By Mike Ozekhome, SAN
FOR quite some time, the print, electronic, social and other Media have been flooded with heated discussions, debates and sometimes, recriminations, over the call by the National Security Adviser, on INEC to postpone the general elections due to security and logistical reasons. He was said to have concluded his observations by pointedly telling Professor Attairu Jega, “It costs you nothing, it’s still within the law,”.
As expected, this piece of advice has generated a flurry of comments and fervent opposition, from all sides of the divide. In the light of the ruckus it has generated, it is apposite to examine the provisions of the laws of the land with a view to determining if indeed, INEC has the power to postpone elections.
The necessary corollary question, if it has such powers, is, whether it is expedient for INEC to postpone the elections as is being advised by the NSA?
Let me quickly enter a caveat here, in this era of political brinkmanship, when, whatever one says or writes, is interpreted from a political context.
Although I am not a part and parcel of any of the major players and stake holders to determine the security implications (NSA, CDS, CA, CAF, CNS, IGP, Customs, Immigration, Civil Defence, etc), or about the feasibility of holding the elections (INEC), I still believe that the elections should go ahead, since Nigerians have invested time, energy, money, hopes and high expectations in the election and its outcome.
It is better to have an imperfect election than allow possible uprising by angry Nigerians who may, rightly or wrongly, feel that there is a hidden agenda somewhere in postponing it.
First, let me attempt a wholistic discussion of the legal organogram and possible spillover effects, if the elections go ahead as scheduled, on February 14, 2015.
Section 25(1) of the Electoral Act, 2010, as altered, provides as follows:
Elections into the offices of the President and Vice President, the Governors and Deputy Governor of a State, and to the Membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation shall be held the following order-
- Senate and House of Representatives
- Presidential Elections; and
- State House of Assembly and Governorship Election
Under 26(1), it is provided thus:
Where a date has been appointed for the holding of an election, and there is reason to believe that a serious breach of the peace is likely to occur if the election is proceeded with on that date or it is impossible to conduct the elections as a result of natural disasters or other emergencies, the commission may postpone the election and shall in respect of the area, or areas concerned, appoint another date for the holding of the postponed election provided that such reason for the postponement is cogent and verifiable.
From the fore-going provisions of the Electoral Act, it is abundantly clear that INEC indeed has the power to postpone elections, if it desires to. Since it is the only entity vested with authority to postpone elections, then, it is only INEC’s body language, utterances and actions that should be of utmost, or any importance, to us, not the sophistically and intensely demagogic verbalisation of egotistical sentiments of political parties, and the vociferousness of their principals and foot-soldier advocates. So then, what is INEC’s body language? What can be deciphered from INEC’s intentions as evinced by the utterances of its officers?
In a rather swift response, the Independent National Electoral Commission (INEC), on its part has maintained that it is working towards making sure that the general elections fixed for February 14 and 28 hold as scheduled (Watch Channels television, 23rd January, 2015).
Indeed, in a keynote address titled, “Mechanism in place for Election Security and Violence in Elections”, at the launch of the project, “Mitigation of Violence in Elections”, “MOVE”, organized by The International Foundation For Electoral Systems, IFES, Jega said INEC was committed to holding the Presidential election on February 14.
He clarified that the question of postponing the election had never been discussed by INEC, and no such decision taken. However, the same Chairman of INEC, Professor Attairu Jega, was earlier reported to have unambiguously expressed his reservations about conducting elections in some parts of the country, especially, the three North-eastern States of Borno, Adamawa and Yobe. He had said (watch Channels Television Video Clip of the 12th January, 2015).
A place like Borno State, unless something is done about those that have been displaced, even return for the governorship might be difficult, if not impossible under the circumstances..to be realistic, we must say that it may be impossible to do elections everywhere, in every local government, in every constituency in those three states,
Gleaning from the above utterances of the INEC, one can deduce that Jega means that the elections must be held as scheduled, even though, the three States of the North-east will, for now, be excluded.
This position of the electoral body appears unassailable, going by the wide discretionary powers donated to it by the Electoral Act, to postpone elections in certain areas for reasons stated in the Act, especially if the postponement concerns the Presidential, Governorship, National and State Houses of Assembly.
Holding of an election
In the case of ILLIYASU V. SHUWAKI & ORS.(2012) LPELR-SC.17/2012, the Court of Appeal, interpreting section 27 of the Ectoral Act 2006, which is de verbo in verborum the provision of Section 26 of the Electoral Act, 2010, as altered in 2011, held, per Okoro, JCA, thus:
“Under section 27 (1) of the Electoral Act, 2006, an election may be postponed. It States:- “27 (1) where a date has been appointed for the holding of an election, and there is reason to believe that a serious breach of the peace is likely to occur if the election is proceeded with on that date or it is impossible to conduct the elections as a result of natural disasters or other emergencies, the Commission may postpone the election and shall in respect of the area, or areas concerned, appoint another date for the holding of the postponed election.”
See also, the cases of DIBIAGWU v. INEC (2012) LPELR-9831(CA); PEOPLES DEMOCRATIC PARTY v. CHIEF ANAYO ROCHAS OKOROCHA & ORS. (2012) LPELR-SC.17/2012.
There is no iota of doubt that, the situation in the North-east is well captured by the provisions of Section 26(1) of the Electoral Act 2010, above, as prevailing conditions upon which the electoral body can invoke its discretionary power as given to it under the section to postpone an election, appear to exist. What the Electoral Act demands of INEC is that the reasons for the postponement must be “cogent and verifiable”. Can it be said that the reign of terror and insurgency in the three North East States of Adamawa, Borno and Yobe, do not amount to such “cogent” and “verifiable” reason?
It is however submitted, that with regards to the Presidential Elections, unlike the Governorship and National Assembly elections, any postponement of elections in any part of Nigeria will inevitably raise a labyrinth of constitutional difficulties and challenges.
Unlike other elections, a person contesting for the position of the President of the Federal Republic of Nigeria, has the entire country (North, West, East, South), as his primary and immediate constituency. (See Section 134 of the Constitution of the Federal Republic of Nigeria, 1999, as altered.). Thus, when elections are conducted in the Country with certain parts of the country being excluded, can it still be said to be a full presidential election conducted in accordance with the provisions of the Constitution of the Federal Republic of Nigeria, 1999, as altered? I dare say NO!
The Constitution itself must be resorted to in this case to buttress the legal and constitutional impregnability of my position as stated above.
Section 132(4) of the Constitution expressly provides as follows:
For the purpose of an election to the office of President, the whole of the Federation shall be regarded as one constituency.
Thus, seen from the clear provisions of the supreme law of the land, every part of the country is regarded as a single constituency in a presidential election. This being a rigid constitutional provision, can the discretionary power to postpone elections as granted INEC under Section 26(1) of the Electoral Act 2010, be read in pari passu this provision to mean that INEC can postpone the Presidential Election in some states, for example, conduct election in only 33 States and the FCT? Can the Constitution then be circumvented by simply declaring as winner, the individual who scores the highest votes and 25% of the votes cast in two thirds of these 33 States and the FCT? The answer is in the negative.
This web of difficulty is even further magnified, if we painstakingly consider the somewhat inflexible provisions of Section 134 (1) of the Constitution. The Section provides:
A candidate for an election to the office of President shall be deemed to have be been duly elected, where, there being only two candidates for the election –
(a) he has the majority of votes cast at the election; and
(b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja.
(2) A candidate for an election to the office of President shall be deemed to have been duly elected where, there being more than two candidates for the election-
(a) he has the highest number of votes cast at the election; and
(b) he has not less than one-quarter of the votes cast at the election each of at least two-thirds of all the States in the Federation and the Federal Capital Territory, Abuja. (Underlining ours for emphasis)
What the Constitution insists on is “at least two-thirds of all the States in the federation and the FCT, Abuja”. This means 25% of 36 States and FCT, Abuja (“all the States in the federation and the FCT, Abuja”). It did not say 25% of 33 States and FCT, Abuja.
Sifting from the above provision, it is unarguable that before INEC can declare any person as dully elected for the position of the President, he must have (1) scored the highest number of votes; and (2) must have scored a minimum of one quarter votes in two-thirds of ALL THE STATES IN THE FEDERATION and the FCT. This being the case, can INEC then hide under the provisions of section 26(1) of the Electoral Act, 2010, to postpone the presidential election in some three states of the federation, while overlooking the more robust and supreme provisions of the Constitution?
Will it not be a repeat of the difficulties the apex Court faced in interpreting a similar provision of Section 134 of the 1999 Constitution in the 1979 Constitution in the chequered case of Awolowo v. Shagari (1979) NSCC 87, even in greater propensity?
Does it then mean that Section 26(1) of the Electoral Act, 2010, as altered, is in conflict with the above provisions of the Constitution? The answer is in the negative. Rather, the section is complimentary to the provision of the Constitution, having been made in pursuance of the more encompassing general provisions of the Constitution. To this end then, INEC has the power to postpone Elections at the occurrence of the situations raised under the Electoral Act.
These are (1) where there is reason to believe that a serious breach of the peace is likely to occur if the election holds on February 14, 2015; (2) if it is impossible to conduct the elections as a result of natural disasters or other emergencies. There is no doubt that “other emergencies” in section 26 (1) of the Electoral Act, 2010, as altered, can and must necessarily, include the devastating Boko Haram insurgency in the North East. This is where it ends. It is however submitted that INEC cannot, and does not have the power to postpone election in one part of the Country (North East), for purposes of the Presidential Election, while at the same time, simultaneously going ahead to conduct Presidential election to the same office in other parts of the country (33 States and FCT, Abuja), as doing so will be ultra vires its powers and will amount to a patent and gross circumvention and ultimate subversion of the Constitution itself.
It is therefore submitted in the light of the provisions of the laws of the land that while INEC has the power to postpone elections, it cannot postpone the presidential election in some areas and conduct same in other areas.
Every part of the country must simultaneously witness and experience the voting process in a presidential election. Where it is not feasible due to prevailing security circumstances to conduct election in any part of the country consequent upon the conditions stated under section 26(1) of the Electoral Act, 2010, INEC must postpone the entire election.
For the avoidance of doubt, any person with any contrary position must have to answer the following questions: 1. Can elections in 33 states out of 36 be deemed to the constitutional requirement for presidential elections having regard to meet the clear provisions of Section 132 and 134 of the Constitution? (2)
If Elections are conducted in 33 states of 36, can the winner in that election be sworn into office when election in the other three states have been temporarily or perpetually kept in abeyance? (3) If the winner of an election conducted in 33 out of 36 states cannot be sworn into office consequent upon the afore-mentioned reasons, will it not invite chaos, anarchy and general insurrection? (4) Assuming it is eventually agreed that elections in the other three states must be concluded before the winner of the election is sworn in (as he cannot be constitutionally be sworn in without election in all the states), is it not as good as postponing the entire presidential election itself?
This is more so having regard to the fact that by the provisions of section 25 (2) of the Electoral Act, 2010, as altered, election to the office of president shall be held not earlier than 150 days and not later than 30 days to May 29, 2015. This provision means that INEC, if it can give “cogent and verifiable” reasons, without doing violence to sections 132 and 134 of the 1999 Constitution of the Federal Republic of Nigeria, as altered, may go ahead and postpone the election, up to a maximum of April 28, 2015, which is 30 days before the effluxion of the present President’s tenure which ends on May 29, 2015. My advice to INEC is simple: INEC must tread with extra caution and examine the legal, political, security and moral implications for the cohesion and stability of Nigeria and the integrity of the entire electoral process.
INEC must therefore read the highly wired political barometer of the Country, the sensibilities and eagerness of Nigerians to vote, the security implications, of its actions or inactions, the moral burden cast on it in its final decision, and the need to ensure that there is still one Country called Nigeria after the elections.
Jega had carefully used the word “unless” in his statement earlier referred to. It means the situation is not afterall hopeless. Something can, indeed, be done, to allow for votes in the three North East States of Borno, Adamawa and Yobe. Afterall, even in war ravaged Countries of the World where there exist millions of internally displaced persons (IDPs), elections are still conducted. All that is required of the Federal Government is the political will and the need to spread a regime of security in the three affected States of Borno, Yobe and Adamawa. I urge INEC to go ahead and hold the elections in ALL THE STATES of the Federation, excluding none, so as to prevent serious constitutional crisis, of monumental proportion, which will pale in to insignificance, the 1979 Shagari – Awolowo twelve – two – thirds votes’ legal debacle.
- Ozekhome is a lawyer and rights activist.