Senior Advocate Faults NASS Assumption Of Overriding Authority To Regulate Election

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Agbakoba

By; MATTHEW UKACHUNWA, Lagos

A Senior Advocate of Nigeria (SAN) has faulted the assumption of the National Assembly (NASS) that it has overriding authority with powers to regulate all aspects of elections in Nigeria.
Dr. Olisa Agbakoba (SAN) made the argument in a letter he wrote to the Chairman, Independent National Electoral Commission (INEC), Professor Mahmood Yakub. 
The letter which was written on 4th January 2022 bore the subject heading: “Re: Electoral Act (Amendment Bill) 2021” Agbakoba said: “The interesting but complex public conversation around the Electoral Act (Amendment) Bill, 2021, particularly as it relates to the electronic transmission of election results and the matter of direct primaries, fall in my respectful view, within the constitutional mandate of the Independent National Electoral Commission (INEC).

“The assumption of the National Assembly that it has overriding authority with powers to regulate all aspects of elections in Nigeria is wrong.  That is not the position of our law.”
He pointed out that the National Assembly only provides a general framework for elections through the Electoral Act, but details such as the date and order of elections, the voting procedure including the transmission of election results, and regulation of party primaries are within the constitutional powers of INEC. 
He urged those who may argue his assertion to  “Please refer to paragraph 15 of Part 1 of the Third Schedule made under section 153 (1) of the 1999 Constitution.”
 He stated that the courts have long-established in a plethora of cases such as PDP V. SYLVA (2012) 13 NWLR (PT 1316) 85, NDP V INEC (2013) 20 WRN 1 AT 45, and PEOPLES DEMOCRATIC PARTY V TIMIPRE SYLVA & ORS (2012) 13 NWLR (PT 1316) 85 AT 122 that the National Assembly through the Electoral Act cannot usurp or fetter the constitutional powers of INEC. 
In his declaration Agbakoba stressed that in light of the President’s decision to withhold assent to the Electoral Act (Amendment) Bill; and the uncertainty about the legal framework for the 2023 election, “this is perhaps the best opportunity for INEC to stamp its authority as the constitutionally endowed regulator of the Electoral Process in Nigeria.”
He explained that his point of view on the matter is supported by section 158 (1) and 160 (1) of the 1999 Constitution.  I suggest that INEC should issue guidelines on electronic voting and party primaries. Section 87 of the Electoral Act on party primaries usurps the constitutional power of INEC.  
“I would also respectfully suggest the urgent need to approach the court with a view to a declaration of the role of INEC as the Supreme Constitutional Regulator of the Electoral Process in Nigeria,” the senior lawyer wrote in the letter.

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