Election re-ordering: Lawyers divided on court action

No question of law arises on a bill yet to be law —
Professor Ben Nwabueze, SAN

Nigeria is a country where strange things happen, where a Court of
Law, whose jurisdiction is limited to the application of law in
dispute before it, can act on the basis of a Bill that has not yet
become law; in other words, rendering an advisory opinion, which a
Court of Law under our system has no authority to give, that the
eventual enactment of the Bill into law will be unconstitutional,
null, and void. Even when the intention has been formulated into a
bill, no question of law arises at that stage, for a bill is not
law; as such, it cannot be an unlawful exercise of the power of
law-making in as much as it may be abandoned or amended before the
processes of its translation into law are completed.

NASS is ignorant of the legal aspect —Prof. Itse Sagay,
SAN

If you look at Section 6 of the Constitution, it is very clear
that the Court has the power to adjudicate in the matter between
the Executive and the Legislature, virtually everything. Not only
that, when there is a dispute between the Executive and the
Legislature, the Court is the only source to which they can go to
for adjudication. There is obviously a dispute between the
Executive and Legislature in this area. That is number one.

Secondly, the National Assembly is being very short- sighted. If
for any reason the Court declines to hear the case, in response to
the National Assembly’s request, what happens? If the President and
the Independent National Electoral Commission, INEC, refuse to
implement the new law that they have over-ridden, they will rush
back to the Court. So, it is short-sighted and against the
principles of law established in the Constitution and the common
law. In common law, we have a principle that permits anybody who is
in danger of an imminent injury of anyone to rush to the Court to
stop that person from carrying out the injury, rather than waiting
for the injury to be done and going out to seek remedies.

Those who took the matter to the Court, is a political party
which I understand; they have an interest or may be injured, if the
legislation is implemented or if they override the President’s
refusal to sign. To prevent that injury, they rushed to the Court.
It is for the National Assembly to get to the Court and explain
whether they have the power to pass that law and whether it will
cause injury to the person that complained. So, I have no doubt in
my mind, at all, that the National Assembly is ignorant of the
legal aspect of the whole issue.

The Order is interim and improper to comment on— Mr.
Tani Molajo, SAN

My view is that this dispute between the President and the
National Assembly is one which is under adjudication and therefore,
it is subjudice. That order made by the Court is an interim order;
it is not one which is made to last in perpetuity. It is made to
last until the next adjourned date, until further order. In my
view, it is not proper for anyone to begin to comment on these
proceedings or the order made in those proceedings publicly. There
can be no public discussion of the totality or otherwise of a Court
order in proceedings which are subjudice. It is after the outcome
that the matter can be thrown open for public debate.

You know the laws of contempt to Court are quite clear, definite
and strict. Running commentary on proceedings which are ongoing
should be discouraged because of the risk that it may tend to
influence the ultimate decision or influence the party,
particularly to discontinue or abandon their claim or defense. No
pressure should be put on either party as proceedings are
continuing in Court. That is why public debate and commentary are
discouraged by the laws of contempt. Commentary can run when
proceedings are concluded, at least at a level in the judicial
system in which dispute is currently being adjudicated.

N/A should defend the case and make her points—Mr.
Babatunde Fashanu, SAN

The courts need to be aware of the separation of powers in the
Constitution. For example, can the National Assembly legislate that
the Supreme Court must not hear a particular case? I can tell you
that under the Constitution, each of the three arms of government
have their respective roles spelt out. None of the arms can prevent
the other from performing their functions except as spelt out. So,
the legislature cannot legislate the judiciary out of hearing and
adjudicating a case but can make laws to reverse the case after its
conclusion.

Similarly, the judiciary cannot stop the legislature from
legislating but can declare a Law or Act illegal after it has been
made. That is how far I can go generally without impinging the
subjudice rule. However, the NASS writing the Chief Justice of
Nigeria, CJN, about the ongoing case is neither here nor there. The
Judge cannot be controlled by the CJN about how he determines a
case until the case gets to the Supreme Court through the appellate
system. So, the NASS should direct its efforts at defending the
case in court and make their points there, but can make Laws to
reverse the effect of the case.

The N/A has the right to veto the Bill —Mr Lawal Pedro,
SAN-

It is important to understand that Nigeria operates a
presidential system of government with a National Assembly, a
bicameral legislature established under section 4 of the Nigerian
Constitution to make laws for the country as representatives of the
people. Therefore, before any bill may become law, it must be
agreed to by both the House of Representatives and the Senate, and
thereafter passed to the President for his assent. Should the
President refuse assent (veto), the National Assembly may pass the
law by two-thirds of both chambers and overrule the veto and the
President’s consent will not be required.

That is the Constitutional law of the country and there is
nothing anybody can do about that. From all indications, the
National Assembly has not hidden its preparedness to overrule the
President on the proposed amendment to the Electoral Law.

The intervention of the Judiciary, the third arm of government
vide the Federal High Court order of injunction is a new
development in our jurisprudence. We all know that the
Constitutional duty of a court is interpretation of law and to give
effect to it. The court should ordinarily not interfere with
legislative process of making a law.

However, where any person has commenced an action in court to
challenge the power of the National Assembly and an
interim/interlocutory Order of injunction is made, no matter how
frivolous the action may be in the eyes of the National Assembly or
the public, everybody has an unqualified obligation to obey and
respect the order of the court and the judicial process until the
order is set aside or action dismissed by due process. Any other
way or step taken by the National Assembly or anybody will amount
to self help and an invitation to chaos and anarchy which should be
avoided. Therefore, anybody aggrieved by the order should apply to
court to have it set aside. That is the dictate of the Rule of
Law.

The legislative arm can’t do executive duties—Chief
Goddy Uwazurike

The constitution of Nigeria placed this country on three
pedestals at the federal level. The legislative body makes the laws
implemented by the executive while the judicial arm interprets the
outcome of the three arms. As it is today, the judicial interprets
the outcome, not the work in progress. The legislative arm has the
unfettered jurisdiction to make laws. It is after the law is made
that you can challenge it in the law court, not before. The
executive has the power to execute the functions of the executive
arm. The judicial arm actually interprets the law. You cannot stop
the executive or the legislature from exercising their
constitutionally guaranteed functions. Mutual respect is always
there. The legislative arm cannot do the executive duties such as
oversight and even ordering arrest, confirmation or removal of
judicial officer.

No question of law arises on a bill yet to be law —
Professor Ben Nwabueze, SAN

Nigeria is a country where strange things happen, where a Court of
Law, whose jurisdiction is limited to the application of law in
dispute before it, can act on the basis of a Bill that has not yet
become law; in other words, rendering an advisory opinion, which a
Court of Law under our system has no authority to give, that the
eventual enactment of the Bill into law will be unconstitutional,
null, and void. Even when the intention has been formulated into a
bill, no question of law arises at that stage, for a bill is not
law; as such, it cannot be an unlawful exercise of the power of
law-making in as much as it may be abandoned or amended before the
processes of its translation into law are completed.

NASS is ignorant of the legal aspect —Prof. Itse Sagay,
SAN

If you look at Section 6 of the Constitution, it is very clear
that the Court has the power to adjudicate in the matter between
the Executive and the Legislature, virtually everything. Not only
that, when there is a dispute between the Executive and the
Legislature, the Court is the only source to which they can go to
for adjudication. There is obviously a dispute between the
Executive and Legislature in this area. That is number one.

Secondly, the National Assembly is being very short- sighted. If
for any reason the Court declines to hear the case, in response to
the National Assembly’s request, what happens? If the President and
the Independent National Electoral Commission, INEC, refuse to
implement the new law that they have over-ridden, they will rush
back to the Court. So, it is short-sighted and against the
principles of law established in the Constitution and the common
law. In common law, we have a principle that permits anybody who is
in danger of an imminent injury of anyone to rush to the Court to
stop that person from carrying out the injury, rather than waiting
for the injury to be done and going out to seek remedies.

Those who took the matter to the Court, is a political party
which I understand; they have an interest or may be injured, if the
legislation is implemented or if they override the President’s
refusal to sign. To prevent that injury, they rushed to the Court.
It is for the National Assembly to get to the Court and explain
whether they have the power to pass that law and whether it will
cause injury to the person that complained. So, I have no doubt in
my mind, at all, that the National Assembly is ignorant of the
legal aspect of the whole issue.

The Order is interim and improper to comment on— Mr.
Tani Molajo, SAN

My view is that this dispute between the President and the
National Assembly is one which is under adjudication and therefore,
it is subjudice. That order made by the Court is an interim order;
it is not one which is made to last in perpetuity. It is made to
last until the next adjourned date, until further order. In my
view, it is not proper for anyone to begin to comment on these
proceedings or the order made in those proceedings publicly. There
can be no public discussion of the totality or otherwise of a Court
order in proceedings which are subjudice. It is after the outcome
that the matter can be thrown open for public debate.

You know the laws of contempt to Court are quite clear, definite
and strict. Running commentary on proceedings which are ongoing
should be discouraged because of the risk that it may tend to
influence the ultimate decision or influence the party,
particularly to discontinue or abandon their claim or defense. No
pressure should be put on either party as proceedings are
continuing in Court. That is why public debate and commentary are
discouraged by the laws of contempt. Commentary can run when
proceedings are concluded, at least at a level in the judicial
system in which dispute is currently being adjudicated.

N/A should defend the case and make her points—Mr.
Babatunde Fashanu, SAN

The courts need to be aware of the separation of powers in the
Constitution. For example, can the National Assembly legislate that
the Supreme Court must not hear a particular case? I can tell you
that under the Constitution, each of the three arms of government
have their respective roles spelt out. None of the arms can prevent
the other from performing their functions except as spelt out. So,
the legislature cannot legislate the judiciary out of hearing and
adjudicating a case but can make laws to reverse the case after its
conclusion.

Similarly, the judiciary cannot stop the legislature from
legislating but can declare a Law or Act illegal after it has been
made. That is how far I can go generally without impinging the
subjudice rule. However, the NASS writing the Chief Justice of
Nigeria, CJN, about the ongoing case is neither here nor there. The
Judge cannot be controlled by the CJN about how he determines a
case until the case gets to the Supreme Court through the appellate
system. So, the NASS should direct its efforts at defending the
case in court and make their points there, but can make Laws to
reverse the effect of the case.

The N/A has the right to veto the Bill —Mr Lawal Pedro,
SAN-

It is important to understand that Nigeria operates a
presidential system of government with a National Assembly, a
bicameral legislature established under section 4 of the Nigerian
Constitution to make laws for the country as representatives of the
people. Therefore, before any bill may become law, it must be
agreed to by both the House of Representatives and the Senate, and
thereafter passed to the President for his assent. Should the
President refuse assent (veto), the National Assembly may pass the
law by two-thirds of both chambers and overrule the veto and the
President’s consent will not be required.

That is the Constitutional law of the country and there is
nothing anybody can do about that. From all indications, the
National Assembly has not hidden its preparedness to overrule the
President on the proposed amendment to the Electoral Law.

The intervention of the Judiciary, the third arm of government
vide the Federal High Court order of injunction is a new
development in our jurisprudence. We all know that the
Constitutional duty of a court is interpretation of law and to give
effect to it. The court should ordinarily not interfere with
legislative process of making a law.

However, where any person has commenced an action in court to
challenge the power of the National Assembly and an
interim/interlocutory Order of injunction is made, no matter how
frivolous the action may be in the eyes of the National Assembly or
the public, everybody has an unqualified obligation to obey and
respect the order of the court and the judicial process until the
order is set aside or action dismissed by due process. Any other
way or step taken by the National Assembly or anybody will amount
to self help and an invitation to chaos and anarchy which should be
avoided. Therefore, anybody aggrieved by the order should apply to
court to have it set aside. That is the dictate of the Rule of
Law.

The legislative arm can’t do executive duties—Chief
Goddy Uwazurike

The constitution of Nigeria placed this country on three
pedestals at the federal level. The legislative body makes the laws
implemented by the executive while the judicial arm interprets the
outcome of the three arms. As it is today, the judicial interprets
the outcome, not the work in progress. The legislative arm has the
unfettered jurisdiction to make laws. It is after the law is made
that you can challenge it in the law court, not before. The
executive has the power to execute the functions of the executive
arm. The judicial arm actually interprets the law. You cannot stop
the executive or the legislature from exercising their
constitutionally guaranteed functions. Mutual respect is always
there. The legislative arm cannot do the executive duties such as
oversight and even ordering arrest, confirmation or removal of
judicial officer.