Comments on the Legislative Drafting implications of the recent judgment of the Federal High Court, Umuahia

By Tonye Clinton Jaja

On Friday 18th March 2022, it was reported that :

“A Federal High Court in Umuahia Friday nullified the controversial Section 84(12) of the Amended Electoral Act and ordered the Attorney General of the Federation (AGF) “to delete it forthwith”, saying that it is unconstitutional, illegal, null and void.”

Assuming (though not conceding that) the judge was right and correct in stating that section 84(12) of the Electoral (Amendment) Act, 2022 ought to be deleted because of its alleged violation of the provisions of the 1999 Constitution of the Federal Republic of Nigeria (as altered).

This is in accordance with section 1(3) of the said constitution which states that any provision(s) of any other legislation that is in conflict with the provisions of the 1999 Nigerian Constitution will be declared illegal.

The “blue pencil rule” is often applied by judges and the courts to delete any provisions of any legislation that are in conflict with the 1999 Nigerian Constitution.

However, the latter part of the judgment wherein the judge directed the Attorney-General of the Federation raises the question: “does the 1999 Nigerian Constitution empower the Attorney-General of the Federation to undertake deletion of existing legislation? Isn’t that the exclusive responsibility of the National Assembly?”

I beg to disagree with some lawyers that have suggested that the pronouncement of the Federal High Court is sufficient and doesn’t require any further input by the National Assembly.

First of all, it is trite law that judges are not permitted to engage in Legislative activity whether to enact or repeal laws no matter how ambiguous the provisions of such a law may appear.

 At best they can pronounce that a particular provision is inconsistent with the 1999 CFRN.

After the pronouncement by the court/judge, it is the duty of the legislature to then, repeal those provisions within such a Legislation. This is because nothing is implied, it has to be explicit.

Furthermore, going by the judgment in the case of Agbakoba vs. Attorney-General of the Federation (2010), the process of enactment or repeal of any provisions of any legislation is not complete if only the President or the National Assembly exclusively acts upon it without passing it on to the other organ of government. In that case, it was held that the assent or signature of the President of the Federal Republic of Nigeria is a required aspect for the enactment of legislation (the amendment/alteration of the 1999 CFRN).

Logically, it follows that only the National Assembly can present a new Electoral Amendment Bill without section 84(12) to the President for assent.

Let me provide a classic example of the reason why it is the exclusive responsibility of the National Assembly to enact a law to give effect to the judgment of the Federal High Court to delete section 84(12) of the Electoral Amendment Act, 2022.

It is not the duty of the Attorney-General of the Federation.

In the year 2004, the former Attorney-General of the Federation constituted a Law Revision Committee to review the Laws of the Federation, 1990 Edition.

 They completed their task and paid LEXIS NEXIS to print copies of the new laws which they named Laws of the Federation, 2004 Edition.

However, those laws were rejected.

It was only after the National Assembly enacted a legislation-Revised Edition (Laws of the Federation), 2007 that gave legal effect to the LFN 2004 Edition before they became legally useful and could be cited in courts of law.

Dr. Tonye Clinton Jaja is the Secretary of the Association of Legislative Drafting and Advocacy Practitioners-ALDRAP