covenant. Such would be ultra vires, null and void. Neither can they enact laws that would by their effects be found to be repugnant to our republican ideology for that would be a breach of the solemn covenant they had entered with the People as contained in their oaths office. To do otherwise is to embark on the same path with those who we have chosen to call, for lack of better terms, constitutional terrorists, anarchists and criminals masquerading as lawmakers.
I concluded that piece by submitting that “the purported Electoral Act, with respect to the tenure of democratically elected Local Government under the present constitution, the shameful attempt to scheme out other Nigerians from the democratic process through punitive party registration procedures and the deliberate manipulation of the voting order just to acquire the poisonous “bandwagon” effects (the infamous Osunbor section 80(1)) and other sundry legislative acts of mindless terrorism being inflicted on the nation cannot stand. Something must give way. The choice before us is obvious: cave in now or the nation is doomed later”.
Good enough, the governors of the 36 states of the Federation who were directly affected by the empire building instincts of our militarists federal officials accepted the challenge of the President when he was signing the obviously unconstitutional bill into “law” that any one who does not agree with the yo-yo piece of legislation should go to court (thankfully, not “to hell”) and actually went to the court to challenge the brazen abuse of legislative powers by members of the national assembly.
True to its reputation as the ultimate bastion of our constitutional democracy, the Supreme Court, upheld the supremacy of the constitution and consequently invalidated the bad law already enacted by the politically myopic legislators in a language that was both didactic as it was authoritative when it declared through the lead judgment of Justice Idris Legbo Kutigi that: ''No law enacted by the National Assembly can validly increase or otherwise alter the tenure of office of elected officers or... chairmen and councilors of local government councils in Nigeria. The Electoral Act as a whole was a mix-up, a confusion, because the National Assembly seemed to have treated its legislative powers with respect to federal election as if they were co-extensive with its powers over local government election. They were wrong."
The court, perhaps for reasons of emphasis, elaborated that ''the provisions
contained in....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,''
Coming on the heels of the realistic ruling of the Sharia Court of Appeal in Sokoto against the universally condemned obnoxious death-by-stoning ruling of a lower Sharia court a few days ago, the cumulative lesson in this new landmark ruling of the Supreme Court invalidating the unconstitutional attempt to counterfeit the electioneering process in Nigeria by political scoundrels, either due to their own intellectual limitations or deliberate misapplication of hallowed principles of constitutional law, succeed in their mission of taking the people for a ride.
To many of our people born and bred under non-democratic rule, this development may seem strange. The concept of judicial review is a necessary requirement of any functional constitutional democracy. The Executive and the Legislature, being morbid political branches within the framework of separation of powers, may routinely go astray and thus unwittingly raising the political thermometer of the country. There is however the hope, indeed, a very important safeguard, that the Judiciary shall remain independent of the rest of the pack so as to be able to pontificate with finality on the legality or otherwise of the ambitions of the other partisan departments of government. In spite of the man-made vicissitudes that have visited our legal order in recent times, I have remained steadfast in my conviction that the Supreme Court is at once a constitutional tribunal as well as a regular court and that the doctrine of political question which operates in some jurisdictions to preclude the courts from reviewing some politically tainted disputes is not fully a part of our constitutional practice, giving the nature of ‘judicial powers’ clearly established for our courts under our constitution.
Another important lesson from this judicial pronouncement is the new awareness that there is really no dispute that cannot be resolved peacefully and in a civilized manner. Rather than taking the laws into our own hands and resorting to jungle justice, as it is often the case, we should strive to embrace the option of judicial review of the actions and omissions of our leaders. I am however not ignorant of the obstacles that regularly confronts law-abiding citizens who opt for the peaceful judicial resolutions of their disputes, not to talk of the huge costs of seeking legal remedies and the manifest reluctance of our public officers to respect judicial orders. That is why we have for long advocated for more and sustained material support for those NGOs and civil society institutions that have on their agenda the provision of pro bono legal services to the needy.
The alternative to this approach is anarchy. Most of the politically contrived crises that have rocked the foundations of our polity in the last several months were issues that the law court could easily have resolved but because of the lingering militarist mentality in the land, everyone with little authority at his disposal now thinks he can bulldoze his way through any political thicket by deploying the instrumentality of blackmail, threats and physical violence. To our ‘big men’, the idea of law is only relevant when it is to be improperly deployed to intimidate and suppress opponents. The truth however is that, either by design or by necessity, the judiciary remains the last hope of the common man.
It is our hope that, at the end of the day, Nigerians, both the leaders and the led alike, would begin to understand the value of civilized resolution of disputes, no matter how contentious or, as we are wont to describe our disagreements, volatile. With this judgment, it is also the hope that our lawmakers would begin to learn the hard constitutional lesson that the corrupt and illegitimate power to fix undeserved salaries and prescribe scandalous furniture and sundry other allowances for oneself does not always translate into being omnipotent. The Rule of Law does not respect legislators, honorable or distinguished, who only relish in unmitigated acts of unconstitutionality, gross embezzlements of public funds (including the Ghana-must-go syndrome) and other forms of political rascality. The real lesson for Nigerians in this salutary judicial verdict is that acts of legislative irresponsibility bordering on some form of terrorism by those ‘elected’ to make laws for the peace, order and the good governance of the nation, in whatever guise and sophistry they are presented, cannot stand.