On Saturday, 6th February,2014, the Independent Electoral Commission (INEC) eventually bowed to the pressure of “the Presidency” to postpone the February 14th and 28th 2014 General Elections for six weeks to enable the Federal Government of Nigeria concentrate on the war against terrorism in the North-East. The new dates for the election, announced by INEC, are 28th of March and 11th of April, 1014.

In announcing the postponement, INEC’s Chairman stated it had received two separate communications from Sambo Dasuki, the National Security Adviser and the “Joint Chiefs of Staff” unanimously declaring that the security of the elections could not be guaranteed should INEC proceed to hold the elections.   Regardless of the fact that INEC has been coerced into foisting a fait accompli on Nigeria, we must insist that the postponement is illegal and unconstitutional.

The postponement did not come as a surprise in view of the actions and utterances of the Presidency ( including Presidential aides, the NSA, and, lately, the Heads of the Armed Forces and Security Agencies, who are under the control and command of the President) and officials of the PDP, the party in control of the Presidency. By actions and words, the Presidency has sufficiently demonstrated to Nigerians that it does not want elections to be held, as scheduled.

Two pretexts were deployed to truncate the holding of the elections: the state of insecurity in the North East of the Country; and alleged lack of preparedness of INEC, exemplified by the unsatisfactory distribution of Permanent Voters Cards ( PVCs), such that a week to the election, over 10 million voters out of a voting population of 62 million registered voters were yet to obtain their PVCs.

The postponement of the elections, is, however not an isolated occurrence. It is said to be a part of   a more sinister design to accomplish tenure elongation. When the National Assembly exploded in November, 2014, in a sordid and appalling fence-scaling and barricade breaking melee, there were many people who felt that there was more to that partisan fracas than a planned forcible removal of the Speaker of the House of Representative from office.

The President had made an epistolary request to the National Assembly for the extension of the state of emergency that had been in operation in the three North-Eastern States of Nigeria: Borno, Yobe and Adamawa, since May 14, 2013, which required urgent consideration, lest it expire. The selective entry arrangement for pro-administration law makers was to have the state of emergency extended or renewed, for another six months, as allowed under Section 305 of the Constitution, an extension that would have lasted till May 2014.

It was also said that a resolution was planned to be passed under Section 135 (3) of the Constitution, extending the life of the current civilian administration, by six months, at the end of its tenure on May, 29, 2014, in the pretext that the Country was at war. If that resolution had been introduced and passed, Nigeria will not even be in the midst of an electioneering process by now, as INEC, at the end of last year, would have withdrawn or shelved her 2014 general election timetable.

Of course, a revengeful and retaliatory House of Representatives summarily denied the request, advising, instead, that the President, as Commander in Chief of the Armed Forces, should use his powers under Section 218 of the Constitution to continue to determine the operational deployment of troops, to the affected states, as appropriate.

Thus, the state of emergency, constitutionally, came to an end. In the Senate, the request was deadlocked in a face-saving filibustering, until it petered out inconclusively and conveniently altogether. Since the lower legislative chamber had effectively killed the request, granting it would have been embarrassingly ineffectual and to no avail.

If the botched tenure extension plan in the National Assembly is regarded as a rumour, what transpired at the Council of State’s meeting on Thursday 5th of February, 2015 was not. The meeting was convened by the President to discuss the feasibility of holding the general elections as scheduled. The Council of State ( CS) is established by Section 153 (1)(b) of the Constitution. Its composition and powers are as contained in Part I of the Third Schedule to the Constitution. .

In exercising his powers to appoint a person as Chairman or member of INEC, the President shall consult the CSe [(S.154 (3)]. The quorum of a meeting of the CS is one third of the total number of members attending such meeting; and a decision is taken by a majority of the members present and voting at a meeting ( See S. 159(1&2) of the Constitution). The CS comprises the President, Vice President, all former Presidents and Heads of Government of the Federation, all former Chief Justices of Nigeria, Senate President, Speaker House of Representatives, all the Governors of the States in the Federation and the Attorney-General of the Federation.( See Third Schedule, Part I, Section B, Para. 5 of the Constitution).

The CS has the power to (a) advise the President in the exercise of his powers with respect to the INEC ( including the appointment of its members); and (b) advise the President whenever requested to do so on the maintenance of public order within the Federation or any part thereof or any such matters as the President may direct..( See Third Schedule, Part I, Section B, Para. 6 (a) (iv) and (b) of the Constitution.

It is indubitably clear from the foregoing elucidation of the composition, power and procedure of the CS that it has no power under the Constitution to fix or postpone the date of the February 14 and 28 general elections on alleged grounds of unsatisfactory distribution of PVCs or on the ground of insecurity in any part of the Country. INEC is specifically vested with the power to fix or postpone dates of general elections. ( See section 132 ( 1) of the Constitution, which provides that ” an election to the office of the President shall be held on a date to be appointed by INEC.; and Section 178 (1) which provides that ” an election to the office of the Governor of a State shall be held on a date to be appointed by INEC.” Further see Sections 76(1) and 116 (1) of the Constitution) which provide, respectively, that INEC shall appoint the date of elections into the National Assembly and Houses of Assembly of the State.

In spite of the lack of powers to dabble into the issue of the dates of the election, the President made the CS to deliberate on the state of INEC’s preparedness for the elections, especially relating to PVCs distribution,   subjecting INEC to inquisition, and seeking to use security reports of the Nigerian military and security agencies to secure the shift in the dates of the polls. Mercifully, that ploy failed, as the CS, according to media reports, decided that INEC should consult and proceed to hold the elections if it was prepared to do so. That meant the subterfuge of state of insecurity in the North East and the alleged shoddiness of distribution of the PVCs were rejected as untenable grounds for postponing the elections.

Unrelentingly and remorselessly, as the CS was going on, the Presidency, through the Nigerian Military and the Security apparatus, was communicating, directly with INEC, stating that because of the new concerted anti-terrorist military operations of the ” joint, multinational force ” ( multinational, indeed with Chad, Niger, Cameroun and assorted mercenaries from South Africa, now coming to our rescue) in the North East on which attention is focused, the military and security agencies would not be available for the election, and thus cannot guarantee security of the election. The NSA and the Joint Chiefs requested for at least six weeks to be able to carry out their operation.

With this declaration, the Presidency told INEC, in plain language, that should it unwaveringly proceed with the holding of the election, it would not be provided any security cover. In the circumstances of our Country, where all the instrument of State coercion and security apparatus are concentrated in the hands of the Executive Branch of Government of the Federation, no INEC, no matter how principled it may be, would want to proceed with the election, having been issued with this red card. Effectively, the Executive Branch of Government has blackmailed Nigeria into submission. The electoral process has now been kidnapped and it is being held hostage by the Executive Branch of Government, including the military who have staged a coup against constitutionalism..

Let us recall that when NSA( and not United Kingdom’s National Security Adviser) formally gave the seal of government’s approval to the cacophony of calls for the postponement of the election, at Chartham House discourse in London, the reason he adduced for the desired shift in the date of election was not the state of insecurity in the North East, but the alleged shoddiness in distribution of PVCs.

He argued that presidential, governorship and national assembly and houses of assembly elections could be held on a date not earlier than 150 days and not later than 30 days before the expiration of the term of office of the last holder of that office{See Section 132(2.) of the Constitution}, implying that INEC could even conduct the elections as late as April 28, 2014, 30 days to May 29th end of tenure date. However, he deliberately refused to mention that before the First and Second Alterations of the Constitution in 2010, elections into theses offices were held on a date not earlier than 60 days and not later than 30 days before the expiration of the term of office of the last holder of that office.

Because of the anomaly of inordinate delay in the determination of election petitions, ( be it recalled here that a notorious one took up to three years after an election before final resolution, and during that period, the person declared by INEC to have won the election, and sworn into office, was discharging the functions of that office, while the person later adjudged by the election tribunal and appeal tribunal to have won that election was out in the cold), and owing to the preference to have election petitions decided before or immediately after the commencement of the term of office of the person declared the winner of the election, the Amendment or Alteration did two things.

First, the time to hold the election was shifted forward; from between 60 and 30 days to the end of the tenure of the last holder of that office, to between 150 days and 30 days to the end of the tenure of the last holder of that office. Second, the then unlimited time for determination of election petition and election appeals, was, respectively fixed at 180 days, from the date of filing of an election petition ( which must be filed within 21 days of declaration of result of the election); and 60 days from the date of determination of a petition by the election tribunal. See Section 258 of the Constitution, as amended.

Sadly, the intendment of the legislature in making these alterations is now being frustrated by an Executive Branch that appears desperate to create an electioneering crisis in order to stay in power.

We object to the postponement of the elections, not because INEC cannot postpone elections in any situation. It can. But this postponement is illegal and unconstitutional. INEC and Jega , who falsely claim that they are acting within the Electoral Act and the Constitution know this. Under Section 47 of the Electoral Act, 2010, as amended by the Electoral Amendment Act No. 10 of 2010, “voting in any particular election under the Act shall take place on the date and time appointed by the Commission throughout the Federation”.

Section 46(1)(a) of the Act provides that “The Commission shall, not later than 14 days before the day of election, caused to be published, in such manner as it may deem fit, a notice specifying the day and hour fixed for the poll”. However, Section 26(1) of the Electoral Act, as amended, provides that ” 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 and verifiable“.

Section 26 (3) states that ” where the Commission appoints a substituted date in accordance with subsections (1) and (2) of this Section, there shall be no return for the election until polling has taken place in the area or areas affected“; Section 26 (4) provides that ” notwithstanding the provision of subsection (3) of this section, the Commission may, if satisfied that the result of the election will not be affected by voting in the area or areas in respect of which substituted dates have been appointed, direct that a return of the election be made”; and Section 26(5) provides that ” the decision of the Commission under subsection (4) may be challenged by any of the contestants at a court or tribunal of competent jurisdiction and on such challenge, the decision shall be suspended until the matter is determined”.

It is our considered submission that Section 26 of the Electoral Act, 2010, as amended, only contemplates the postponement of a scheduled election in “ the area, or areas concerned or in the area or areas affected”. It is no authority for postponement of election on alleged ground of inadequate distribution of PVCs, or logistics constraint. It is not an enabling provision for the cancellation or postponement of an election on a national scale, in the entire country, unless the entire Country is engulfed in war, which will warrant the invocation of the provision of Section 135 (3) of the Constitution, which provides that ” if the Federation is at war in which the territory of Nigeria is physically involved and the President considers that it is not practicable to hold elections, the National Assembly may by resolution extend the period of four years mentioned in subsection (2) of this section from time to time; but no such extension shall exceed a period of six months at any one time”.

For the election to be postponed or cancelled under Section 135 ( 3), we submit that the Federation and its territory must be embroiled in a state of war, and the National Assembly, which can still sit, in spite of the war, passes a resolution extending the tenure of office of the President.

Section 26 of the Electoral Act, 2010, as amended, only vests INEC with a limited power to postpone election in an area where election cannot be held. Section 26 of the Electoral Act, as amended, is no enabler of postponement of elections all over the Country on alleged ground of insecurity in the North East of the Country.

In the prevailing situation, since it is not being argued, from the security perspective, that election cannot be held in the rest of the Country, INEC ought not to have been blackmailed, threatened or scared into abandoning the February 14th and 28th elections in the rest of the Country, comprising 33 states and the Federal Capital Territory. INEC can proceed with the elections, in these 33 States and in the FCT, while postponing elections in the affected states of Adamawa, Yobe and Borno.

After concluding elections in the rest of the Country, our security resources spread all over Nigeria, can then be redeployed and concentrated in the North East to guarantee a successful election. If, upon conducting election on the 14th of February, a clear winner of the Presidential Election emerges, however, regardless of the results that may emanate from the three affected states, INEC is empowered to announce the result, subject to the power of judicial review vested in the courts. That step will be in compliance with the provisions of the Electoral Act and the provisions of the Constitution.

Now that the holding of the 2014 elections as earlier scheduled , has been scuttled by the Presidency, Nigerians need to worry about where our Country is headed. Given the open-endedness of the military operation in the North East, will another security report not be procured in another six weeks to further truncate the elections, or are we to expect that other areas of the Country may erupt in simulated or contrived mayhem to create a pervasive atmosphere of anarchy in the Country in order to postpone the elections? Are we to assume that the Military High Command is acting in good faith or we should imagine that they are acting to frustrate the possibility of their early retirement, in the event of a change of government? Is it too difficult to realize that if the opposition takes over presidential power, all the service chiefs and the heads of the security agencies may be retired, as it has now become customary? May 29, 2014 is not far away.

Do we believe that their tying up the holding of election with the success that is recorded or failure that is suffered in the anti Boko Haram military operation in the North-East has nothing do with their vested interest and their lust to retain their position, post May, 29, since nobody knows the outcome of the election?

When Tunde Bakare, a lawyer turned pastor and seer, on January 4, 2015 called for the postponement of the election and the formation of an extra constitutional Transitional Government to be in power for two years and be headed by President Goodluck Jonathan, in order to prevent a national crisis, a contrivance, which he well knew was alien to the rule of law, was he regaling us with his usual inaccurate prophesies or revealing a closet discussion to which other Nigerians were not privy, which he was chosen to launder through his pulpit to determine its acceptability?

With the accusation of partisanship and insults being hurled at the INEC Chairman by the PDP and the Presidency, and the call for his resignation by the allies of the President, are the grounds being prepared to give Atahiru Jega the Hon Justice Isa Ayo Salami and Lamido Sanusi treatments, in the pretence that the provision of Section 157 of the Constitution on his removal from office is being followed or under the ruse that the Interpretation Act provides that he who appoints can suspend? Will the election be further postponed or shifted until the end of the tenure of Professor Attahiru Jega in June, 2015, to pave way for the emergence of a new, compliant, INEC Chairman?.

Of late, the “national conference alumni association” resurgently has been canvassing that the recommendations of the National Conference be first implemented before the holding of the election. Is this one of the spanner in the works of the election?

The central issue in the election that has now been scuttled and which may, again, be scuttled is not, about who is the better candidate between Jonathan and Buhari; or the best candidate amongst the seven presidential candidates. Nigeria does not belong to any of these candidates. It is not about power remaining in the creek or moving back to the savannah.

The cardinal issue in this election, we insist, is the right of Nigerians to periodically, freely and fairly elect a government ( president) of their choice. The right to a representative government is an internationally recognized right. The enjoyment of this right is being manipulated, and may be subverted, sadly, by the Executive Branch of Government of the Federation. This is unacceptable.

Mr. Ogunye, lawyer, legal commentator, author, and essayist, is the Legal adviser of Premium Times.