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.”
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.”