AG has no statutory powers to delete a provision of an Act of the National Assembly. The gazettes are the Act of the legislative arm of Government and in their production by the executive arm the AG can not delete nor add any provision once signed into law by the Governor or President as the case may be.
The President had directed the national assembly to work its review and went on and signed the electoral Act into law. That remains the law until it is amended in plenary. The court can declare without more that a provision in another valid law of national assembly is inconsistent, and void to the extent of its inconsistency with the provisions of the constitution of 1999 as amended. Nothing more. The Court may direct INEC to discountenance that provision as inapplicable for the time being till the national assembly amends the offending provision. That will be law until a superior Court declares otherwise and INEC is bound on notice to obey.
To direct the AGF to delete a provision of an Act of Parliament is a relief strange to law.
Second point is that the constitution actually provides 30 days to Election, is Primary election not Election covered by the electoral law to which the 30days relates. It should therefore be seen that the electoral Act merely amplifies the 30days to ‘election’ and not a breach. Where is the inconsistent any way. The constitution specified 30 days to Election not Elections. Primary election holds in May and that is the election within the contemplation of the constitution and the Electoral Act,and not general elections per se where only voting takes place after the candidates have emerged.
Its in primary election that aspirants buy forms to run for an elective position requiring public servant who wish to vie for elective positions to resign 30days to election. That election under reference is the primary election and not the general election(s). This decision with due respect appears hasty and tailored to down play the necessity to the strengthening of best practice towards fair elections and public servants integrity not to be partisan while they midwife any election. Political appointees ought to resign prior to the election which starts in May 2022 by INEC timetable. My thesis is that the Electoral Law provision in question, which is the subject matter of the FHC judgment with utmost respect, as i believe in my view is not inconsistent with the provisions of 1999 constitution as amended. It is a good law made to address the obvious lapses inherent in the disobedience of that constitutional provision on the resignation of political appointees by 30 days to Election.
The interpretation of the Electoral Act provision to mean only general elections is on a mischief rule. The ordinary meaning of that constitutional provision of 30days to election is the primary election. The electoral law provision is not in conflict after all with the provisions of the constitution, applying the golden rule in legal interpretation of statutes. This is yet another ambush to INEC strategic planning to conduct peaceful, credible and fair elections in Nigeria.
*Chief C.U. Daniels, LLM, BL.*