ODJE: The Constitution Provides Loopholes For Litigations After Elections

Dr. Akpo Mudiaga Odje, in this interview with HENDRIX OLIOMOGBE, spoke on what is perceived as legal booby traps that could be exploited to influence the forthcoming 2015 presidential election, which was recently postponed by Prof. Attahiru Jega, the Chairman of the Independent National Electoral Commission (INEC). He also spoke on the use of Permanent Voter Cards (PVC) and issues of displacement of persons in the Northeast.

On the Legality or otherwise of the postponement of 2015 elections       

IN retrospect, before the Independent National Electoral Commission (INEC) fired the salvo for the postponement of the elections, the body language of the Commission had already given us a pre-emptive strike in that respect.    

    The fundamental challenge was that a substantial percentage of Nigerians, who are eligible to vote and were duly registered for that purpose, had hitherto not been given their PVCs.     

     Consequently, for INEC to have embarked on an election wherein a large population of the voting strength is disfranchised would have amounted to an act of electoral genocide.

    In addition, over 700,000 Ad-hoc staff are yet to be fully trained and above all, the security challenge in the Northeast is still there.    

    In view of the above, one did not need the clairvoyance of a Nostradamus to predict with precise exactitude the postponement of the elections. 

 What exactly is the role of the INEC as regards the issuance of PVC?  

    Section 16 of the Electoral Act 2010 as amended provides that: “The Commission shall design, cause to be printed and control the issuance of voters’ cards to voters whose names appear in the register;” 

   And Sub-Section (4) thereof posits that: “The Commission may, whenever it considers it necessary replace all or any voters’ card for the time being held by voters.”

    It is axiomatic from the above that INEC has the undiluted and undisputed powers to issue Permanent Voter Cards or Temporary Voters Cards as the case may be. 

In addition, it can change any voters’ card and print as well as design any it considers to be effective, auspicious and expedient.

 How about the fate of Internally Displaced Persons (IDPs)?

    Indeed, this as a potent challenge and danger to the electoral process for 2015. Uptill now, we do not have a fair assessment of the accurate number of IDPs in the country. This can give room for manipulation and electoral shenanigans. 

    There can be no justification for the fact that IDPs from the war-ravaged Northeastern states have PVCs; whereas, persons from areas where there is law and order are yet to get PVCs.  And with the recent attacks in Gombe and Biu, there is bound to be more IDPs and further dislocation on the plans by INEC’s six weeks projection.          

    I think INEC should immediately liaise with the Red Cross, World Health Organisation, the United Nations and its agency dealing on refugees, including our emergency response agency, to give us a fair and accurate amount of these IDPs and those that hav, so far, received PVCs. 

 On the de-registered political parties   

    Indeed, there are instances where parties delisted by INEC subsequently won the cases in cour, particularly the locus classicus of the INEC v. Musa won by the legend, Chief Gani Fawehinmi (SAN) of blessed memory.

    It may pose a threat, however, if the winner can prove that their exclusion did not substantially affect the outcome of the election, then their exclusion will be upheld by the Court. (See Buhari v Yar’adua).

    Did you know that the Hope Democratic Party’s case challenging the 2007 Presidential election of late President Umaru Yar’Adua was pending up till 2012? 

Still on the certificate or no certificate issue involving Gen. Muhammadu Buhari…

    I believe this issue has been over flogged. Gen. Buhari is over qualified by the provisions of Section 131 (d) of the 1999 Constitution as amended. He even has the equivalent of a Master Degree from the War Colleges he attended in the United States and elsewhere. 

    I think the only issue was when he deposed to an affidavit in line with Section 31 of the Electoral Act 2010 as amended, that his WASC certificate was with the Nigerian Army. That was an honest belief, which he can legally justify and/or discharge by providing the relevant documents. 

    The law says education up to Secondary School Leaving Certificate level. It does not ask for certificates. Above all, the definition in Section 318 of the Constitution for Senior School Leaving Certificate includes Primary School Leaving Certificate. In fact, the Constitution says any person who can read and understand to the satisfaction of INEC has the equivalent of Senior School Leaving Certificate for that purpose.      

 There is also the controversial issue of the eligibility of President Goodluck Jonathan for 2015 elections and the constitution…

    The issue of the second term bid of Mr. President has generated a lot of furore in the polity and, perhaps, has even eclipsed the current security challenges of our dear nation.

  This discourse examines the eligibility or otherwise of Mr. President to re-contest in 2015 in juxtaposition with the germane provisions of the 1999 Constitution as amended and Case Law.

   Sections 131 and 137 of the Constitution so far as material for our purpose, have lucidly set out the qualifications and disqualifications relating to the office of the President of the Federal Republic of Nigeria.

  Needless to add that these provisions are clear as well as unambiguous and as such ought to be given their literal and ordinary meaning.

    The first question that arises here, is whether Jonathan in the light of Section 131, qualified to occupy the office and/or contest for the office of the President of Nigeria in 2010 and/or 2011? 

    It is not in dispute that he qualified ex debito justitiae to occupy that office in 2010 and as he did in 2011 after winning the Presidential elections.

The second and crucial question that has now apparently brought out the brouhaha is, whether in view of Section 137(1)(b) above (i.e. regarding having been elected twice to that office), Mr. President is entitled to Re-Contest for the office of President of the Federal Republic of Nigeria in 2015? This is the hub of the matter.

    Before giving an emphatic answer to the second question, some legal and constitutional issues need to be pontificated upon to enable one take a more informed position as the case warrants.

Has Jonathan actually contested twice for the office of President?

    In retrospect, Mr. President contested for the office of Vice President, under Alhaji Umaru Musa Ya’Adua of blessed memory and both were elected as President and Vice-President respectively in 2007. That was the First Office at the federal level President Goodluck Jonathan contested for; i.e. office of Vice President.

     However, in May 2010, our dear President Umaru Musa Ya’Adua passed away and by virtue of Section 146 of the Constitution, Dr. Goodluck Jonathan was sworn in as President of the Federal Republic of Nigeria.

  Indeed, the apex Court has declared in PDP V INEC (1999) II NWLR (Pt. 626) 200 that a Governor and his Deputy both stand for elections as of right, though to different offices. 

Similarly see A.G. Federation V Atiku (2007) 16 NWLR (Pt. 1041) 1 at page 156 paras E-H Mohammed JSC 

     These judgments to my mind, duly affirm the independent electoral standing of both a Governor and Deputy Governor on the one hand and the President and Vice President on the other hand, during and after elections.

  It by no means suggests that by standing as a running mate to the Governor or President as the case maybe, for elections, the Deputy Governor or a Vice President has also contested for the office a Governor and President at the same time! 

That will be a preposterous postulation that will lead to absurdity and grave injustice.

   If we follow that line of propagation, it would mean that Alhaji Atiku Abubakar having contested twice to the office of Vice President with the erstwhile President, Chief Olusegun Obasanjo, Atiku had also contested to the office of President twice, and as such incapable of contesting for the office of President again, after Obasanjo has exhausted his two terms of four years!

    Consequently and flowing from the above authorities when the tenure of late President Umaru Musa Ya’Adua expired in accordance with Section 135(2) therefore, Jonathan contested the first time for the office of President of the Federal Republic of Nigeria in the year 2011.

What is the implication of Jonathan taking the oath of office and oath of allegiance twice in 2010 and 2011 on his second term ambition?

    Another argument has been propounded that, since Jonathan has taken the oath of office and oath of allegiance twice  (in May 2010 when President Ya’Adua passed away and on May 29, 2011 when he was first elected as President), he has thus been elected twice to that office vide Section 137(1)(b) of the Constitution.

    This is not also tenable, as the apex court has now branded the taking of oath of office and oath of allegiance as merely symbolic if not a cosmetic pasturing that does not actually legally affect the tenureship of an elected office.

What will be the duration of the tenure of Jonathan if re-elected in 2015?

    It is lucid from the apex court’s decision in the Marwa’s case above that any Governor vis a vis President elected under the 1999 Constitution is entitled to spend at least four years and at most, eight years if re-elected. 

    Consequently, every Nigerian citizen qualified to be elected as President of Nigeria, has a maximum of eight years to spend in that office if he is elected twice.