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THE NASS CANNOT AMEND THE CONSTITUTION THROUGH THE BACK DOOR (PART 3) By Mike Ozekhome

INTRODUCTION
We conclude our discourse on Section 84(12) today.

THE SUPREMACY OF THE CONSTITUTION

I commend the judgment of Justice Evelyn Anyadike landmark, 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”.

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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 mentionof 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 whatevername 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).

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).

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