PRESS RELEASE: The DSIEC 2017 Law Is Bad And Will Not Stand

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Having carefully studied the Delta State Independent Electoral Commission (DSIEC) Law 2017 recently passed by the Delta State House of Assembly,  the Delta Stakeholders Group (DSG) hereby states as follows:

1.0. In terms of legislative quality, the DSIEC Law 2017 raises serious questions and concerns. The Law does not speak well of the House of Assembly as an institution. Unable to research the issues and come up with something better than the ‘Compendium of Incompetence’ it received from the State Executive in the name of a Bill, the Assembly hastily rubber-stamped barefaced errors pretending to have made a law. This should not and will not stand. We urge concerned Deltans to immediately stop implementation of the bad law as it happened in the State of Osun where the people successfully moved the Supreme Court to nullify a similar bad law in 2009.

2.0. It is elementary that the Constitution is the supreme law of the land, the very fountain of all laws and barometer for measuring the validity or otherwise of any other law. Any law (State or Federal) that is inconsistent with the Constitution is null, void and, indeed, not a law. Also, by the Doctrine of Covering the Field, a State law that is inconsistent with a law enacted by the National Assembly is void for such inconsistency. On these, it would help to be guided by portions of some major pronouncements by the Supreme Court and the Appeal Court:

a. “That fact that the National Assembly has enacted a law on the subject is enough for such law to prevail over the law passed by a State House of Assembly but where there is inconsistency, the state law is void to the extent of the inconsistency.” – UWAIS, CJN (as he then was), in AG ABIA STATE v. AGF (2002) 17 WRN at page at 99;

b. “Where the provision in the Act is within the legislative powers of the National Assembly but the Constitution is found to have already made the same or similar provision, then the new provision will be regarded as invalid for duplication and or inconsistency and therefore inoperative.

THE SAME FATE WILL BEFALL ANY PROVISION OF THE ACT WHICH SEEKS TO ENLARGE, CURTAIL OR ALTER EXISTING PROVISIONS OF THE CONSTITUTION. THE PROVISION OR PROVISIONS WILL BE TREATED AS UNCONSTITUTIONAL AND THEREFORE NULL AND VOID.” – KUTIGI, JSC [Later CJN], AG ABIA STATE v. AGF (2002) 17 WRN at page 129; and

c. “The Constitution of Nigeria is very clear, unambiguous, uncompromising and categorical about the rights of its citizens when it comes to matters of the curbing or curtailing a citizen’s rights. It does not leave us in any doubt as to what should be done or as to how we should proceed NOR DOES IT LEAVE MATTERS TO CHANCE OR TO THE DISCRETION OF INDIVIDUALS WHO MAY BE INCLINED TO SUBJECT SUCH INALIENABLE AND IMMUTABLE RIGHTS TO ABUSE.” – SANKEY, JCA in AKILA v. DIRECTOR GENERAL, SSS (2014) 2 NWLR (Pt. 1392) 443 at 463.

3.0. More than anything else, the supremacy of the Constitution ought to be held inviolable by the diligent lawmaker. Also, it is the duty of the diligent lawmaker to have an eye on the Doctrine of Covering the Field at all time in his business of lawmaking. A good lawmaker does not make laws that fight with the Constitution. A State Legislature cannot claim to have made a good and valid law if that law is inconsistent with the Constitution or a competent law made by the National Assembly. Both the State and the Federal legislatures cannot expand on the provisions of the Constitution through inferior legislations. Rights guaranteed by the Constitution cannot be taken away by ‘local’ laws. The Delta State Government is very guilty of these ‘no-go areas’ with regards to the DSIEC Law which is nothing but an assault on the Constitution and expectations of diligent lawmaking.

ON QUALIFICATION TO CONSTEST LGA ELECTION & DISQUALIFICATION FROM SAME.

4.0. Section 7(4) of the 1999 Constitution (as amended) provides that, “The Government of a State SHALL ensure that every person who is entitled to vote or be voted for at an election to House of Assembly SHALL have the right to vote or be voted for at an election to a LOCAL GOVERNMENT COUNCIL.” This means that every Deltan who is qualified under the Constitution to contest for a House of Assembly seat is AUTOMATICALLY QUALIFIED to contest an election to a Local Government Area. The Delta State Government has a bounden duty to ensure that nothing to the contrary happens. The Government has no constitutional power to act in cohort with its House of Assembly to deny any Deltan the right to contest an LGA election if he/she is otherwise qualified to run for a House of Assembly seat under the Constitution.

5.0. The key question therefore is, what are the qualification/disqualification criteria stipulated by the Constitution for a House of Assembly candidate vis-à-vis the ones passed by the Delta State Government in the DSIEC Law? A comparative approach would help to bring out the inconsistencies in the DSIEC Law.

a. AGE OF A COUNCILORSHIP CANDIDATE: Section 106(b) of the Constitution provides that only a person who “has attained the age of thirty years” is “qualified for election as a member of a House of Assembly”. Read with Section 7(4) of the Constitution (above), this implies that only a person who ‘has attained the age of thirty years’ is ‘qualified to participate in an LGA election”. Until this provision of the Constitution is amended, nothing can be done against it. Strangely however, in manifest inconsistency with the Constitution, the DSIEC law provides at its Section 22(c) that a “person shall be qualified for election into the Local Government Area Council if he has attained the age of 21 years for Councilor.”!

b. BEING A REGISTERED VOTER TO QUALIFY FOR ELECTION:

The Constitution does not compel a citizen to be a registered voter for him/her to be qualified to contest a House of Assembly election but the DSIEC Law does so in its Section 22(b). No matter how intended, can the Delta State Government actually add to the qualification criteria already cast in the Constitution? The answer is a NO!

c. SECTION 25 OF THE DSIEC LAW ATTEMPTS TO EXPAND THE CONSTITUTION:

Under the Constitution, the right to be voted for is not conditioned on the discretion of legislators ‘who may be inclined to subject such an inalienable and immutable right to abuse’. In this wise, Section 25 of the DSIEC Law is an attempt to add additional ‘qualifying criteria’ to the Constitution from the backdoor. The Constitution does NOT say one must have the “residency” of a Constituency to be qualified to contest election in that Constituency. The Delta State Government does not have the power to do so in the DSIEC Law. The Constitution does NOT say we must provide “evidence of tax payment as and when due for 3 consecutive years preceding the year of [an] election” before the right to be voted for can enure to us. Being also inconsistent with the Constitution on this score, the DSIEC Law is also a bad, void law. This argument also applies to virtually every item in the said Section 25 of the Law. Even the opening of Section 25 which reads, “(1) In addition to the provisions in section 23 …” is conclusive of the charge of attempting to enlarge the Constitution, as “section 23” of the Law referred to (in the opening of section 25) is almost the same, word for word with Section 107 of the Constitution.

d. EXCLUSION OF DELTANS WITH DUAL CITIZENSHIPS FROM LGA CONTESTS:

Section 107(a) of the Constitution disqualifies a person who acquired the citizenship of another country from an election to a House of Assembly PROVIDED that under Section 28 of the Constitution, such a person is not a citizen of Nigeria “by birth”. The DSIEC Law does not have this most important PROVISO! By this, the DSIEC Law may have been designed to exclude Deltans who are Nigerians by birth but who also hold foreign citizenships from serving the State if they so desire! But this amounts to nothing because the Constitution remains what it is – The Constitution.

6.0. ON THE QUESTION OF ELIGIBILITY TO VOTE:

Section 26 of the DSIEC Law makes it possible for any person who claims that his/her “voter’s card is missing or destroyed” to vote. However, Section 18 of the Electoral Act 2010 (as amended) (an Act of the National Assembly) provides that such a voter must personally apply to INEC at least 30 days before polling day to be issued with a “DUPLICATE” voter’s card to allow him/her to vote. By this, the National Assembly never intended anyone to vote in Nigeria without a voter’s card, as that will be an obvious prescription for rogue elections. The DSIEC Law is therefore in conflict with both the letters and spirit of the Electoral Act in this regard. We think this is deliberately intended for the rigging of election to be conducted by DSIEC.

7.0. It is also pertinent to note that it appears that the entire DSIEC Law is a ‘copied and pasted’ document. Many parts of the Constitution were lazily copied verbatim or with minor changes to make up the Law. Sad! We note further:

a. Section 107(c) of the Constitution expressly forbids a convicted criminal who is under a sentence “for an offence involving dishonesty or fraud (by whatever name called) or any other offence” from contesting a House of Assembly election. As said, this applies with equal force to candidates for LGA elections. The State Government comfortably copied Section 107(c) of the Constitution verbatim in the DSIEC Law but somehow omitted the aspect dealing with convicted criminals! Although this is of little moment with regards to the immutability of the Constitution, can it be inferred that the Government did not like the portion it failed to copy because it is against the election of criminals to the LGAs?

b. Also, Section 107(h) of the Constitution clearly forbids a person who “has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry …” from contesting a House of Assembly election. Again, the DSIEC Law is loudly silent on this important issue!

c. Furthermore, Section 107(i) of the Constitution forbids a person who “presented a forged certificate” in support of his/her qualification from contesting a House of Assembly election. The DSIEC Law is silent on this too!

8.0. In all, the DSIEC Law is a bad law. It is a clear and imminent danger to democracy in Delta State. It will not stand.

Signed:

Prince HENRY EFE DUKU,
(Public Communication & Strategy)
For: DELTA STAKEHOLDERS GROUP (DSG).

 

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