Dr. Olisa Agbakoba SAN

Foremost human rights lawyer and former President of the Nigerian Bar Association NBA, Dr Olisa Agbakoba SAN has written the Independent National Electoral Commission INEC on the urgent need to take concrete and proactive steps to assert its constitutional authority with a view resolving the constitutional crisis generated by the decision of President Muhammadu Buhari to decline assent to the Electoral Act Amendment Bill as the nation approaches the 2023 general elections.

Recall that the President had while justifying his decision to withhold assent to the Amendment Bill, assured that if the National Assembly makes the necessary adjustments, which among several others include removing the clause on direct primary election by political parties and other issues around electronic transmission of election results, that he would sign the bill into law.

The former President of the NBA, in a letter dated January 4, 2022 and addressed to the chairman of the commission, Prof Mahmood Yakubu and copy made available to our correspondent, charged the INEC to rise to the occasion as the supreme electoral umpire in the country as enshrined in the country’s grand norm; the 1999 Constitution.

As part of efforts to resolve the imbroglio, he advised the commission to issue guidelines on electronic voting and party primaries. He also suggested that the INEC should urgently approach the court with a view to declaring its role as the Supreme Constitutional Regulator of the electoral process in the country, a development he believes would resolve all controversies and save the country an imminent constitutional crisis.

He also faulted the National Assembly over its posture and assumption that it has overriding authority with powers to regulate all aspects of elections in the country was wrong and therefore not the position of the law, arguing that such powers actually belong to the INEC.

According to him, the true position of the law is that the National Assembly only provides a general framework for elections through the Electoral Act, while details such as the date and order of elections, the voting procedure including the transmission of election results, and regulation of party primaries remain within the constitutional powers of the commission.

He cited paragraph 15 of Part 1 of the Third Schedule made under section 153 (1) of the 1999 Constitution. The Senior Advocate also noted that the courts have long-established in a plethora of cases such as PDP v. SYLVA (2012) 13 NWLR (PT 1316) 85, NDP v INEC (2013) 20 WRN 1 AT 45, and PEOPLES DEMOCRATIC PARTY V TIMIPRE SYLVA & ORS (2012) 13 NWLR (PT 1316) 85 AT 122to the effectthat the National Assembly through the Electoral Act cannot usurp or fetter the constitutional powers of INEC. 

The letter reads in part: “The interesting but complex public conversation around the Electoral Act (Amendment) Bill, 2021, particularly as it relates to the electronic transmission of election results and the matter of direct primaries, fall in my respectful view, within the constitutional mandate of the Independent National Electoral Commission INEC.

“The assumption of the National Assembly that it has overriding authority with powers to regulate all aspects of elections in Nigeria is wrong.  That is not the position of our law.

“The National Assembly only provides a general framework for elections through the Electoral Act, but details such as the date and order of elections, the voting procedure including the transmission of election results, and regulation of party primaries are within the constitutional powers of INEC.

“In light of the President’s decision to withhold assent to the Electoral Act (Amendment) Bill; and the uncertainty about the legal framework for the 2023 election, this is perhaps the best opportunity for INEC to stamp its authority as the constitutionally endowed regulator of the Electoral Process in Nigeria. This is supported by section 158 (1) and 160 (1) of the 1999 Constitution.”