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Femi Falana
(Image source: Channels Television)
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Should the governorship
elections in Bayelsa and Kogi take place as scheduled, they could be declared
illegal by the court, a senior lawyer has said. Femi Falana, a Senior
Advocate of Nigeria, explained that the Independent National Electoral
Commission as presently constituted lacks the power to fix dates for election
and conduct them.
In
a statement on Sunday, Mr. Falana said that the electoral commission is
currently constituted by two national commissioners and therefore cannot take
any valid decision.
“In
other words, as the INEC is not validly constituted as required by section 159
of the Constitution of the Federal Republic of Nigeria, 1999, as amended, its
decisions are liable to be set aside,” Mr. Falana said, a Senior Advocate of
Nigeria.
“Even
when the INEC was constituted by a chairman and three other national
commissioners in 2010, the Federal High Court held that the electoral body was
not competent to take any decision.”
PREMIUM
TIMES report continues:
The
INEC had fixed the dates for the Kogi and Bayelsa gubernatorial elections for
November 21 and December 5 respectively.
While
the incumbent Bayelsa governor, Seriake Dickson, emerged the sole governorship
candidate for the Peoples’ Democratic Party; Timipre Sylva, a former governor
of the state, has emerged the candidate of the All Progressives Congress, APC,
in a race expected to be keenly contested.
In
Kogi State, it would also be a two-horse race between the APC and the PDP.
Incumbent governor, Idris Wada, is aiming for a second term under the PDP,
while Abubakar Audu, who was governor between 1999 and 2003, won the APC
primaries to contest the gubernatorial election.
In
addition to the governorship elections, the recent annulment of legislative
elections by the Election Petition Tribunals across the country means that
fresh elections would be conducted in the affected constituencies within 90
days of the dates of the verdicts.
But
Mr. Falana said that the outcome of the polls would amount to an exercise in
futility due to illegal composition of the INEC.
”That
was the case of Action Congress of Nigeria v. Independent National Electoral
Commission & ors. (Unreported Suit No: FHC/CS/36/09) where the Court
declared the composition of the INEC illegal and unconstitutional on the ground
that the four national commissioners who were in office at the material time
could not take any valid decision as the quorum of the INEC should not be less
than five national commissioners at any point in time,” said Mr. Falana.
“In
concluding the judgment the trial judge, the Honourable Justice Liman had this
to say:
‘Before
I end this judgment, let me remark on a very sad note. The Independent National
Electoral Commission constitutes the most important indispensable bedrock on
which our democratic institutions are built. Its function is central to the
smooth and enduring evolution of our political structures. It is not an
understatement to say that without a functioning INEC, no election into any
political office will be possible.
‘Then
how comes that in the 11th year of the country’s journey into constitutional
governance we do not have an electoral body with its full complement of
members. We continued to pretend that all was well with our electoral system
while the membership continued to drop from 13 down to 4 and it seems, we
remain complacent as if all is well. I think something is wrong somewhere and
the earlier both the executive and legislative departments of the government
acted to reverse this shameful trend the better for the people of this
country.”
Mr.
Falana said that as the counsel to the Action Congress of Nigeria in that
matter, he could say, without any fear of contradiction, that the federal
government did not challenge the court’s decision at the court of appeal.
“In
fact, instead of rushing to the Court of Appeal in the circumstance, the
Federal Government filled the vacancies in the INEC by appointing 11 national
commissioners,” he said.
“The five-year term of
office of the national commissioners of INEC has since expired by effluxion of
time. In the same vein, the term of office of over 20 Resident Electoral
Commissioners has since expired.”
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