Comparative Analysis of Electoral Laws of 2001 and 2002

• Pages: 87-149

5.

COMPARATIVE ANALYSIS OF ELECTORAL LAWS TILL DATE

(1) PRINCIPLE UNDER ELECTORAL ACT 2001

186. Designation of public building as polling stations and submission of

list of candidates as provided in Section 24 and 25 Electoral Act. 2001.

“Many of the existing provisions of the Constitution have been repeated. Matters

pertaining to designation of public buildings, as polling station must be left to the

Independent National Electoral Commission (I.N.E.C.) to handle and not strictly a

matter for legislation. Section 25 in particular, which relates to submission of list of

candidates and their affidavits by political parties to the Commission, is clearly an

amendment to the Constitution. It is unconstitutional. All these sections are hereby

struck-out for duplication, inconsistency and want of legislative competence.” –

Per Kutigi, J.S.C. in A-G. Abia State v. A-G. Fed. Suit No. S.C. 3/2002; (2002) 6

N.W.L.R. (Pt. 763) 265 at 370.

187. Dissolution of Local Government Council and removal of Local

Government Chairman or Vice Chairman as provided under Section 119,

120, 121 and 122, Electoral Act 2001.

(1) “Section 119 provides for the dissolution of Local Government Council and

extends the tenure of the council to four years. This is far from procedure and

cannot pertain to procedure. Hence it offends the provisions of item 22 of the

Exclusive Legislative List and items 11 and 12 of the Concurrent Legislative List.

It is therefore inconsistent with the Constitution and null and void. Section 120

deals with the vacation of the seat of a member of Local Government Council. It

too offends the provisions of item 22 of the Exclusive Legislative List and items 11

and 12 of the concurrent Legislative List. It is therefore inconsistent with the

Constitution and null and void. Section 121 deals with the removal of the chairman

and Vice-Chairman of Local Government Council. For all I have stated above the

section is ultra vires the National Assembly. It is null and void. Section 122 provides

for the recall of a member of a Local Government Council. This too has nothing to

do with procedure regulating election under item 11 of the concurrent Legislative

List. It is therefore inconsistent with the Constitution and null and void.” - Per

Uwais, C.J.N. in A-G. Abia State v. A-G. Fed. Suit No. S.C. 3/2002; (2002) 6

N.W.L.R. (Pt. 763) 265 at 402.

(2) “The provisions contained in sections 15 - 73 and 110 - 122 except sections 16,

26 - 73, 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.” - Per Kutigi, J.S.C. in A-G. Abia State v. A-G. Fed. Suit No. S.C. 3/

2002; (2002) 6 N.W.L.R. (Pt. 763) 265 at 374.

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PRINCIPLE UNDER ELECTORAL ACT 2001 Paras. 186-187

88

Para. 188

(3) “Clearly too these sections cannot be said to have dealt with the matters of

procedure regulating elections to Local Government Councils. Some of the provisions

in section 121 are in fact already in the Constitution. The National Assembly lacks

legislative power to enact this section. They are unconstitutional, inoperative, null

and void. They are hereby struck-out.” – Per Kutigi, J.S.C. in A-G. Abia State v. A-

G. Fed. Suit No. S.C. 3/2002; (2002) 6 N.W.L.R. (Pt. 763) 265 at 371.

188. Election dates set under section 15 of the Electoral Act 2001.

“Part II of the Act deals with procedure at Elections which, by virtue of Item 22 on

the Exclusive Legislative List the National Assembly has power to legislate on Section

15 in Part II provides: - “15: - (1) Election to- (a) the office of the President and

Vice-President and to the Senate and House of Representatives, (b) the office of

Governor and Deputy Governor and House of Assembly of a State; and (c) the

Chairman and Vice-Chairman and members of a Local government or Area Council,

shall be held on the date appointed by the commission. (2) an election to the offices

mentioned under subsection (1)(a) of this section shall be held on a date not earlier

than 60 days and not later than 30 days before the expiration of the term of office of

the last holder of that office. (3) The date mentioned in subsection (1) and (2) of this

section shall not be earlier than 60 days before and not later than the date on which

the House stands dissolved, or where the election is to fill a vacancy occurring more

than three months before such date, not later than a month after the vacancy occurred.

(4) The dissolution of the Senate and the House of Representative and the House of

Assembly of a State shall be in accordance with the provisions of section 64 and 105

respectively of the Constitution and the dissolution of Local Government shall be in

accordance with the provisions of section 119 of this Act. (5) The Commission shall

not later than 150 days before the dates appointed in subsections (1) and (2) of this

section publish a notice stating the date of the election in each Constituency in respect

of which an election is to be held. (6) the elections to which this Act relates shall be

held in the following order, namely:- (a) Federal Elections, that is to say, election to

the office of President and Vice-President, Senate and House of Representatives:-

(b) State Elections, that is to say, elections to the office of Governor and Deputy-

Governor and House of Assembly of a State; and (c) Local Government Elections,

that is to say, election to the office of Chairman, Vice-Chairman and members of

Local Government Council. On a date to be appointed by the Commission in respect

of (a) and (b), and by the State Commission in respect of (c) provided that a period

of not less than 2 weeks shall elapse between the Federal Elections and the State

Elections and between the State Elections and the Local Government Elections.”

Sub-section (1) (c) in so far as it empowers the Independent National Electoral

Commission (INEC) to appoint a date for the holding of election to the offices of

Chairman, Vice-Chairman and members of a Local Government Council, it is

inconsistent with paragraph 4 of Part II of the Third Schedule to the Constitution.

The power given to the National Assembly in paragraph 15(2)(i) of Part I of the

VOL. 2 PT. I COMPARATIVE ANALYSIS .......

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Third Schedule to the Constitution to confer upon the commission other functions

cannot be exercised in derogation of other provisions of the Constitution. As I have

pointed out earlier in this judgment it is not in dispute that the National Assembly can

legislate for local government councils in the Federal Capital Territory – see section

299(a) of the Constitution. Hence sub-section (1)(c) of section 15 would be valid is

so far as it relates to the election to the office of the Chairman, Vice-Chairman and

members of an Area Council but invalid as respect the election to the office of

Chairman, Vice-Chairman and member of a Local Government Council; unless for

the other reason which I will state presently, the invalidity of part of subsection

(1)(c) is not enough to declare the whole of sub-section (1) invalid – see Alhaji D. S.

Adegbenro v. Attorney-General of the Federation & Ors. (1963) 2 S.C.N.L.R.

38; (1962) A.N.L.R. (Pt. I) 431 at 435. The provisions of sub section (1)(a) and (b)

of section 15 are in pari materia with sections 76(1), 116(1) 132(1) and 178(1) of

the Constitution relating to the members of the National Assembly and House of

Assembly of a State, the President and Vice President and the Governor and Deputy

Governor of a State respectively. That being so, therefore, subsection (1)(a) and (b)

are inoperative. And as what remains of that subsection cannot stand, the whole

subsection (1) of section 15 is hereby invalidated. Sub-section (2) of section 15 is, in

part, in pari materia with sections 132(2) and 178(2) of the Constitution and, in part,

inconsistent with sections 76(2) and 116(2) of the Constitution. The subsection is,

therefore, invalidated as the part that is good cannot be severed from the part that is

bad without rewriting the sub-section, a function that is not that of the Court but of

the Legislature. Subsection (4) is in pari materia with sections 64(1) and 105(1) of

the Constitution. It is inoperative and I, therefore, invalidate it. Sub-section (5) is

predicated on sub-sections (1) and (2) which have been invalidated; it too, therefore,

stands invalidated. The Constitution gives to I.N.E.C. the power to fix dates for

election to the various offices of President and Vice President, Governor and Deputy

Governor and members of the National Assembly and House of Assembly of a

State. Subsection (6)(a) and (b) usurp or, at best, interfere with the exercise of this

power and are consequently void as being inconsistent with the Constitution. As

regards subsection 6(c) it is the State Independent Electoral Commission (S.I.E.C.)

that is given Power under paragraph 4 of Part II of the Third Schedule to the

Constitution, “to organise, undertake and Supervise” all elections to local government

councils within the State, and not the I.N.E.C. Subsection 6(c), is therefore, inconsistent

with the Constitution and it is consequently void.” - Per Ogundare, J.S.C. in A.-G.

Abia State v. A.-G. Fed. Suit No. S.C. 3/2002; (2002) 6 N.W.L.R (Pt. 763) 265 at

438 - 440.(2) “Let me examine these provisions one by one vis-à-vis the Constitution,

in the light of the doctrine of covering the field and inconsistency with the Constitution

as considered above. Section 15 subsection (1) (a) and (b) are inoperative because

the Constitution has made the same provisions in sections 76 (1), 116(1), 132 (1) and

178 (1) thereof. Section 15 subsection (1) (c) is inconsistent with paragraph 4 of

Part II of the Third Schedule to the Constitution, in so far as it empowers the

Principle under electoral act 2001 Paras. 188-189