After the Supreme Court of Nigeria delivered the landmark decision in AMEACHI v INEC, declaring Rt. Hon Ameachi the duly elected governor of Rivers State, on the premise that he was the validly nominated candidate of his political party without necessarily participating in the General Election, the National Assembly amended the Electoral Act 2010 for the sole purpose of the 2011 election and introduced Section 140(2) & 141 in a bid to curtail the powers of the courts from granting such subsequent reliefs.  Suffice it to say that, the pronouncement in AMEACHI v INEC received a lot of commendation as well as wide criticism within and outside Nigeria. Most Scholars in the Commonwealth jurisdiction and indeed law schools have embarked on extensive analytical study on the rationale behind the decision.

These sections provides thus:

140(2)

“ where an election tribunal or court nullifies an election on the grounds that the person who obtained the highest votes at the Election was not qualified to contest the election, or that the election was marred by substantial irregularities or non compliance with the provision of this act, the election tribunal or court shall not declare the person with the second highest votes as elected, but shall order a fresh election.

141

“ An Election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not been fully participated in all the stages of the said election”

 These provisions have been widely described as provisions beyond the scope of the legislative competence as it tends to limit and/or defined the scope of the powers of the court to make pronouncement in the adjudication, therefore running contrary to the principles of Separation of power and its ancillary concept of checks and balances.  The powers of the court or tribunal to declare the winner of an election is constitutional vide Section 134, 179 and 285 in particular and carries with it the power to do justice in every case.  It is trite that when the law or any of its provisions is or are found to be inconsistent with any of the provisions of the constitution, the court by virtue of Section 4(8) and (9) of the constitution is and on the strength of Section 1(3) of the same Constitution empowered to declare such legislation or any of its provisions inconsistent with the constitution and will nullify such legislation or provision. One Notable case is the Public Order Act.  In AKINWOLEMINA v ONDO STATE HOUSE OF ASSEMBLY (1985) 6 NCLR 580, the Court held that “ in order not to create a tyrannical and despotic legislature, the drafters of the CFRN, 1999 as amended specifically prohibit the National Assembly from making any law(s) that “ousts or purports to oust the jurisdiction of a court of law or a judicial tribunal established by law.

 By these provisions the drafters of the constitution consciously set out to create a state and a fortiori, a government that will be strictly limited by law and to be made subject to the constitutional authority of the judiciary in the exercise of its adjudicatory duties. There is no arm of government that has absolute powers, perhaps unreviewable powers.  The pertinent question to ask at this junction is whether or not the National Assembly in enacting the said Sections 140(2) &141 of the Electoral Act exceeded its constitutional mandate?

It is the writers opinion that it is a misconception that legislative processes are not subject to the jurisdiction of courts under the doctrine of separation of power, as was contended by most legislators of the 7th National Assembly when the immediate past president was perceived to have vetoed the last amendments and also sought an order before the Supreme Court. This is simply because case laws are settled to the effect that where the National Assembly has powers under the constitution to legislate on any matter, it can however only do so in compliance with the provisions of the constitution.  See A.G ABIA STATE v A.G FEDERATION (2002) 6 NWLR (pt 763) and the organ of government empowered to ensure that is the judiciary.

In 2011, the Labour Party, one amongst the 30 registered political parties in Nigeria, agitated by the introduction of these sections approached the Federal High Court, Abuja Division Coram Kolawale J in LABOUR PARTY v INEC & ANOR, FHC/ABJ/CS/399/2011 seeking an order declaring them unconstitutional. In their contention those provisionsamounts to legislative tyranny and judgment as they intend to delimit the powers of the court to grant appropriate reliefs in election litigation and that there are vague if not purposeless.  The Court in acceding to the plaintiff’s case held at page 34 of the judgment that Section 141 of the Electoral Act is not only vague but amounted to usurpation of the role and duty of the courts in their constitutional powers to hear and determine election petition.

In a final analysis, the learned trial judge made a profound submission at page 63-64 thus: it is my decision that the provisions of Sections 140(2) & 141 are unconstitutional since they attempt to curtail the exercise of judicial powers conferred on the Election Petition tribunals who by Section 239 and 285 of the Constitution have jurisdiction to hear and determine election petitions…… the said provisions of the Electoral Act appear to curtail the broad guidelines which the constitution has specified in relation to Election Petitions filed concerning these offices and in particular, the provisions of Section 134(1)-(5) and 179(1)-(5) of the Constitution. The provision of Section 140(2) of the Electoral Act, supra is nothing but a “legislative judgment” which the National Assembly lacks the competence and constitutional powers to make because, one of the fundamental constitutional propositions of the Constitution as amended is the operation and observance of the concept of separation of powers and its ancillary concept of “checks and balance” amongst the three arms of government …

 To underscore this point that the National Assembly does not have a provision similar to Section (6)(6)(a) of the Constitution in terms of its legislative powers, and to demonstrate that although Section 6(6)(a) of the Constitution in relation to the inherent powers of the courts, may appear rather wide, it can only be exercised as a judicial power within the limit and ambit of the jurisdiction of the court. This is possibly in my view, due to the motive behind the drafters of the constitution deliberately construed the provisions of Section 6(6)(a) by the use of the words: “ notwithstanding anything to the contrary in this constitution” and thereby vests the court with all inherent powers and sanctions of a court of law. In this context, the writer will posit that the decision which a tribunal sitting in an election litigation will arrive at, is not necessarily definable in terms of being limited by legislative provisions.

No appeal arose from the decision of LABOUR PARTY v INEC.  However the Apex Court in the Case JEV v IYORTYOM & 2 ORS (2014) 5-6 SC. PT III) 82 per Okoro JSC in the Lead Judgment when called upon to make a consequential order after dismissing the appeal and upheld the judgment of the two lower courts that the elected legislator was not validly nominated hence the Principle in AMEACHI v INEC be invoked, declined and held thus:

 “ The truth of the matter is that the 1st appellant cannot continue to maintain his seat at the House of representative, having found his way into the House unlawfully…… at the same time the respondent cannot be ordered to be sworn in immediately because Section 141 of the Electoral Act 2010 (as amended) forbids such an order since the 1st respondent did not participate in all the stages of the election…. by section 141 of the Electoral Act (supra), the 1st respondent cannot be declared the winner of the election as was done in AMAECHI v INEC (2008). The clear position of the law now is that a person must participate in all the stages of an election before he can be declared the winner of the said election. In this case although the Federal High Court held that the 1st respondent was the candidate of the 2nd appellant, the 2nd appellant and the 2nd respondent herein refused to place his name on the ballot. The inevitable outcome of this appeal is that there must be fresh election with the name of the 1st respondent as the candidate of the 2nd appellant in its new name, All Progressive Congress”

 It is observed from this above decision unlike My Lord Justice Kolawale .J. who conveniently went to town and gave a comprehensive reasoning after considering detailed arguments from all the parties and arrived at a conclusion. The Supreme Court on his part only gave a literary interpretation of the Statute on the prompting of the appellant and came to this findings. Perhaps if the Apex Court had afforded parties the opportunity to address the court on the constitutionality or otherwise of the said section the outcome would probably be different. Interestingly, this issue was revisited by the Supreme Court pursuant to an application for review vide Order 8 Rule 16 of the Supreme Court Rules in the same JEV v IYORTYOM (2015) wherein the applicant sought to review the consequential orders previously made by the court, in that pursuit exhibited the decision of Kolawale J to the affidavit evidence. The court though acceded to his prayers and amended the consequential order, however did to touch or considered the Judgment exhibited, the court in doing so held that “ in looking at Section 141 of the Act..it is clear that the said section refers to some courts for which the supreme Court is not part of. Section 133(2) of the Electoral Act which defines court or tribunal in Section 141 thereof states “ in the case of presidential election, the court of appeal and in the case of any other elections under this act the election tribunal established under the constitution or this Act”. It is the writer’s observation from a reading of this judgment that the Supreme Court though had a lot to say deliberately refused to comment on the decision of Kolawale J. since it wasn’t an appeal before them and promised to speak on it at an appropriate time. This much is evidenced in the concurring decision of My Lord Justice Fabiyi JSC thus: “ EXHIBIT 2, the judgment of the Federal High Court, delivered on the 21st July 2011 is a ‘joker’ relied upon by the applicant to initiate his application. I dare say that this court was unaware of same. I do not agree with senior counsel to the applicant that the court was ignorant of same. A Judge is not a robot. Once an exhibit is placed before him, he must read and carefully consider it. I took time to read Exhibit 2 very well. The learned trial judge did not touched on the non-joinder of the National Assembly as well as the locus standi of labour party. Since the judgment is not on appeal before this court, I maintain a stoic and hereby keep my peace” This above statement to my mind suggest that the court has a lot of reservation with the findings of the learned trial judge. To the best of the writers information this is the latest decision of the Supreme Court on this issue, but it certainly not the end of this issue. We await them patiently. Since the doctrine of Judicial precedent enjoins us to be bound by the extant Apex Court finding, the Taraba State Governorship tribunal in EPT/TRS/GOV/23/2015 who recently delivered its judgment would have (in my opinion) been so guided to avoid what has been commonly referred to as judicial rascality. Albeit so, the writers is of the strong opinion that the judicial powers globally donated to courts of law by the constitution (such as Section 6(6)(b) of the CFRN) are wide powers which can only be limited by the relevant sections of the constitution and/or statute which confers jurisdiction on the court. See OGBONNA & ORS v PRESIDENT OF NIG (1990) 4 NWLR (pt 142) 124.

Consequently, the backlash about these sections and the related authorities are largely divergent in views and has informed this question, whether it is legislative judgment or the decisions to the contrary are judicial legislation?