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.”
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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