Okoye: Postponement of Anambra Election Not an Option

CICERO/Interview

As the November 6 governorship election in Anambra State approaches, the level of insecurity in the state has escalated, raising concern over the conduct of the election. In this interview, the National Commissioner for Publicity and Chairman, Voters’ Education, Independent National Electoral Commission, Mr. Festus Okoye, tells Chuks Okocha that the increasing rate of violence will not force the commission to postpone the election. Excerpts:

With the increasing violence in Anambra State ahead of the November 6 election, is postponement an option?

The Independent National Electoral Commission (INEC) is not considering or contemplating rescheduling, postponing and or suspending the Anambra State governorship election scheduled to hold on November 6, 2021. For the commission, and indeed the people of Anambra State, rescheduling, adjusting or postponement are not options worth considering, given the challenges of planning and delivering elections within constitutionally and legally approved timetable and schedule.

The framers of the Electoral Act, 2010 (as amended) embedded in Section 26 of the law the possibility of rescheduling a governorship election under extraordinary circumstances on showing cogent and verifiable reasons. These cogent and verifiable reasons must be such as can be managed within the limited window allowed by the Constitution.

The framers of the Constitution and the law did not envisage or contemplate panic rescheduling or postponement on the basis of indeterminate action and activities of non-state actors.

Contemplating rescheduling or postponing a governorship election as a panic measure or first step in addressing a developmental, constitutional, legal or security challenge is constitutionally dangerous, legally slippery and politically laced with landmines.

It is like a Pandora box with indeterminate outcome. It is akin to voluntarily drinking the hemlock and for the electoral management body, it will lead to electoral paralysis having invested heavily in the procurement of non-sensitive and sensitive materials and the recruitment and training of election duty officials.

Let’s be specific. Will INEC call for rescheduling of the election?

Therefore, it will amount to threading on a slippery slope to canvass rescheduling or postponement as a first option giving the peculiar circumstances of our nation and the near similar security challenge in the South East of Nigeria and indeed in most parts of the country.

By Section 180(2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the Governor shall vacate his office at the expiration of a period of four years commencing from the date when in the case of a person first elected as governor he took the Oath of Allegiance and Oath of Office, and the person last elected to that office took the Oath of Allegiance and Oath of Office or would, but for his death, have taken such oath.

What are the constitutional issues involved in this case?

By constitutional provision and stipulation, the tenure of the incumbent Governor of Anambra State will expire on March 17, 2022 and on that day, the governor and the Deputy Governor must leave office whether someone has been elected to take over from them or not. It is immaterial whether the office is vacant. They do not need a letter of termination or disengagement from duty. The engagement of the governor and his deputy are governed by the Constitution and the law and they understand it and all the critical stakeholders understand this.

Pursuant to Section 178(1) & (2) of the Constitution and Section 25(7) & (8) of the Electoral Act, 2010(as amended), election to the office a State Governor shall hold not earlier than 150 days and not later than 30 days before the expiration of the term of office of the last holder of the office.

Hence, by virtue of Section 178(1)&(2) of the Constitution and section 25(7)&(8) of the Electoral Act, 2010(as amended) the earliest date for the election into the office of Governor, Anambra State, shall be the 18th October 18, 2021 and the latest date for the election shall be February 15, 2022.

What are the constitutional issues involved here?

The implication is that the Constitution and the law have confined and circumscribed the period for the conduct of the election to the period running from 18th October 2021 and February 15, 2022 and no more.

It is true that Section 26 (2) of the Electoral Act 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 election 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.

The caveat here is that the Electoral Act is inferior to the Constitution and gives the commission the power to postpone or reschedule within the constitutional parameter allowed by section 178(2) of the Constitution.

It is axiomatic to restate that the Constitution is the fundamental law of the land while the Electoral Act is made by the National Assembly pursuant to the powers granted by the Constitution and in the hierarchy of laws, the Constitution is supreme. Therefore, if there are cogent and verifiable reasons to reschedule or postpone the election, the Commission can only reschedule or postpone between October 18, 2021 and February 15, 2022 and no more.

The law is settled that the time fixed by the Constitution, which is the fundamental law or supreme law of the land, cannot be altered, extended, expanded, and elongated, by the electoral management body or indeed by the courts of law unless the same law made provision for extension of time. In other words, the period fixed for the conduct of the election by Section 178(2) of the Constitution does not admit of discretion as they are mandatory and not permissible.

Therefore, any action or extension or purported election taken or fixed or conducted by the Commission after February 15, 2022 is a nullity as the Commission does not have discretion in relation to the matter.

Under the circumstances, therefore how far has INEC gone with preparations for the elections?

There are 14 items in the Timetable and Schedule of Activities released by the INEC on the January 19, 2021. The Commission has implemented 10 of the activities leaving the statutory publication of the Notice of Poll, which will be done on the October 21, 2021; the last day for the submission of the names of Polling Agents for the election to the Electoral Officers of the 21 Local Government Areas by Political Parties which will elapse on October 21, 2021; the Last day for Campaigns by Political Parties which will elapse on the November 4, 2021 and the date of election fixed for November 6, 2021.

For the records, what does the constitution says for a candidate to elected?

It is also important to underscore the fact that by Section 179(2) of the Constitution, a candidate for an election to the office of governor of a State shall be deemed to have been duly elected where, there being two or more candidates, he has the highest number of votes cast at the election; and he has not less than one-quarter of all the votes cast in each of at least two-thirds of all the local government areas in the state.

In default of a candidate duly elected under section 172(2) of the Constitution there shall be a second election within 21 days of the result of the election. The implication is that the time available to the Commission to maneuver in the event of an event of a magnitude that threatens the conduct of the election narrows down to January 26, 2022 and this will lead to panic measures and drive and detrimental to the electoral process.

Fundamentally, there are no indications that the non-state actors behind the wave of insecurity in the South East of Nigeria and other parts of the country will retreat if the governorship election in Anambra State is postponed. Rather, there is a high possibility that the non-state actors will become more emboldened at their success and make additional demands on the state and the Commission and this may lead to the country falling off the constitutionally approved period for the conduct of election.

What are the options before INEC?

The question then revolves around the options open to the electoral management body if the country falls off the constitutional radar. The options are rather narrow, problematic and challenging. Section 180(3) is strictly not available in the circumstances of the situation in Anambra State. The section 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 from time to time, but no such extension shall exceed a period of six months at any one time. Is the Federation at war? Is the territory of Nigeria physically involved? The circumstances in Anambra cannot, by any stretch of imagination, be said to constitute a war situation as contemplated by Section 180(3) of the 1999 Constitution.

The second option revolves around the operational viability of Section 191 of the Constitution, which provides that if the office of the Governor and Deputy becomes vacant by reason of death, resignation, impeachment, permanent incapacity or removal from office, the Speaker of the House of Assembly of a State shall hold the office of Governor of the State for a period of not more than three months, during which there shall be an election of a new Governor of the State who shall hold office for the unexpired term of office of the last holder of the office. The gravamen of section 191 of the Constitution is that the four-year period is sacrosanct and the Speaker can only complete the expired residue of the period of four years and no more.

The third option, which is completely outside the contemplation and control of the electoral management body is the option of a state of emergency in Section 305 of the Constitution. The duty and mandate of the Commission is to organise, undertake and supervise elections. The contemplation and declaration of a state of emergency in any state of the federation is within the powers of the Governor of the State, the State Assembly, the President and the National Assembly.

It is important, it is imperative, it is patriotic and in the enlightened self-interest of the country for the electoral management body to proceed with the preparations and conduct of the November 6, 2021 Anambra Governorship election. The preparations and conduct of any election is not a tea party. It involves strategic thinking, planning and organisation. It involves risks and security challenges. It involves courage, patriotism and statesmanship. In other words, it is a multi-stakeholder venture and all the critical stakeholders must bond together, act together and reason together to deliver on a good election.