Mr Olisa Agbakoba, SAN; Prof. Pat Utomi and Mr. Femi Falana

By Innocent Anaba, Clifford Ndujihe, Wahab Abdullah, Charles Kumolu & Nwakanma Chukwuma
LAGOS—AHEAD the Independent National Electoral Commission, INEC’s meeting with the National Assembly on Monday, the legal implications of its proposal to postpone the 2011 polls to April have continued to raise dusts in the polity.

Leading legal practitioners yesterday waded into the matter, with some urging re-amendment of the 1999 constitution to accommodate the fresh scenario and others canvassing clarifications on the grundnorm to be used.

INEC Chairman, Prof. Attahiru Jega, had two weeks ago, scheduled the elections for next January.

However, he told leaders of political parties last Tuesday that the January date was inadequate to conduct a credible election and pleaded for a shift to April, a move that requires amendment of the recently amended 1999 Constitution and 2010 Electoral Act.

Among those who spoke on the issue yesterday, were former President of the Nigerian Bar Association, NBA, Mr Olisa Agbakoba, SAN; former Attorney General and Commissioner for Justice of Abia State, Chief Solo Akumah, SAN; former presidential candidate and protem National Chairman of the Social Democratic Mega Party, SDMP, Prof. Pat Utomi; Yusuf Ali, SAN; Emeka Ngige, SAN; Mr. Femi Falana; Lagos State Chairman of African Renaissance Party, ARP, Mr. Udoka Udeogaranya; and a lawyer, Mr. Kunle Adegoke.

Utomi commends Jega

Endorsing the postponement, Utomi, who has declared that he would contest the 2011 presidential election, commended Jega for being honest with the difficulties he was facing.

He said: “I participated last Tuesday in INEC’s meeting with party chairmen in Abuja. The voters’ registration process and timetable were reviewed. There is no question that we are not ready for elections. The big question that has not been posed is why?

The convenient excuse is that we have a new commission. This goes to the heart of the reason these elections are so important to change the leadership of our country at all levels so we can have people who are committed to building institutions rather than relying on one strong man leading an agency of government.”

Urging that the INEC be given ample support to succeed, Utomi said he would make a formal declaration for the presidential race in three weeks time.

Olisa Agbakoba who raised concern over what he called the “conduct of the 2011 elections on the basis of an invalid constitution,”said the country at present had two possibly valid constitutions.

He said: “Nigeria is at the point where it has recognised that free and fair elections are the pathway to national survival, growth and development. The appointment of Prof. Jega as chair of  INEC  has given confidence to all Nigerians. So far, so good, though INEC seems to be working on a very tight schedule.

“INEC’s request for extension of time to start the election really comes as no surprise but the concern is under which constitution would the extension of time be treated. I need not say that a valid constitution is vital to credible elections. Nigeria at present has two possibly valid constitutions. The courts will hopefully soon declare which is the valid constitution.

“The first possibly valid constitution is the 1999 Constitution. The second possibly valid constitution is that amended by the National Assembly without presidential assent. It is my considered view that the constitution of Nigeria 1999 (un_amended) is the valid constitution.

“Until the court declares a valid constitution, the present challenge is whether INEC can request for extension of time under what is arguably an unconstitutional constitution. The point at issue about the Constitution is whether the President should assent to the Amendment. The National Assembly says no. The Nigerian Bar Association says assent is required and has gone to court on the matter. I am in court as well.

“The clear and present danger looming ahead of us is the conduct of the 2011 elections on the basis of an invalid constitution. This point has been missed by the political parties which seem more interested in political declarations and jamborees. I am of the view that INEC should seek the advice of the Attorney General as to which is the valid Constitution.

I also call on the President to invoke his powers under Section 5 of the 1999 Constitution, by directing the Attorney General of the Federation to approach the Supreme Court for a declaration. This matter needs to be treated as a matter of urgent national importance should we hope to have credible elections in 2011.”

On his part, Akumah said: “Everything is possible if those that will take part in the process are ready to cooperate and see it as a call to national duty. It is only a small area of the constitution and the Electoral Act that need to be amended. But if they are unable to effect the amendment, then INEC will have no choice but to follow their earlier programme. But it will make more sense if they are given enough time to do a thorough job.”

For Adegoke, there is the need to extend the general elections time table, so that INEC would be able to deliver to Nigerians, a good voters’ register.
He said: “In view of the request by INEC for the extension of the time table, there will be the need to have an amendment to the constitution to accommodate it. We are looking at a situation where we want a credible elections and for that to happen, INEC must have time to do a proper job. Assuming that we have a comprehensive, complete and valid voters’ register, there would be no need for the extension.

Remember, we are talking of registering 70 million Nigerians and if it must be done, it should be done well.

He added: “The amended constitution does not need to go to the states, one after the other. It could be sent through email and the state Houses of Assembly could re-convene, debate and pass it, then send back to the National Assembly, which would also sit, debate and pass it.”

Speaking in like manner,  Udeogaranya asked the INEC to also demand a slight amendment of articles 133. (1) (b) and 179. (2) (b) of the 1999 constitution in order to change the word ‘total votes cast’ to ‘total valid votes.’

He also noted that the  difference in the words had cost so much damage to the judiciary and polity, saying that a change would boost to INEC’s determination of conducting  credible elections in 2011.

“As a major stakeholder of 2011 Nigeria general elections, I would also like to use this medium to put a request the INEC chairman that while he would be appealing to the National Assembly for necessary constitutional amendment that will allow INEC schedule general elections in April 2011, to also demand a slight amendment of our constitution on article 133. (1) (b) & 179. (2) (b) on the word total vote cast to read total valid vote cast which can now form the basis of calculating out the correct percentage in fulfilling article.”

Contributing, Malam Yusuf Ali said: “The only solutions out of the present logjam is for the National Assembly to amend the constitution and the relevant portion of the Electoral Act to accommodate the present predicament. This will not in any way cause constitutional crisis. However, it is expected that President Goodluck Jonathan should sign the amendment immediately the National Assembly finishes with its amendment.”

On his part, Ngige said: “The decision to shift the date is most sensible and realistic thing INEC could have done in the circumstance.

The earlier fixture of election was a big mistake by INEC arising mainly from the relative inexperience of INEC boss and some of his national commissioners. So the March-April 2011 is the most practicable and plausible time to hold a free and fair election.

All that is needed now is for the National Assembly to pass an amendment to the 2010 Electoral Act inserting a new commencement date i.e “That this Act shall take effect with effect from October 1, 2011.”

For Falana, “the shift in the election date as well as the amendment into the Constitution, would not in anyway affect anything done now. In spite of the fact that there are cases in court on the same issues, the pronouncement of the court will not have retrospective effect in anyway.

What is expected of the National Assembly is for them to amend the constitution and the Electoral Act, send same to the President for assent, even if they are not comfortable with that. After this, they can go to the Supreme Court for the interpretation of the controversial provisions. So if the court said ‘yes the President must assent the amended provisions,’ so be it, they have nothing to lose, if otherwise, they have nothing to lose too. I do not see any problem arising from the present situation.”