New election dates didn’t forsee rerun possibility

The hype generated by the postponment of the general elections by the Independent National Electoral Commission (INEC) for six week is yet to die. The postponment did not go down well with the opposition, who alleged that the President doesn’t want to handover power because it was certain he was going to lose had the election taken place as earlier scheduled. Another group within the opposition is also alleging that the ruling People Democratic Party (PDP) is rather planning for an interim government when the tenure of the president ends on May 29 as part of the effort to forestall transfer of power if the dreams of All Progressives Congress (APC) of taking over come true. But both the PDP and the president have denied all that. However, a renowned Lagos-based human rights lawyer, Ebun Olu-Adegboruwa in this interview with JOSEPH ONYEKWERE, highlights the position of the law in terms of the tenure of office of the president. He also expressed strong views on the postponment and the concomitant arguments, allegations and counter-allegations.

IN  your view, what is the culpability of INEC in the election postponment saga?

I TRULY believe that a number of factors are responsible for the postponement or rescheduling of the elections. In that regard, INEC has its own portion of the blame, just like all the other organs and officials of the State involved in the polls shift. Specifically, the reason proffered so far, for shifting the election, is that of insecurity. INEC claims that it could not secure sufficient commitment from the military authorities, for the protection of voters and INEC staff, to be deployed for the elections. But beyond this, I am aware, and I believe that all Nigerians are also aware, that INEC was not fully prepared for the election. This can be easily confirmed from the shoddy preparations made for the election itself, at least from the point of view of production and distribution of permanent voters cards. It would have been improper to disqualify such number of Nigerians who were yet to collect their PVCs. So, the responsibility for shifting the polls goes to INEC and the security agencies that could not guaranty security.

I guess you have read all the arguments and allegations. Has the electoral umpire violate the law with the poll shift?

The new poll dates of March 28 and April 11 do not violate the provisions of the Electoral Act. The requirement of the law in relation to election is that elections should be held not later than 30 days to the hand over date of the new administration. The hand over date is May 29 and since the last election is fixed for April 11, that is clearly in excess of 30 days. The other requirement is that the timetable and preparation for elections, display of voters register, etc, should take place not later than 90 days before the election. The voters registered was displayed last year, well ahead of the 90 day stipulation.

To that extent, the new dates announced for the elections are not in violation of the law. But my concern however is that the new dates are too close to the hand over date and they do not seem to anticipate electoral challenges of a possible rerun, in the event that a clear winner does not emerge at the first ballot. In many instances in the recent past, INEC had declared certain elections as inconclusive. The case of Anambra governorship election is still very fresh in our minds. This is why it should have been better to give enough time between the election and the hand over date.

Do we have any ambiguity that demands judicial interpretation in respect of section 135 of 1999 Constitution?  

Section 135(2) of the 1999 Constitution stipulates that a President shall vacate office upon the expiration of four years from the date he was last sworn in. In our present situation, May 29, 2015, will make it four years from May 29, 2011, when the President was first sworn in as President. Section 135(3) of the Constitution states that if the Federation of Nigeria is at war, and the President considers that it is not practicable to hold elections, the National Assembly may by resolution extend the tenure of office from time to time, but not exceeding six months at a time. In this section, certain conditions must co-exist, the most important one being that the Federation of Nigeria must be at war. The relevant question to answer here is this. What is the federation of Nigeria?

Sections 2 and 3 of the 1999 Constitution define the federation of Nigeria as consisting 36 states, the Federal Capital Territory and 774 local government councils. 

It is pertinent to state that the 36 states are not presently at war with each other, neither are the local government councils. What we have is that a certain group of persons, disgruntled and dissatisfied with the state of things in Nigeria, are waging war against three states of the federation. The other 33 states have since joined forces to team up with those three states to curtail the insurgency. That is not a war within the federation. The Boko Haram insurgency does not qualify to declare that there is war in the federation of Nigeria. The second condition is that there must be a decision of the President that the federation is at war and because of that, it is impracticable to hold elections. The President has constantly stated that the elections will hold. So there will be no need to consider tenure extension. The other condition is that the National Assembly is the only organ empowered by law to extend the tenure of any government. The present National Assembly, that refused to extend emergency rule, will not likely extend the tenure of this present government.

If these facts exist, why the fear for Interim Government?

I cannot put anything past politicians. So if there is a perception that there may be an interim government, that may well be true and it may not be true. The fact is that the 1999 Constitution does not recognize an interim government. The only system of government recognized and sanctioned by the Constitution is that of a democratically elected government and since an interim government does not qualify as such, it will be an illegal contraption that will not command the legitimacy of the people of Nigeria, to be in power.  Section 1(3) of the 1999 Constitution states clearly that the Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons, take control of the government of Nigeria or any part thereof, except in accordance with the provisions of the Constitution. Since the Constitution does not anticipate or recognize an interim government, any one involved in such a plan will only be plotting a coup against the federation and the people of Nigeria.

In the light of all the above, I passionately appeal to all proponents of such idea, of an illegal interim government, to jettison it and allow the elections to go ahead as scheduled. Power belongs to God and nothing should be done to give the impression that human manipulation and strategy can guarantee power.

Will the new date affect the practice direction of Election Petitions?

The present position of the law is that all cases relating to elections should be determined and concluded within 180 days. This is the requirement of the Constitution and being the organic law, it overrides all other laws and practice directions. Given that elections will hold on March 28 and April 11, it is difficult to imagine that all cases of election petitions will be concluded before the handover date of May 29. What should happen is that the person announced and returned by INEC as the winner of any election should be sworn in to assume office, so that there will be continuity in government. Then the cases will continue and any one declared by the court as winner, will automatically take over the reigns of power, if he is not the one already sworn in. The bottom line in all these is that there should be an end to elections and transition Programmes. As we are presently, everything is on hold. Politicians have abandoned their offices for campaigns, no new policy decisions are being taken and investors are wary and cautious. Nigeria is presently at a stand still. This is so much a price to pay for democracy, and as such, all Nigerians should look forward to a definite conclusion of the electoral process, so that the wheel of progress of Nigeria, can be put in its proper shape again.