JUST recently an Appeal Court in Abuja confirmed that election will not hold in five states of Adamawa, Bayelsa, Kogi, Cross River and Sokoto where five governors returned on re-run elections. But this judgment has received some knocks by legal minds and other stakeholders saying that the judgment did not follow the expectation of the people since the constitution states four years tenure for a governor no matter how many oaths of office he takes. Also reactions have trailed the April 2, 2011 National Assembly election postponement and the subsequent cancellation of elections in some senatorial districts and federal constituencies. A Lagos based human rights lawyer, Ebun Olu-Adegboruwa examines the issues involved as well as the provisions of the Constitution and Electoral Acts in relation to tenure elongation and election cancellations in this interview with JOSEPH ONYEKWERE. Excerpts: How did you receive the news when the Independent National Electoral Commission (INEC) postponed the National Assembly election from April 2 to 9, 2011I received the news of the cancellation with a lot of disappointment. More-so because at that time, people had enthusiastically trooped out in virtually all the polling units of the federation, especially Lagos to exercise their civic responsibility. When I noticed the turn out of the electorate, it shows that Nigerians are now more active in their resolve to ensure that their votes count and choose a leader that will represent them. So I believe that prior to that postponement, the INEC chairman, Professor Attahiru Jega and his team enjoyed tremendous goodwill from Nigerians because of his background, integrity, his antecedents as former President of Academic Staff Union of Universities (ASUU), former Vice chancellor and some one who has been in the progressive camp all along. We believe that he was going to do a thorough job. So to that extent, you discover that a lot of people came out to discharge their civic responsibilities and Nigerians where very orderly. To have abandoned every other thing, to have restricted our movement for the whole day, to have limited us in terms of our activities, only to discover that the elections have been cancelled, I believe that the electoral commission did not do enough, that there were communication gaps. It was not that day that they knew that the vendor did not arrive. INECs expectation was that the vendor would probably arrive that Saturday but that would have been too late to receive materials on Saturday before distributing it. And I am saying that the postponement announcement should have been made on time so that there would have been no need to create the logjam that we were into in the sense that most of the sensitive electoral materials had already moved out. In some cases, people had already voted and seen the ballot papers, which has compromised the integrity and confidentiality of the process. So I received the news of the postponement with a lot of mix feelings, knowing that we may not be able to get enough enthusiasm from the electorates by reason of that cancellation and that may have sent a wrong signal to the people of Nigeria from the electoral commission. Secondly, it exposed the inexperience of the INEC chairman and his team in respect of electoral matters. I know that he is trying to be transparent by even coming out to tell the reason why the election could not hold and I commend him for that. But that shows clearly that enough preparations have not been made towards of the election. I say this because, when the budget of INEC was submitted to the National Assembly, it was N84 billion and a subsequent reversed budget of N9billion and Nigerians were calling on the National Assembly to approve it even when we know that the money was on the high side. But our understanding was that nothing should be in short supply. So, it was unfortunate for INEC to have run into such problems. Of course postponement has thrown up other issues. Small organizations like WAEC, which does not have 1/3 of the INECs budget organize examinations with larger population from year to year. It is a question of supervision, ensuring that things were in place. There is no way the chairman would say that he was not aware that these materials have not arrived as at Friday evening. So he would not have asked Nigerians to go and queue in expectation of the promise of the vendor that was to bring materials from Japan.What does the Electoral Act provide in respect of cancellation or postponement of elections by INEC The duties and functions of INEC in respect of elections are provided for in the constitution and so much of the Electoral Act. The Constitution on its sixth schedule, especially on paragraph (f)14 established INEC. And it states specifically that it has the right to organize, supervise and monitor elections. And the person who has the right to organize, supervise and monitor elections has the right to postpone or cancel elections. So I believe that INEC is vested with the power to cancel, postpone, to reverse and to organize election in a way that meets its own programme. That is why you see that the case that was instituted by the Labour Party in respect of the date of the election could not go far because the judge recognized the constitutional responsibility and power of INEC to organize elections. So the postponement of the elections is well within the ambit of the powers given to INEC by the Constitution of the Federal Republic of Nigeria. However, having said that, a lot of factors will come into force before a national election will be postponed or cancelled. First of all, the provisions of the same Constitution that requires elections to be concluded and determined within a specific period before the end of an administration are added to ensure that elections are concluded at least 60 days before the end of an administration. So before you postpone election, you have to take that into account. That is why people are concerned about the timetable because the constitution has created a straight jacket that we cannot get out of. We must ensure that everything is concluded at least 60 days before the end of this administration and that is May 29. So when you want to postpone an election, you have to consider the effect of that postponement on the target of meeting the Constitutional requirement. Secondly is the issue of logistics. If for instance the election had taken place on Saturday, a political party in Lagos can claim; that a pattern must have been established that would have guaranteed us victorywe were monitoring the way people were voting, we monitored the polls and it was so clearly that we were in the lead. And may be they must have expended so much finance or goodwill to have been able to achieve that, and that the elections have been postponed, they may not be in the same position again to mobilize and campaign. If they eventually turn out to loose in that election, the postponement can be used for a reason for such failures because you have created an unfair advantage in favour of their opponents. I read the case of a senatorial aspirant who said because of the postponement, he lost about N2billion in terms of campaign and all that. So before you postpone, you must look at the Constitutional effect, the financial implication of the postponement to the candidates and to the political parties and then generally, to the electorates. I read the story of an elderly woman who said, I am not going back again. I struggled to be able to come out today, stayed to do accreditation and waited to vote and discharge my civic responsibility. So it leads to election fatigue on the part of the electorates and these are things INEC should have considered before postponing that election. What eventually INEC is trying to do now, by postponing elections in some parts of 25 states is what should have been done that day. INEC should have had sufficient statistics that will show areas where the materials are ready and allow the elections to go ahead because the postponement is being defeated if the elections cannot be held uniformly. Since materials were already in place as at Saturday night in some areas, INEC should have allowed elections to go ahead in those areas. The reasons for cancelling the elections were because we did not want to have staggered elections, yet we have gone back to it now. That postponement was uncalled for, it was premature. And that is why people are now making an allusion to whether there are undercurrents that INEC has not laid before Nigerians that led to that postponement. Maybe, it may be true or not that there are parties that are having undue advantage over others, who put pressure and a lot of propaganda to make INEC postpone that election.You said INEC has the constitutional powers to postpone or cancel elections. Does that include when it is as a result of their own inadequacies The electoral body can cancel elections for reasons of violence or established electoral malpractices. Did the constitution envisage cancellations arising from the mistakes of the commissionWell, like I said, the same thing is to address the issue of the competence to cancel. And I believe that from what I have seen in paragraph 14 of the 6th schedule of the constitution, there is no doubt about the powers of INEC to cancel. But the reason for cancellation is a different thing entirely. Is it by reason of violence, lack of materials, incompetence, logistics or faux majure such as rain, violence or anything. The reason for cancelling is a different thing, but the power to cancel no doubt exists. The reason the cancellation is ill-advised, is very simple. It was as a result of the ill-preparedness of INEC. Do you visit that omission on the candidates Do you visit that omission on the electorates Who pays for that incompetence and inexperience ultimately because in cancelling the election, apparently, Jega is not going to be made to mobilize money from his own personal pocket Whatever resources meant for the re-organisation of the election is going to come out from the Nigerian purse. All candidates will be made to mobilize their supporters afresh. So they are bearing the brunt. Nigerians abandoned their civic activities by way of businesses, by way of meetings and by way of other commitments because of that election.Even though INEC has the power to cancel, I believe that the reason given for the cancellation of April 2 was purely as a result of the failure of the organization. And it was for that reason that we had further cancellation of elections in some federal constituencies.In that case, do you envisage a situation whereby it would open up floodgate of litigations Can there be redress in such circumstancesThe possibility of redress would probably not be on the part of the electorate.Suppose an electorate says he is injured in such circumstanceYes, I read a story of an elderly woman who said, look, It took me so much to come out for the election. I am supposed to be on special drugs, but because they told me that I needed to do accreditation early, I could not eat and take my drugs. I waited there until 12, did accreditation and voted. It is already affecting my health, I cannot repeat the same sacrifice on another election day because I have already done my own bit. Now such a candidate is entitled to seek redress, if for instance the candidate she is to vote for looses the election either from INEC or the election tribunal to say: The sacrifices on my part would be too over burdened and if I had voted along with other voters and my vote had counted, the candidate of my choice could have won the election. But after the election, the only organization or court that can entertain cases on election is the Tribunal and the electorates cannot file a case before the Tribunal. The Tribunal only recognizes petitions, which arises as a result of the elections. The only way such an electorate can succeed if his candidate loses is to work along with the candidate and compile sufficient facts to show that the cancelation affected him negatively. So, such an electorate can only serve as a witness.What if such an electorate files a suit at the regular court as a pre-election matterHe can do so. But the remedy is on the side of the electorate to say:look, the cancelation has affected me negatively and has affected chances of the candidate of my choice. And that as a matter of fact, my preferred candidate lost the election because of the cancelation. The person who won in the rescheduled election should not have won. So he could take a writ in the Federal High Court to determine whether the cancellation was proper and whether sufficient time has been given now for parties to be on the same level in terms of mobilization. Surely there is a right of action on the part of the electorate and also a right of action on the part of a candidate who is able to show through sufficient facts and data that as at the day the election was cancelled, he was leading. And for that cancellation, he would have won the election. That as a result of that cancellation, his finances dwindled, his power of mobilization has been reduced and that there was voter apathy on the part of his supporters who are unable to come out again to vote for him and so he lost the election.Do you think such an action can be sustained if the candidate participated in the rescheduled election No! Once you participate on the rescheduled election, then that right cannot come especially on the part of the candidate because you would have insisted on the perceived hitches that you had. But even if you participated in the election and there are other reasons to challenge the election, you can only add the cancellation as part of ancillary reason why the election should be annulled. The reason why we ask INEC to do it properly is very simple. There have been a lot of agitations concerning free and fair elections. From what I monitored after the cancelled election, the international community is itching to make a laughing stock of our situation because it clearly portrayed Jega led-INEC as incompetent. And that incompetence is laid squarely at the feet of the ruling party. It was President Jonathan who nominated Jega to Senate for approval. So he has the responsibility to ensure that the person he brought to us is competent and have sufficient experience to organize this election. As far as I am concerned, this re-scheduled election in some states is an admission that the election has failed. What we are trying to avoid in the first place is what is going to happen now. If in April 9, the House of Representatives election was decided in favour of ACN for instance, you will expect that by the time the senatorial election is taking place there will be a pattern to ensure that what happened in the House of Representatives is replicated for the senatorial aspirants. So I am saying that the issue of bandwagon effect which we were trying to avoid is going to happen because if a particular party has been returned as winning in the House of Representatives in a particular state, and the senatorial election of that has been rescheduled or postponed, there is going to be tendency for voters sympathy for the party, which has already won the House of Representative. In other words, there is unfair advantage on the part of the loosing party. So it is more likely that the party winning the election that have been held will also take advantage of the election that has been postponed.Are you saying that re-scheduling of election will affect voting pattern Yes. The reasons why we wanted both the elections of the senate and that of the House of Representatives to hold the same day was to ensure that we avoided a situation whereby, if you had voted for president tomorrow and you go and vote national assembly election next Saturday, it is likely that once that we know the president of Nigeria, everybody will want to know that it has a National Assembly that can work with him. So I am saying that to hold staggered elections in some states and hold elections in other positions is totally unconstitutional. It is illegal. If you are going to postpone the senatorial election in Ekiti State, then postpone all national assembly election in Ekiti completely. Dont hold House of Representatives election in Ekiti and then postpone the senatorial election in Ekiti because it will be of no use. By the time you declare the result of the House of Representatives, the tendency will be for people who voted for a particular party to ensure that other people vote for the coming elections.You are saying that it is illegal. Is it illegal by virtue of the fact that it is not in the Electoral Act or on moral ground It is illegal by virtue of the unfair advantage that it has created. The Constitution says you must give parties equal opportunity. By the time party A wins all the House of Representatives election in a particular state and they decide to go and do senatorial elections next week in that particular state. It is likely that party B that lost will continue to loose because everybody will want to be on the winning side. And that is an unfair advantage because there is no level playing ground for all the parties. Section 36 of the Constitution says if you are going to determine the right of parties, you must give them fair hearing. They must be placed on the same level and there should be no discrimination in terms of whether there has been an unfair advantage. So I am maintaining the position that even though INEC has power to cancel, what it does in that cancellation is that he must enforce a uniform rule that will place parties on the same level. It is not just that state. The other position is this: I am holding National Assembly election in Lagos State and the party that has won is ACN and we postpone National Assembly election in Ekiti State for instance. And the party in power in that state is ACN. The party is likely to get voter sympathy and say ah! Lagos has already won in so and so state.Assuming that PDP won 80 per cent in the areas we had the National Assembly elections, the sympathy and the sentiment will go round the state and say allow president so, so and so to continue, we have already voted 80 per cent in other states. This state dont be in opposition, standing alone. That is what I am saying that it is not just in the states, but all over the federation that there will be the bandwagon effect. The other point that we must raise in the issue of cancellation of election is this: We wanted to ensure that all matter relating to elections are dealt with before swearing in. even as we are holding elections there are still pre-election cases of 2007 elections that are still in courts. The understanding we had was that we wanted to do away with that. It should have been possible to ensure that all cases are determined far ahead of the swearing date. There should be no state where a person is sworn in where there is still an election petition pending. If eventually the thing is nullified, there will be re-run, re-run and re-run as we have seen some governors have taken three re-runs. So postponing this elections is short-changing the time to ensuring that those petitions are heard because the date of April to May is so short that you can hardly have any election petition that can be fairly determined before the May swearing in takes place. So the elongation of the election will further jeopardize the chances of further cleaning the backlog of complaints that arise from the election and then, the way it is being staggered now, I tell you, INEC does not possess sufficient logistics and manpower to handle the backlog of complaints and logistics that are required to handle National Assembly election, together with governorship. There will be a lot of manipulation.Why do you say so They have been given enough money to do that.If I tell somebody to run from Lekki Phase one to Obalende and he stops at Law School, he comes back to say I should allow him to run to Ikeja, I dont need to be a soothsayer to know that he is going to collapse. If you have somebody to organise a National Assembly elections for only two positions, the Senate and the House of Representatives, and he is unable to do it, he is now asking you to give him the opportunity to merge with governor and state Houses of Assembly, I dont need to be a soothsayer to know that INEC wont be able to do that. I know clearly that we are preparing for a precipice on April 26 when INEC is hoping to conduct all elections on a single day. That date was already scheduled for the governorship and state Houses of Assembly elections. So to be shifting other elections that day is going to lead into confusion and chaos. Jega thought it is easy. National Assembly election is less tension generating. As a matter of fact, most electorates dont even know many of those national assembly candidates. But the governorship apart from the presidential elections, is like a high-powered, tension-soaked elections because people know the governors and there is a lot of campaign propaganda. So it is going to be a lot of tensions. The governorship elections should not have been combined with any other election because it is likely to generate greater voter turn-out. And in any case, the same bandwagon effect in what we are going to see. A governor will say if you are going to vote for me, vote along with my own preferred candidate for the senate. It will be reasonable to expect that. So I say that this postponement is ill-timed and rescheduling it again has created more problems than INEC can handle.Now what happens if some of those 2007 pre-election disputes are not resolved before the next elections are concludedWe are praying. I understand that the court of Appeal has reserved judgment in the cases of the five governors who are seeking to elongate their tenure by reason of taken fresh oath of office. The court of Appeal should give a verdict once and for all that will be in line with the expectation of the people of Nigeria. Our intention of creating a four-year term of office for governors was that no governor will be able to stay beyond 8 years. You are asking how feasible will be to conclude on the petition Surely, we are not going to conclude on the disputes before swearing in on May 29.What I am saying is if there is a matter at the courts arising from the 2007 elections and this present election subsumes whatever that is happening in court. Are they going to stop proceedings or continueNot at all. That is in fact the problem that INEC is facing because take for instance I am challenging the election of candidate A for Lagos Senatorial district we are in court and I am saying that I am the one that should be the right candidate.And a fresh election has been held in respect of the same senatorial district and candidate B has now emerged as the new senatorial candidate whereas I am the candidate that is entitled to have been in that office. I am entitled to say I have not even enjoyed the benefit of that office, INEC, you should have waited. That was what happened in governor Peter Obis case. When they were still in court, the Supreme Court says, INEC should not have organised an election in Anambra State knowing that there were still case in court trying to determine the tenure of Obi. That is why they asked governor Andy Uba to vacate the office. If eventually any candidate wins any election case that is still pending now, he is entitled to ask that he should be allowed to take benefit of that judgment because it will be of no use if another person has been sworn in already to take over the office. So I still believe that the decision of the Appeal Court in respect of these five governors will save us a lot. And my position is that there should be no situation that should allow a governor to spend beyond four years in office. If you take oath five or ten times, that is your business. Otherwise, we are going to get to a situation where some governors will take advantage of that. As we see now some governors have already registered puppet political parties which they put in their pocket. And are only waiting to use them to create crisis. Except now, I never knew that there was a party called PPN before. I have not heard of that before and there are so many PPNs that are in the pipeline, in the pocket of the various politicians. Nobody ever knew that there was ACPN in Kwara State until Oloye came up with that. So I am saying that there are so many political parties that have been registered by politicians to be used as canon-folders to create and ferment troubles. If a governor has been able to win an election and he is afraid that may be he is implementing unpopular policies he can instigate the so-called PPN or ACPN to come and file a petition, have his election nullified, do a re-run and continue to remain in office. So I foresee a situation whereby these cancellations and postponements would open up the door for floodgate of litigations that would further compound and complicate the political terrain.On the tenure elongation suit do you think we can dispense with it before governorship elections, since the loosing party may appeal to Supreme CourtI believe that with the speed and acceleration that the appeal court has granted the matter, we may get it. This appeal now has been heard in less than one month. Records have been compiled, and judgment reserved. It is the same the same record that the court of appeal used that the Supreme Court will use. So I will only urge the supreme court to give the same acceleration once the appeal court delivers its judgment, parties should co-operate, while supreme court should constitute a special panel that can hear that appeal in one week and its verdict.In all these would we absorb the politicians themselvesWhat I will say is that politicians especially the National Assembly should allow us to create a regime of jurisprudence and legal precedents that will help us know that this is the pattern concerning elections. Before today right from 1983 when we used to hold election, the pattern has been established up to the Supreme Court that political parties have the supremacy of determining who their candidates will be for primaries or elections. Before then, the court had always tried to decline interference in the internal affairs of parties. But you will find out that the electoral act has been amended up to ten times. Once politicians see that a decision of the court has come out, they will try to amend the electoral Act to circumvent that decision. What we have currently is that there is no particular precedent that we can follow to determine a particular election case. Before the Supreme Court would come out with Chibuike Amaechis case, the electoral act has been amended. Before the Supreme Court comes out with a decision on a particular senatorial case, the electoral act has been amended. And the amendment has a way of nullifying or over-reaching those decisions such that there is no precedent to follow. Lawyers have its seat down again to formulate ingenious arguments that will bring up new precedents because the amendment keep throwing up challenges everyday, so I am appealing to politicians that we should not allow our self-interest to becloud our sense of national loyalty. Britain has no constitution. But by now, they have already created a precedent concerning electoral matters. Once you dont enjoy the confidence of your fellow members in the House of Lords, you have to resign as the leader of the leader of the party. There is no need for any convention. It is a precedent. So I am appealing to members of the National Assembly to allow the courts to create and formulate a policy such that if you are worker upon the middle of the night, and the matter is a pre-election matter or whatever, there is precedent. The consequence of this is that conflicting decisions are always coming up. While the court of Appeal division in Uyo and Lagos are coming out with new decisions. And they are always in conflict. That is the why you see too many litigations because the candidates are not sure what the positions are. So they will say let me go and try. But once they know that this is the policy, then there will be no point going to try. You as a lawyer will advise your client that this matter wont go.
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