During his confirmation as the Chairperson of the Independent National Electoral Commission (INEC) in July 2010 and on numerous occasions thereafter, Professor Attahiru Jega promised that his Electoral Commission would at all times act lawfully.
In ordering “supplementary elections” to take place on 6 May in four out of 27 local government areas (LGAs) following what it described as “inconclusive elections” for the office of governor in Imo State on 26 April, Professor Jega’s INEC will be manifestly acting contrary to law and without lawful authority or justification. It has a duty to tell Nigerians and the world why it must do so.
For the most part, the conduct of elections is governed by the Electoral Act. The broad groundwork for the Electoral Act is, however, laid down by Nigeria’s 1999 Constitution, Section 178(2) of which clearly provides that “[a]n election to the office of Governor of a State shall be held on a date not earlier than sixty days and not later than thirty days before the expiration of the term of office of the last holder of that office.”
This text allows little room for error. Ikedi Ohakim, the current Governor of Imo State, took the oath to begin his four-year term of office on 29 May 2007. His current tenure will expire on the mid-night preceding 29 May 2011. All voting to determine whether he continues in office or is succeeded by someone else ought, in compliance with the Constitution, to have been concluded not later than 29 April 2011.
INEC’s proposal for “Supplementary” voting in Mbaitoli, Ngor-Okpala, and Ohaji-Egbema LGAs of Imo State, in particular, one week later than is constitutionally permissible charts a new path in unlawful quagmire. The other affected location is Orji, in Owerri North LGA. In announcing this, INEC failed to disclose any compelling factual narrative or legal justification or, indeed, what other options it considered.
The facts are that on 26 April governorship elections took place in Imo State as in 23 other States of Nigeria. Despite the best efforts of a largely peaceful population, Imo State reported arguably the worst cases of Election Day malpractice and violence, with quite serious allegations against disclosed senior public or party officials assisted by law enforcement agents.
At the end of voting on 26 April, the sitting Governor of Imo State, himself a candidate in the elections, inexplicably proclaimed a 12-hour movement restriction to take effect between 18:00 hours on 26 April until 06:00 hours on 27 April, coinciding with the most important hours of counting, collation and transportation of results. Early the following morning, the Governor extended this movement restriction by four hours until 10:00 hours on 27 April. In several places, many party agents, observers and journalists complained about being unable to get to collation as a result.
With respect to the named LGAs, in Ngor-Okpala, no voting took place because the people refused to allow INEC officials distribute voting materials or proceed with organizing voting without result sheets. In Ohaji-Egbema, armed operatives led by a known senior State and party official allegedly spirited away significant quantities of voting materials, diverting them into private residences for purposes, presumably, of ballot stuffing.
In Mbaitoli, voting took place and the local collation officer together with party agents certified the results for the LGA, only to try to disown them on national television at the point of collation in Owerri, the State capital. Confronted, however, by party agents with results certified by this officer, he confirmed that he indeed had certified them. He was thereafter handed over to the police but he remains a free man. In Orji, election materials allegedly disappeared, diverted to the home of a known senior party official and contractor against whom similarly serious allegations of diversion of materials for voter registration were made in January 2011.
INEC had deputed a team of National Commissioners and staff to oversee the governorship elections in the five States of South-Eastern Nigeria, led by Professor Lai Olurode. Professor Olurode was to lead emergency operations in Imo State as the officials of INEC came up against the determined efforts of incumbency to unlawfully frustrate the clear will of the people.
Any claim that there was no election in Mbaitoli in factually unsustainable. In the other locations, INEC has not yet explained why it wishes to supersede what happened on 26 April. If INEC says no voting happened in these locations, is it not under a duty to disclose what happened, who was responsible and what it has done to hold them accountable?
INEC is obliged to investigate all reported incidents and allegations of electoral malpractice in the Imo Governorship elections, including the egregiously whimsical movement restriction timed to coincide with the most important hours of results collation. If it has done so, INEC has not yet issued a report on its investigations nor given any reasons why such report should not be public.
The known persons against whom these serious allegations were made are still free. The management of the Police and security agencies in the State who appear to have condoned these is still there. With this background, it is impossible to take INEC seriously when it invites the people of the State to “ensure the highest level of integrity and good conduct” in the proposed “supplementary” vote.
For those who fret about getting to 29 May without a duly declared Governor for the State, there are constitutional provisions which govern that eventuality should it occur. Quite clearly, “Supplementary” vote is not a category or event recognized by the laws or constitution of Nigeria. INEC has not bothered to secure judicial exemption in support of this invention. For now, INEC has a burden to justify why it has chosen an option that is not supported by laws, facts or the Constitution. It has signally failed to do so.
Odinkalu, a lawyer, works with the Open Society Justice Initiative