By Prof Ben Nwabueze
A further blow on the Bill was delivered by the Federal High Court (FHC) in an amazing Ruling given on 25/4/2018 in the suit brought by Accord Party challenging the validity of the Bill. The learned Judge, Justice Ahmed Mohammed, nullified the bill because it infringes or violates the power of INEC under paragraph 15(a) of the Third Schedule to the Constitution to organize, undertake and supervise all elections. The decision is erroneous and amazing because the only means by which the National Assembly could infringe or violate the powers of INEC is by “an Act of the National Assembly”, not by a mere Bill that has not become an Act. And by section 318(1) of the Constitution, “Act or ‘Act of the National Assembly’ means any law made by the National Assembly”, and by section 58(1) of the same Constitution, the “power of the National Assembly to make laws shall be exercised by bills passed by both the Senate and the House of Representatives AND, except as otherwise provided by subsection (5) of this section, assented to by the President.” So the passing of a Bill by the two Houses – by the laborious processes of first, second and third readings, etc in each House – does not make it a law – until the Bill is assented to by the President.
Secondly, apart from an inconsistent executive act of government, the power of the court to nullify an exercise of power by an organ of government, by the National Assembly in particular, for violation or breach of the provisions of the Constitution under section 1(3) of the Constitution, applies only to a law; it does not, repeat not, apply to a Bill that has not become law. Section 1(3) is unequivocal : “If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall to the extent of the inconsistency be void”.
No less blatantly erroneous and amazing is the holding by the learned judge that a “Bill did not have to mature into an Act to make a suit challenging its validity justiciable; this ground of the learned judge’s ruling abolishes the difference between a Bill and an Act, from which it follows that any Bill inconsistent with any provision of the Constitution can be challenged in court, and may be nullified by it, notwithstanding that it has not “matured into an Act”.
As you can see, the ruling is so manifestly wrong in law.
Professor Ben Nwabueze
Lagos
2nd May, 2018
