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2011 Elections Threatened? Jega’s Fears and the Confusion at INEC

By Jide Ajani, Deputy Editor

This report takes a queue from last week’s double interview with Chief Richard Akinjide, SAN, and Olisa Agbakoba, SAN, on the dangers ahead of the 2011 general elections and the refusal of the National Assembly to send the amended constitution to President Goodluck Jonathan  for assent.

The response from Professor Attahiru Jega, chairman, Independent National Electoral Commission, INEC, was to scream blue murder.  While previous election umpires had expressed ample readiness for elections that eventually turned out bad, the prognosis for next year’s election, based on the plethora of complaints from Jega are at once dangerous and frightening.

In The Beginning
On Wednesday, July 21,     2010, at night, Jonathan met with the leadership of the National Assembly.  Present were David Mark, Senate President, Ike Ekweremadu, his deputy, Speaker Dimeji Bankole and Nafada, his deputy, Senate Leader, Teslim Folarin, House Chief Whip, Emeka Ihedioha, Senate Opposition Leader, Olorunimbe Mamora and Minister of Justice and Attorney General of the Federation, Adoke, SAN.

Jonathan requested that the legislators help amend the constitution again.

His reason: The need to deliver a good election, the process of which starts with an equally very good and authentic voter register. Jonathan wanted them to employ the use of the doctrine of necessity to stay action on some aspects of the amendment to the 1999 Constitution of the Federal Republic of Nigeria.  Specifically, Jonathan wanted the legislators to engage a process that would lead to the postponement of the 2011 general elections on account of the need by the Independent National Electoral Commission, INEC, to use what was described as “an authentic voter register”.

To the request, the legislators were said to have demurred, insisting that there was no way they could abort a baby that had already been born.

Jonathan made it clear that with the preponderance of opinion in support of a new voter register, the National Assembly has a patriotic and bounding duty to create a process that would lead to the creation of a new voter register.  The implications of Jonathan’s position as presented to the legislators was that election could no longer be conducted in January 2011 as envisaged by the just concluded amendment to the constitution.

*Jega, INEC boss

The legislators said it was not possible to amend the constitution again.
But they created a window for President Jonathan.  They let it be known to him that unless the newly appointed national chairman of the Independent National Electoral Commission, INEC, Professor Attahiru Jega, goes public to make a request for the amendment of the Electoral Act, then the process could begin.

Specifically, they said there were some aspects of the Electoral Act that also needed to be amended.  Reports which reached Sunday Vanguard indicated that at some point, the INEC chairman was called into the meeting.  He was also said to have expressed his concerns, especially when interfaced with the fact that Nigerians expect a free and fair elections.

The INEC boss said given the recent amendment to the 1999 constitution by the National Assembly and the ongoing amendments to the Electoral law, the conduct of elections in the country, especially in 2011 would be directly affected.

Jega’s Request
The following day, a Thursday, Jega said after a thorough and careful consideration of the existing scenario and its determination to ensure that the laws were followed to the letter, “we have sent a communication to the National Assembly requesting modifications to several parts of the electoral law as it considers the bill for a new Electoral Act presently before it.”

He added: “In that communication, we have requested the distinguished and honorable members of the National Assembly to consider the following areas:
“(i). Section 10(5) of the electoral Act: to reduce the time for the end of the registration, updating and revision of the register of voters from 120 days before an election to 60 days. This gives us an additional eight weeks, bringing the total period available to compile a new register to 16 weeks.

“(ii) Section 21 of the Electoral Act: to reduce the time for the completion of supplementary list of voters, integration into the existing register and final certification from the 60 days before election to 30 days.
“That gives us a total of 20 weeks to attempt a ‘salvage’ of the existing register.

(iii) In addition, we have requested the National Assembly to amend section 11(4) of the Electoral Act which is ambiguous and creates the impression that as soon as we announce the notice of elections, registration of voters must terminate.

Jega then noted that though the commission had no illusion that a voter register produced in four months would be perfect, “it would be vastly more trustworthy and capable of producing free and fair elections than the existing one.”
He added: “If the amendments we have proposed scale through in good time, and I must say that initial indications are that the National Assembly is favourably disposed to our request, then we have four months, starting from August, to compile a new voters register for the elections, employing an electronic data capturing system.

Although this is a herculean task considering the size, population and other social and political conditions of our country, we are determined to compile a new, permanent and credible voters register since it is the irreducible minimum for conducting free and fair elections, which is what Nigerians expect from us.”

When Jega said that the “initial indications are that the National Assembly is favourably disposed to our request”, he was merely referring to the tête-à-tête of Wednesday night.

Two Views
There are two views at play: One which says President Jonathan must give his assent to the bill which amended the 1999 Constitution to become an Act and another which insists that Nigerians have spoken and, therefore, the President has no say in the matter.

To amend the 1999 Constitution of the Federal Republic of Nigeria, the troika of the National Assembly (House of Representatives and the Senate), the State Houses of Assembly and President, Commander-in-Chief must necessarily be involved – although the matter is now before the courts.

But the other view held by leaders of the National Assembly insists that once there were public hearings conducted in all the six geo-political zones of Nigeria, views expressed there debated by members of the National Assembly and sent to the state houses of assembly, from where more than the required constitutional majority was gotten and sent back to the National Assembly, then Nigerians have spoken and, therefore, there is no need for any President to assent to it.
Based on the amendment to the 1999 Constitution as passed by the National Assembly having received the resolutions of the state houses of assembly, general elections are to hold in January next year.

One of the questions to ask is, should the matter before the High Court drag and drag unnecessarily, with an eventual outcome that insists that a presidential assent is needed the process would then have to go through its possibly last but one leg of the cycle with the President either assenting or vetoing it within 30days as stipulated by the Constitution, who stands to lose? Nigerians of course!

If he refuses to give his assent, then the National Assembly can override the presidential veto after the 30 days stipulated – that is, if nobody has gone to court to challenge the High Court judgment at the Appeal Court; and then again with another appeal to the Supreme Court for the final judgment.

So, how does that become a problem?  It would become a problem when the courts’ judgments come too late in the day.  But the question some people are asking is: what is the problem with just sending the amendment bill to President Goodluck Jonathan for assent and in the event that he says no, then override it?  Only National Assembly members know.

Jega’s Anxiety
Jega had confessed late July that “to deliver on the specifics in readiness for the voter registration exercise so that we can have our elections in January as constitutionally provided, by the end of the second week of August, we must have been able to achieve the following:

“* We must have been able to decide on the type of software that we would use;

“* We must have also decided on which manufacturer would manufacture the capture machines for us;

“* We must have also decided on the number and types of vendors that we would engage in the event that the manufacturers may not be able to meet our demands;

“* We must have also almost finished negotiations on all of this by the end of the second week of August.

“What we are saying is that by the end of the second week of August, money must have been made available for us to prosecute all that I have listed”.

As a silver lining, Jega also revealed that the executive branch of government, whose responsibility it is to make the funds available “is working to release the funds.

“The executive and the legislative arms of government are working together to ensure a quick release of funds via a supplementary budget”.

But Jega was also quick to add that “in the event that the funds are not made available, then the only option would be for the Commission to clean up the register”.

That, too, Jega made clear, “comes with its own problems.  What we can do is to print the current register as it is, display it so that people can come and make their claims and objections, but that would be it.  If somebody observes that his name is there but the photograph is not his own, then we would still need the capture machines and if we don’t have them, that leaves us with the best and only option of doing this thing, carry out a fresh registration of voters”.

The Crux
This is the third week of August and the funds have just been released.  But even at that, there is no time table yet for next year’s elections.

This is because the issue of the Existing Laws that the Commission is expected to employ in creating architecture for next year’s election is uncertain.

Between the 1999 Constitution pre-amendment and seen as the subsisting legal document in Nigeria, and the amended version without the assent of President Jonathan as claimed by the National Assembly as being the subsisting legal document, INEC has been put in a quandary.

INEC insists that it can not proceed without a clear vision of the version of the constitution to employ.
According to INEC before the appointment of Jega, the out-gone national chairman, Maurice Iwu, had provided two provisional time tables.

If the 1999 Constitution is to be used pre amendment, elections would be held as follows:

National Assembly election:   9th April, 2011.
Governorship/State Assembly election:    16th April, 2011
Presidential Election:                    23rd April, 2011.

If the amended version is to be used, then elections would hold in January thus:

National Assembly elections:      8th January, 2011.
Governorship/State assembly elections:  15th January, 2011.
Presidential Election-  22nd January, 2011.

For INEC, it is not certain when the hoopla over presidential assent would be over and its fears are that there is no indication that the problem is about to be resolved.

Just early last week, the Minister of Justice proceeded to the Supreme Court to seek clarification on the matter.
Before then, former President of the Nigeria Bar Association, NBA, Olisa Agbakoba, had gone before the High Court to seek clarification whether the amended constitution required a presidential assent or not before it becomes law.
All these create a foggy view of how INEC should proceed.


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