Sunday Aborisade and Maritha Ebolosue
4 October 2021
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The Senate on Sunday insisted that the National Assembly had the power to make laws on mode of elections, including transmission of results.
The Spokesperson for the red chamber, Senator Ajibola Basiru, stated this in an interview with one of our correspondents.
He was reacting to a declaration by the Independent National Electoral Commission that the 1999 constitution gave it the power to determine and adopt any mode of elections.
But Senior lawyers, including Mike Ozekhome and Tayo Oyetibo, in separate interviews with The PUNCH supported INEC.
The fresh controversy over the power of the National Assembly came to the fore on Sunday as the joint conference committee of the two chambers of federal legislature meets this week to harmonise the versions of the electoral bill passed by the Senate and the House of Representatives.
The Senate, had on July 15, in its amendments to the Electoral Act, inserted a clause which mandated the electoral umpire to rely on the verdict of the National Communications Commission before it could transmit election results by electronic means.
The House of Representatives however passed a different version which allowed INEC to transmit election results electronically, where and when practicable.
Following the difference in the amendments passed by both chambers, a 14-member conference committee was set up to harmonise the two versions.
But top INEC officials, including the commission’s National Commissioner and Chairman (Electoral Operations and Logistic Committee), Prof. Okechukwu Ibeanu, have faulted the lawmakers.
But Basiru, who is a member of the conference committee, told The Punch on Sunday that the federal parliament could determine the mode of election for INEC through legislation.
He said, “I know that by section 4 of the Constitution read together with paragraph 22, the National Assembly has power to make law on mode of election.”
Asked if the conference committee would recommend that INEC should be allowed to transmit results electronically since it had demonstrated its capacity to do so, Basiru said he wouldn’t want to preempt the panel’s verdict.
He said, “I don’t have the power of clairvoyance to predict what decision with be taken by the Senate or the harmonisation committee.”
But senior lawyers, who spoke to our correspondents, supported INEC.
A Senior Advocate of Nigeria, Ozekhome, said, “INEC, by its very name, is supposed to be independent of any other person, body or authority. This is also the clear provision of Section 158(1) of the Constitution of the Federal Republic of Nigeria 1999. It states that in the performance of its duties, INEC shall not be subject to or be responsible to any other person or authority.”
According to him, if the constitution has made INEC independent, it means any other law that seems to make INEC dependent on another body is null and void to the extent of its inconsistency, by virtue of Section 1(3) of the constitution.
He added, “This means that the provisions of the Amendment Bill in Section 53(3) which the Senate was considering in July are dead on arrival. This is because it provides that INEC may transmit election results electronically, provided that the National Communications Commission agrees that it can reach into those areas in which the elections are to be held.
“After this, INEC is supposed to take the certification to the National Assembly for approval. What this signifies is that INEC would be subjected to the whims and caprices of the NCC and the National Assembly.
“We have a National Assembly where the ruling party has a majority over the other opposition parties. The Electoral Act has already made INEC independent to hold elections and transmit the results as they deem fit.
“The National Assembly is crying more than the bereaved, which is INEC. Their refusal to transmit election results electronically is a great injustice to Nigerians. The INEC, in a 25-page report earlier this year, made it clear that it has the capacity to transmit election results electronically.”
Ifedayo Adedipe (SAN) on his part INEC was not subject to anybody.
He stated, “Any other law being made to subjugate INEC would be deemed unconstitutional since it would be going against the provisions of the constitution.
“Part of the problems we have in this country is that we do not even look at the language of the constitution before we make additional laws. When the constitution has already prescribed that it cannot be subject to anybody, how can you then make it subject to the NCC or any other body?
Tayo Oyetibo (SAN) said “the constitution gave INEC the power to conduct and manage elections; transmitting election results electronically is part of the management.
He added, “The constitution is supreme, therefore, the National Assembly cannot curtail those powers. Any law intended to interfere with the exercise of those powers would be contrary to the constitution.
“So, I totally agree that INEC does not need the approval of the National Assembly to announce election results