Outspoken lawyer and politics analyst, Dr Kayode Ajulo has rendered his legal opinion detailing the palpable implications in the event that the Independent Electoral Commission(INEC) postpones the scheduled February and March general election.
“It is imperative to state that the Judiciary under the leadership of my Lord Justice, the Chief Justice of Nigeria (CJN), Hon. Justice Olukayode Ariwoola, is more than ready. What I have witnessed, is unprecedented in the history of preparation of the Judiciary for election conduct. The CJN and brother Justices have once again displayed and set a record of unmatchable and exemplary leadership in this regard, and the only worthy reward at the moment for his exceptional hard work is to conduct the 2023 election as stipulated.“ he said.
While I understand that the above state- ment has been credited to the Independent National Electoral Commission (INEC), I do not share the view that INEC would have made such statement at this crucial and eleventh hour.”
My view is grounded against the backdrop that INEC, as the sole organ responsible for the preparation and conduct of elections in Nigeria, is well abreast with the relevant position of the law, and same would be lax to make such comments or publication.
Nevertheless, for the purpose of this discourse and exposing the position of the law and for the enlightenment of the unlearned, I find it pertinent to state my views.
Elections are the cornerstone of any democratic governance and political stability. Through elections, governments obtain the democratic mandate. They are a procedure typical for democratic systems, and Nigeria is a democratic country.
Smooth and uninterrupted conduct of elections as and when due, strengthens democracy, as every election is a sort of advancement of democracy.
Also, elections are pivotal to the quality of a country’s governance and can either greatly advance or set back a country’s progress, depending on its quality and credibility.
The Role of INEC in Elections
In recognition of the significance of elec- tions, our grundnorm, the Constitution of the Federal Republic of Nigeria 1999 (as amended) (“Constitution”) provides in Section 132 (1) thus:
“An election to the office of President shall be held on a date to be appointed by the Independent National Electoral Commission in accordance with the Electoral Act.”
Additionally, Section 178 provides that:
“An election to the office of Governor of a State shall be held on a date to be appointed by the Independent National Electoral Commission in accordance with the Electoral Act.”
These above constitutional provisions have therefore recognised elections, and also recognised Independent National Electoral Commission (INEC) as the institution saddled with conducting elections in Nigeria.
Section 153(1)(f) provides for the creation of INEC. While Section 153(2) and paragraph 15(a) of Part 1 of the third schedule to the Constitution empowers INEC to conduct elections. The paragraph provides thus:
“The commission shall have power to organise, undertake and supervise all elections to the offices of the President and Vice President, the Governor and Deputy Governor of a State, and to membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation”.
INEC & Postponement of Elections
The above are the fundamental pillars guiding the conduct of elections in Nigeria by the umpire saddled with that responsibility, which is INEC. It is also imperative to note that, INEC is empowered to postpone an election even after a date has been scheduled for the conduct of the election in prevailing circumstances.
The relevant law is the Electoral Act. Section 24 of the Act provides as follows:
24.—(1) In the event of an emergency affecting an election, the Commission shall, as far as practicable, ensure that persons displaced as a result of the emergency are not disenfranchised.
(2) 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
Suffices to state that the above provisions are in pari materia with repealed Electoral Acts, and as such, same has been given judicial interpretation by the courts such as Dibiagwu v INEC(2012) LPELR-9831(CA), Nwoko v Osakwe & Ors (2009) LPELR- 4652(CA), Buhari v INEC (2009) NWLR (pt 1130) pg. 116. The Supreme Court in Sylva v INEC (2018) 18 NWLR Pt 1651 Pg. 310 at Pg. 348 endorsed the powers of INEC to postpone elections, to act urgently in aid to meet any emergency which occurs unexpectedly and could cause danger to innocent lives on the polling day.
The underlining factor however, is that INEC must ensure that persons displaced as a result of the emergency are not disenfranchised.
As a corollary to the above, it is important to state that the Commission has the responsibility to advise the country on when it is suitable to conduct an election, mostly when there are unavoidable and critical circumstances that cannot be managed. The only truth is, there is no pressing and unmanageable situation in the country at the moment, that calls for election postponement. Unless INEC has failed, in its own preparations of over three years.
Since the advent of the Fourth Republic and Nigeria’s return to democracy, the country has had to deal with some surmountable security situations in one region of the country or the other, especially in the areas mentioned by INEC as excuse to propose a postponement, and I cannot remember a point when that has affected a major election owing to effective preparation in the area of security and other exigencies.
It is therefore, utterly disquieting and disturbing, to receive such allegation from INEC that suggests that 2023 election may be postponed due to insecurity in certain parts of the country, like the South East and North East. The simple reason being that, in the past, we have had two different elections that were conducted in the midst of heightened insurgency and insecurity, and one can only wonder what magic or tactics were employed to pull those elections off? Are those tactics unworkable at this time, when there is a mellow in insecurity problems?
Why does 2023 elections seem to be the exception?
And, whether there is more to this situation that INEC is not telling us. It is no news that the whole nation seems to be holding its breath in anticipation of the upcoming elections and the anxiety of Nigerians regarding the elections is almost palpable.
Why then should INEC believe that postponing the elections is in any way a good idea, considering the ‘special circumstances’ surrounding this particular elections?
Now, it is also necessary that we cast our minds back to the 2015 elections, during Dr Goodluck Jonathan’s tenure as President. In the months leading up to the elections, the news circulated in the media was that a whole State had been overrun and claimed by insurgents, and that several Local Governments were under their control.
At the time, the narrative being mongered was that the elections were the solution to Nigeria’s insurgency problem, as General Muhammadu Buhari was the messiah that would come and save Nigeria from itself. Now, the essence of revisiting this is that, if at that time where, according to media reports, insurgency was at an all-time high, the elections were still successfully conducted, what begs for question now is, why does it now seem like conducting the 2023 elections in February as prescribed is an impossibility, even as Government has constantly reassured us that everything is under control and security in our nation is intact?
As a legal practitioner, I always opt to view things through the lens of the law; therefore, we must first of all consider the legality of conducting elections. It is no news that the Constitution is supreme and its provisions sacrosanct, and in order to successfully marshal the point, we must first look to the provisions of this Constitution.
Section 40 of the Nigerian Constitution provides for the right of persons to form a political party or association. It states that:
“Every person shall be entitled to as- semble freely and associate with other persons, and in particular he may form or belong to any political party, trade union, or any other association for the protection of his interest, provided concerning that the provisions of this Section shall not derogate from the powers conferred by the Constitution on the Independent National Electoral Commission the Political Parties to which that Commission does not accord recognition”.
Section 78 of the Constitution provides that the registration of voters and the conduct of elections, shall be subject to the direction and supervision of INEC.
It can be deduced from the aforemen- tioned sections, that the Constitution as the apex law of the land recognises the right of Nigerian citizens to form and belong to the political parties of their choice, it recognises the existence of INEC, as well as its responsibility for the registration of voters and the conduct of elections.
We can therefore, infer that the Constitution recognises the legality of the conduct of elections, which is one of the essential and inviolable features of democracy.
In addition to the Constitution, the Electoral Act of 2022 (Electoral Act) also recognises and makes provisions for the legitimacy of the conduct of elections in Nigeria. Section 1 of the Act provides for the establishment of INEC, while Section 9 makes provision for the creation of the National Register of Voters and voters’ registration, it provides:
“The Commission shall compile, maintain, and update, on a continuous basis, a National Register of Voters (in this Act referred to as “the Register of Voters”) which shall include the names of all persons— (a) entitled to vote in any Federal, State, Local Government or Federal Capital Territory Area Council election; and (b) with disability status disaggregated by type of disability”.
Section 6 of the Electoral Act, 2022 provides:
“There is established in each State of the Federation, Federal Capital Territory and Local Government Area, an office of the Commission which shall perform such functions as may be assigned to it by the Commission”.
The preceding sections of the Constitution and the Electoral Act, make it abundantly clear that elections in Nigeria are legal, indispensable to a democratic State, and are fundamental in upholding the pillars of democracy in Nigeria.
At this juncture, there’s the need to interrogate the functions and duties of INEC vis-à-vis her commentary on the state of the nation’s security, which with all intent and purposes, has patently created palpable panic and confusion by hinting that elections might not hold in Nigeria, though the INEC Chairman, has since debunked this, claims that the elections will hold and not be postponed, no matter what.
INEC’s statutory function is to organise and monitor elections. Any fear the institution might have should be relayed to the executive arm of Government, and allow the executive to decide accordingly.
Preparing for elections is not a day’s job. As an international observer to the United Kingdom (UK) in the 2015 general elections, I noted that it took them 16 years to prepare for the election. INEC should learn lessons from that.
I salute the National Assembly for their role in the build up to this election. Dr Ahmad Lawan and Hon. Femi Gbajabiamila’s led Legislative Houses, the Senate and the House of Representatives have done tremendously well in discharging their duties. They have passed the Electoral Act, 2022 to institutionalise credible elections in Nigeria.
The Judiciary, has also been exception- ally and actively alive to its responsibili- ties. Most cases emanating from political parties primaries have been effectively dispatched. Even as of this time, 8.17pm of penning my thoughts on this matter, we are still in Markudi, Benue State, to ensure that all election petition issues are resolved to give way to a free, fair and credible elections come February and March.
Intensive training of Lawyers and various law firms for election conduct and management purposes, is ongoing. Every hand is on deck as far as the Judiciary is concerned, and it is ready to deliver speedy and quality services to ensure the success is the 2023 elections. There is harmonious coordination of the Judiciary across States, with respect to the forthcoming 2023 elections.
It is imperative to state that the Judiciary under the leadership of my
Lord Justice, the Chief Justice of Nigeria (CJN), Hon. Justice Olukayode Ariwoola, is more than ready. What I have witnessed, is unprecedented in the history of preparation of the Judiciary for election conduct. The CJN and brother Justices have once again displayed and set a record of unmatchable and exemplary leadership in this regard, and the only worthy reward at the moment for his exceptional hard work is to conduct the 2023 election as stipulated.
The buck then lies with the President as the head of the Executive, to ensure that Nigerians are safe and can exercise their franchise in the 2023 general elections. The primary purpose of government is the security and welfare of the people. See Section 14 (2)(b) of the Constitution. This implies that citizens must be able to carry out their civic duties, in an atmosphere of peace and safety.
It is therefore, expected that elections which are backed by the law, must take its course, and it is the duty and responsibility of the State to deploy every apparatus to ensure a harmonious platform for every citizen to exercise their Constitutional guaranteed freedom of choice in any given election.
It must be pointed out that, may the day never come in Nigeria when non- State-actors would intimidate the State apparatus and institutions, to the point where the government will not be able to protect its citizens to perform their civic responsibility.
In conclusion, it is important to state that, for elections to be conducted, there must be an existing government armed with a responsibility to ensure that not only that the elections are conducted freely and credibly in a safe ambiance, but also that the law takes its due course. This fact is important, as it is a reflection of the Latin phrase Fiat justitia ruat cælum which means ‘let justice be done, though the heaven falls’.
We must therefore, understand that it is not impossible that the heavens may fall and injustice may reign, but, rather, there is the existence of certain figurative pillars holding up the heavens and ensuring that justice runs its due course.
These pillars are represented by the various governmental institutions we have in Nigeria, which are responsible for ensuring a free and fair election, that at the end of the day, justice prevails above all else. Examples of these institutions are the Independent National Electoral Commission, INEC, the Judiciary, the Armed Forces, Police Force and the Legislature.
As it is, there is palpable panic and confusion in the land. It is even affecting businesses. For instance, I am representing a client in an international transaction that has had to be put on hold because of the anxiety surrounding the 2023 elections.
I therefore, call on the President and the Commander-in-Chief of the Armed Forces, H.E Muhammadu Buhari, to address Nigerians as the Chief Executive Officer of the country, on whose table the buck stops. The President should address
the situation in the spirit of preserving our precious democracy, and allay our fears.
Dr Ajulo, Principal Partner, Castle Law Chambers, Abuja