As the constitutional time limit for Nigeria President Muhammadu Buhari to sign the Electoral Act (Amendment) Bill 2021 expires on Sunday, some senior lawyers on Saturday asked the National Assembly to override the decision of the president if he withholds his assent.
Legal icons also, faulted a position credited to Attorney General of the Federation Abubakar Malami in a leaked letter to the president that making direct primary mandatory for all political parties would confuse.
However, there are concerns that if the National Assembly goes on recess on December 21 as proposed and resumes in the third week of January 2022, the lawmakers may not have the time limit to veto the president.
Interim Chair, Alliance on Surviving COVID-19 and Beyond (ASCAB), Mr. Femi Falana (SAN); a former President of the Nigerian Bar Association (NBA), Chief Joseph Daudu; human rights lawyer, Mr. Ebun-Olu Adegboruwa; Mr. Dayo Akinlaja (SAN); constitutional lawyer, Chief Mike Ozekhome (SAN); and Mr. John Baiyeshea (SAN), told THISDAY that the federal lawmakers should veto the president.
While INEC and the leadership of the National Assembly had advised the president to sign the bill, most state governors and Malami had asked him to reject the bill on the ground that making direct primary mode mandatory would create confusion among political parties.
With the constitutional time limit ending on Sunday, Falana challenged the National Assembly to proceed to override the decision of the president if he withholds his assent in line with section 58(5) of the 1999 Constitution.
Falana said if the president withholds assent again as he did in 2018, the lawmakers should initiate the process of overriding the decision of the president, which according to him, required a two-thirds majority of the Senate and House of Representatives.
Falana, however, explained that the challenge of the governors “is not direct primary mode. The real problem is the electronic transmission of election results because it will stop manipulation.
“The governors now want the president to throw away the baby and bathwater. That is how the president rejected it in 2018 under the guise that it was close to the general election.
“The 2010 Electoral Act provides for direct and indirect primaries specifically under section 87 (1), (2) & (3) of the Act. Under this regime, direct primary mode is optional. In the Electoral Act (Amendment) Bill, 2021, it becomes mandatory. The question of some leaders sitting somewhere to impose candidates will not arise again.”
On Malami’s letter, Falana asked the president to ignore misleading advice from unsolicited quarters, especially potential governorship aspirants, noting that such advice “is based on personal interests and not in the national interest.”
The human rights lawyer also, added that the question of political parties amending their constitutions “to accommodate direct primaries does not arise as they are already part and parcel of the electoral law.”
On his part, Daudu noted that under the subsisting electoral regime, indirect primaries, direct primaries, and consensus had been identified as the options open to the political parties to select and submit candidates for elections.
He explained how the overbearing roles of the governors in the entire electoral process compelled the lawmakers and other stakeholders to introduce the direct primary mode during the amendment of the Electoral Act in 2015.
The senior lawyer argued that over the years, the other stakeholders “have accused the state governors of having a stranglehold on the entire electoral process, especially the process leading to the selection of candidates.
Daudu explained how members of the National Assembly took a collective exception to the stranglehold of the governors on the electoral process considering implications such influence had on their nominations for election.
He said: “This is understandable, as it was getting increasingly clear that even their re-election to their various seats at the National Assembly was shaky without the endorsement of their respective governors.
“Consequently, like a bolt from the blues, the legislators inserted by legislative fiat, a clause in the Electoral Act (Amendment) Bill stipulating that the party flag bearers can only be selected by the direct primary medium or mode by their political parties.”
NBA’s former president said: “The legislators want to call the shots, and in the process, upstage the governors as to who occupies an electoral office in Nigeria. Thus, it is not about internal democracy, but about who emerges as the winner in 2023.
“Hence, this Electoral Act (Amendment) Bill as engineered by the National Assembly who together with some segments of the civil society organisations want to use the new law to shift the power base. Now, it is not Buhari’s duty to weigh in on the side of one of the two combatants.”
He, however, said the responsibility of the President “is to bequeath on Nigeria an enduring electoral legislation that will enthrone free, fair, and credible elections and not arbitrate between legislators and governors as to who will have the electoral advantage come 2023 general election.”
Also speaking on the issue, Adegboruwa told THISDAY that there “are many innovative provisions in the bill that makes it attractive as a tool to oil our democratic experiment, especially the issues of electronic transmission of election results and direct primaries for the political parties.
“From the events monitored on the floor of the National Assembly and indeed the public hearings conducted, it is clear that Nigerians prefer that results of elections be transmitted electronically by INEC to avoid the recurring decimal of manipulation and rigging.”
According to Adegboruwa, direct primaries for the choice of candidates of political parties will eliminate the hydra-headed issues of godfatherism and imposition of candidates.
Relying on section 58 (5) of the 1999 Constitution, the senior lawyer urged the National Assembly, in the national interest, “to invoke their constitutional powers to pass the Electoral Bill and save our democracy from imminent collapse.”
He added that Nigerians expect the National Assembly to shake off the toga of being a rubber stamp entity and use this golden opportunity to assert their autonomy.
“This matter is important and pressing enough to warrant the suspension of the current recess of the National Assembly to pass the Bill and in that wise, override presidential assent. Nothing is too much to give to salvage our hard-earned democracy.”
Speaking on whether Saturdays and Sundays are included in the 30 days, Adegboruwa stated that the “Constitution only says 30 days and there is no distinction on 30 working days.”
Constitutional lawyer, Ozekhome, also disclosed that the 30 days will expire today.
“Under section 58(4-5), it will expire today. By tomorrow, which is Monday, the National Assembly can convene. But we do not have a National Assembly. They are lily-livered. They are spineless. If they are a strong National Assembly, they will convene on Monday and get the two-third majority of the members of the Senate and House of Representatives and override the president’s withholding assent.
“What the president has not done now is to veto the bill by assenting to it. But the National Assembly can override it under Section 58(4-5) of the 1999 Constitution. They should go ahead and override the president’s veto.
“I do not agree with the argument of the AGF. Because the Electoral Act (Amendment) Bill, 2021 introduces the direct primary, you should kill the whole Electoral Act (Amendment) Bill? The argument that political parties will have to change their constitutions does not arise at all.
“The political parties can always change their constitutions. What is the big deal? Is that why you should kill the whole Electoral Act that contains electronic transmission of results, which is a leap forward? That argument is red herring. I think the president should assent to this bill. Since today is Sunday, he should assent to it today. The last day falls on today, which is Sunday. He must assent to it today. If he does not, the National Assembly must meet tomorrow and override the president’s veto. They have that power,” Ozekhome explained.
But for Mr. Ahmed Raji (SAN), the big question is whether Nigeria as a country can currently afford the huge cost of the Direct Primary being proposed in the amended bill.
In an interview with THISDAY, Raji also further questioned the capacity of INEC as well as that of the various political parties to conduct direct primary elections.
“My frank position is that the National Assembly should holistically and thoroughly examine the reservations of Mr. President. Direct Primary is new and it is looking like a mini general election. Can we afford it? Is INEC well equipped for it? Do the parties have credible members’ registers? And what is the effect on our court system? And is our life all about elections?” he queried.
In his reaction, Mr. John Baiyeshea (SAN), insisted that if the President does not sign the Electoral Bill, the next thing that should happen is to invoke the Constitutional provisions to override the president’s veto.
The senior lawyer, however, expressed doubt that the present dispensation of lawmakers has what it takes to override the president.
“Even under the rather ‘hostile’ leadership of the National Assembly in the immediate past dispensation (is it the 8th Assembly they called it), the president vetoed an Electoral Bill and other Bills. And they did not override him then.
“I don’t see the present rather ‘friendly’ leadership of the National Assembly galvanising the National Assembly members to override him”, he said.
But Mr. Dayo Akinlaja (SAN) argued that the result-oriented approach would be that if the President is not persuaded to sign the bill, “both Houses of the National Assembly have the constitutional mandate or power to take a second and possibly harder look at the Bill.
“Once they are doubly convinced that the Bill as initially passed would do more good than harm to the polity, it would be proper for the National Assembly to override the veto of the President bypassing the Bill into law with the requisite majority.”