Nigeria: President Can’t Ask Court to Remove a Law He Signed, Supreme Court Says

Nigeria’s Supreme Court on Friday struck out the suit challenging section 84(12) of the Electoral Act 2022 banning political appointees from voting at the primaries of political parties, for being incompetent and lacking in merit.
The Attorney-General of the Federation/Minister of Justice, Abubakar Malami, on behalf of the federal government, had filed the suit on the grounds that it violates the rights of political appointees and that it is in conflict with provisions of the constitution.
The section reads: “No political appointee at any level shall be a voting delegate or be voted for at the convention or congress of any political party for the purpose of the nomination of candidates for any election.”
In a counter-affidavit filed by the parliament, the lawmakers argued that the constitution empowers them to make laws, and therefore, urged the Apex Court to strike out the suit instituted by President Buhari and AGF.
The apex court, in a unanimous decision described the suit as an abuse of court process and subsequently struck it out.
According to Justice Musa Mohammed-Dittjo, who led a seven-man panel of the Supreme Court, the plaintiffs having earlier assented to the said section 84(12) of the Electoral Act 2022, cannot turn around to approach the court to strike it down.

The apex court faulted the federal government’s request on the grounds that, “there is no provision in the Constitution that vests the President the power to challenge the constitutionality or desirability of a legislation after he has assented or denied his assent”, especially in the instant case.
The panel in the unanimous judgment delivered by Justice Emmanuel Agim, agreed and upheld the submission of counsel to the National Assembly, Kayode Ajulo, that the suit is not one of such cases in respect of which the court’s original and additional jurisdictions could be invoked under Section 23(2)(1) of the Constitution and Section 1(1)(a) of the Supreme Court (Additional Jurisdiction) Act 2002.
The apex court also disagreed with the plaintiffs that the suit was informed by the National Assembly’s failure to give effect to President Buhari’s request that Section 84(12) of the Electoral Act be deleted for allegedly offending the provisions of the Constitution.
According to Justice Agim, the suit touched on the essence of the powers given to the President by Section 58(4) of the 1999 Constitution, which he exercised by participating in its making.
Justice Agim held that since the President aided the creation of the Act, with the support of the AGF, both plaintiffs could not turn around to question its legality.

He added: “The Constitution did not provide for the involvement of the court by the President after exercising his powers under Section 58(4) of the Constitution one way or the other.
“I agree with the argument by the counsel to the National Assembly (Ajulo) that this suit is a reprobation of what the first plaintiff (the President) had approbated, and this cannot be allowed in law.
“Haven assented to the Electoral Bill 2022 and thereby accepted that it has become law, he cannot therefore bring a suit, contending that the act resulting from his assent is not constitutional, desirable and justifiable, thereby retracting from his assent.
“As it is, one of the cumulative requirements in Section 1(1)(a) of the Supreme Court (Additional Jurisdiction) Act 2002 for the invocation of the additional jurisdiction of this court to entertain an originating suit between the President and the National Assembly does not exist.
“The plaintiffs have no legally enforceable legal right or power that gives life to questions raised for determination in the originating summons, and that can be protected or enforced by the reliefs claimed for.
“The dispute in this case does not involve any question or include the existence or extent of any legal right to the plaintiffs. Therefore, this suit cannot be entertained by this court in the exercise of its additional jurisdiction under Section 1(1)(a) of the Supreme Court (Additional Jurisdiction) Act 2002.
“There is no part of the Constitution that makes the exercise of the legislative power of the National Assembly subject to the direction and control of the
President of Nigeria.

“The first plaintiff’s (the President) written request to the National Assembly to amend the Electoral Act 2022 by deleting Section 84(12) therein, is a violation of Section 4(1) of the 1999 Constitution.
“The court cannot be engaged in this kind of unconstitutional and illegal enterprise. The suit is therefore an abuse of the judicial process.”
He further agreed with Ajulo that the court lacked the jurisdiction to entertain the suit, and added that there was no useful purpose to be served by determining the case on the merits.
Other members of the panel – Justices John Okoro, Amina Augie, Mohammed Garba, Abdu Aboki and Ibrahim Saulawa – agreed with the lead judgment.
President Buhari had in February this year signed the amended Electoral Act, 2022 with a caveat that the National Assembly deletes the said section in the interest of deepening the nation’s democracy.
Although, the National Assembly had declined the president’s request, it was not until Justice Inyang Ekwo of a Federal High Court in Abuja, restrained the lawmakers from acceding to the president’s request.

The restraining order followed the suit and an exparte application filed by the People’s Democratic Party (PDP) asking the court to forbid the lawmakers from deleting the said section on the grounds that only a competent court can take such action.
Before the federal government’s suit at the apex court, two separate individuals had approached both the Federal High Courts in Ibadan and Umuahia requesting the court to strike down the section for breaching the Constitution, adding that the constitution had already taken care of the qualification and disqualification of persons seeking political offices.
While the Ibadan division of the Federal High Court, dismissed the suit on the grounds of jurisdiction because the plaintiff lacked the requisite locus standi to initiate the suit in the first place, the court in Umuhia, agreed with the plaintiff and ordered the striking down of the section and in addition ordered the federal government to delete it from the Electoral Act, 2022.
Meanwhile, the Court of Appeal in a judgment, set aside the decision of the Umuahia Federal High Court for want of jurisdiction, but agreed that Section 84(12) was unconstitutional and discriminated against a certain class of citizens (the political appointees).
Following the conflicting decisions and confusion the three judgments of the Federal High Court and Court of Appeal had created, the federal government accordingly approached the apex court for an interpretation of the said section.

House: Judgement is Victory for Democracy

The House of Representatives has hailed the Supreme Court for striking out the suit seeking to void the provision of section 84(12) of the Electoral Act, 2022.
Speaking to THISDAY, the House Spokesman, Hon. Benjamin Kalu described the judgement as “unequivocally lucid, a victory for the advancement of democracy and the nation’s rule of law.”
According to him, the Supreme Court has reaffirmed the legislative supremacy of the National Assembly, and has also done that in the spirit of doctrine of separation of powers, understanding that the efficiency of government will be driven by this democratic principle where every arm stays within the parameters of their mandate and to become the best in their assignment.
The House Spokesman added: “We have not lost sleep from the time this matter went to the Supreme Court for interpretation, because we knew that what we put together was in consultation with the public that gave us their mandate. And what we came out with was a reflection of the consultation we had with the Nigerian people. It is all about advancing our democracy.
“Just like the mantra of the House has always been, “Nation Building a Joint Task” the supreme court has restored the confidence of Nigerians in participatory democracy with the integrity of this judgement, delivered without fear or favor, but with Nigeria and Nigerians at the center of it all.
“The Supreme Court has reaffirmed the legislative supremacy of the National Assembly, and has also done that in the spirit of doctrine of separation of powers, understanding that the efficiency of government will be driven by this democratic principle where every arm stays within the parameters of their mandate and to become the best in their assignment.
“In conclusion, the Supreme Court has laid their own brick in the efforts towards electoral reform by this judgement. They have added their own bricks to Nation building through the electoral reform and electoral act 2022. So we are glad, and I’m sure Nigerians ought to be glad.”

Alex Enumah and Udora Orizu in Abuja

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