Election postponement: INEC’s action ultra vires, lawyers say

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Lawyers, yesterday, weighed in on the shock postponement of the presidential and National Assembly elections by the Independent National Electoral Commission (INEC), and concluded that the electoral umpire acted beyond its powers.

According to them, while the Electoral Act allows INEC to postpone elections for certain emergencies, doing so few hours to voting time, and for reasons not contemplated by law has grieved citizens that were upbeat to perform their civic duties.

They also raised questions about the legality of the action, especially since Section 26 subsection 1 of the Electoral Act, 2010 as amended, says elections may be postponed if there is likelihood of breach of peace, natural disasters or other emergencies.

Interrogating the legality of the shift, an Abuja based lawyer, Chief Ferdinand Orbih (SAN) said that reasons for the postponement do not fall within the contemplation of section 26 of the Electoral Act.

“Clearly, the present postponement is not covered by Section 26(1) of the Electoral Act. INEC didn’t give insecurity or natural disaster as reasons for postponing the elections. The only other reason envisaged by the Electoral Act for postponing elections is “similar emergency situations” to natural disasters.

“The reason given by INEC for the postponement of the 2019 general elections borders on logistical difficulties. That reason cannot be elevated to the status of an emergency contemplated under Section 26(1) of the Electoral Act. That reason can only qualify as a self-contrived emergency.

“Logistical difficulties at the eleventh hour is nothing, but gross incompetence. It is totally irresponsible of INEC that had four years to prepare for these general elections, to come up with this type of satanic magic. It’s a cruel joke on Nigerians,” he declared.

Orbih said the critical question for INEC borders on what happens to both the sensitive and insensitive materials already distributed for the elections.

His words: “Can INEC vouch for the sanctity of those materials after exposure for one week to stakeholders in the election? If they were not yet deployed less than 24 hours to the election, does that not point to the fact that INEC knew ab initio that it would postpone the elections?

“There is definitely more to this than meets the eye. INEC must bear in mind that since 2014, no election has been as critical to the survival of our country Nigeria as the 2019 general elections. The highest degree of transparency and fairness must be brought to bear on the conduct of the election by INEC. As the saying goes- a word is enough for the wise. But is INEC wise? Only time will tell.”

Similarly, a constitutional lawyer and author, Sebastine Hon (SAN) said even though section 26(1) of the Electoral Act, 2010 as amended permit INEC to postpone elections, this present postponement is a gross abuse of statutory powers.

In Hon’s estimation, no tenable reason was advanced for it and none really exists.

“The timing of the shift shows without doubt that some underhand influences have been brought to bear on a body designated ‘independent’ by the Constitution itself,” he stated.

He therefore, called on the international community to weigh in and call the Nigerian government and INEC to order. Democracy, he said, is presently under threat in Nigeria, especially as it has to do with the already distributed election materials.

Warri, Delta State-based Chief Albert Akpomudje (SAN), expressed sadness and confusion with the postponement, adding that the timing just few hours to the voting was worrisome, just as he queried INEC’s preparedness to conduct free, fair and credible polls.

Another lawyer, Muhammad Sani Umar said INEC has no basis for postponing the election.
Citing section 26 of the Electoral Act, he reiterated that elections may be postponed when there is serious breach of the peace, natural disasters and other emergencies.

Umar said: “Other emergencies by virtue of the ejusdem generis rule (of the same kind or nature) implies emergencies that have the semblance of natural disaster or breach of the peace.

“The Act does not contemplate logistics inadequacy as a ground for postponement because it is taken for granted that once a date is fixed, INEC will prepare all logistics before that date.”

Corroborating Umar, Abuja based lawyer, Abubakar Sani believes that the provision specifically recognises only “serious breach of the peace, natural disasters or other emergencies” as grounds for postponing elections.

His words: “The reason given by INEC for the postponement is ‘logistical challenges.’ Can that circumstance be reasonably interpreted as being ejusdem generis with “serious breach of the peace,” or “natural disasters” within the contemplation of the section?

“Even though this is doubtful, however, the doctrine of necessity can justifiably be invoked to save the situation, given that without surmounting the logistical challenges, the elections themselves would obviously be in jeopardy ab initio, as no election can realistically be conducted without the requisite materials.

“To that extent, ‘logistical challenges’ can reasonably be interpreted as being ejusdem generis with “other emergencies”.

The former General Secretary of the Nigerian Bar Association (NBA), Mazi Afam Osigwe who lamented that if INEC knew it wanted to postpone the election on logistics ground, it should have done so three days earlier without waiting until few hours to the exercise, however, thinks differently.

Said he: “I think that Section 26 covers emergency because emergency would qualify in where INEC is unable to get election materials where they should be. I think it is better they postpone the election to get the materials everywhere so the election holds the same day in all states.

This, he noted was to avoid the fears that a staggered election would work to the advantage of any party.

Human rights lawyer, Ebun-olu Adegboruwa, who called on the National Assembly to audit and probe INEC through a commission of inquiry also said it (INEC) should not have waited till the dying minutes before announcing the postponement, since it was well aware of all its handicaps.

The responsibility for the postponement of this election, he said goes to the government and INEC.

“The postponement has unwittingly eroded the credibility of the elections and the capacity of INEC, in spite of the huge resources committed to it and the length of time available for planning and logistics.

“It is against all the above and many more reasons that I find the postponement of the elections unacceptable,” he declared, and appealed to Nigerians to be patient and give room for a proper election at the rescheduled date.

Former General Secretary of Labour Party and Abuja-based lawyer, Dr. Kayode Ajulo said the reasons presented as alibi for the “ill-timed postponement of the Presidential and National Assembly election being for ‘logistics’ reasons flies in the face of logic and portrays Nigeria as being unserious.”

According to him, citizens who have put in risks of various proportions to get to different locations for voting deserve apologies.

“It appears on the surface that the Electoral Act envisaged postponements of slated elections for certain emergencies alone, however, the spirit of that enactment, which is to address emergency, was grieved and afflicted by INEC when the postponement was not done timeously, especially, in the light of the apparent logistic contingencies,” said Bankole Kayode, a Lagos based lawyer.

According to him, all the “emergencies” had manifested three days before the eleventh hour cancellation, but INEC chose to shock Nigerians.

“Imagine the quantum of loss suffered by Nigerians socially, emotionally and pecuniarily as a result of the cancellation. Professor Yakubu and his INEC team have not done well as the faux paus has done incalculable damage to the integrity of the whole process,” he stated.

Also responding, Inibehe Effiong, a Lagos based lawyer lamented that there is no justification for the postponement given that INEC had four years to prepare for the 2019 elections.

He stated that INEC failed to specify the “logistical and operational plan” challenges that warranted the postponement, adding that the commission also failed to apologise for the disappointment.

“The INEC statement also failed to offer any form of accountability in terms of punishment for the officials of the commission whose willful or negligent conduct orchestrated the postponement.

As a Nigerian who had to travel all the way from Lagos State to Akwa Ibom State just to be able to discharge my civic responsibility by casting my vote, this postponement is painful,” Effiong said, urging Prof. Yakubu to resign on account of incompetence.

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