“Supplementary Election” Interpretation Of section 178 (2) Is Defective

The decision of the Nigeria’s Independent National Electoral Commission (INEC) to hold what it christened “Supplementary Election” in Imo State, South-East Nigeria, is not only alien to the 1999 constitution as amended, but also contrary to the conventions we have upheld for years. Such decisions have potential of creating constitutional problems, which the drafters may not have intended.

To fully understand where INEC derived its powers to conduct elections into Governorship positions, we will examine the content of the 1999 constitution as amended. We must bear in mind that our constitution was written by men and women who in their wisdom and conscience, took care to bequeath us with a document that has a body and a soul. The constitution may not be translated word for word in some circumstance to mean what the wordings are, but could be interpreted in an overall context of the spirit behind the section.

Section 178, sub-section (1) conferred on INEC the power to conduct Governorship election as it declares:  “An election to the office of Governor of a State shall be held on a date to be appointed by the Independent National Electoral Commission.” I believe no one is in doubt that INEC conducted Governorship election for Imo State on the 26th of April, 2011.

With that established, let us look at the sub-section (2) of the section 178. The referenced section states:  “An 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.”

The constitution used the word “HELD” to describe the event for the election; this in my view is the premises INEC may want to argue the case for bypassing the 60days and 30days limitation clause imposed by the constitution. However INEC and legally minded persons would agree that the drafters of the constitution are not magicians, and they would have meant that election for the Governorship would be conducted within 60days before the tenure of the incumbent expires. Such would give the incoming administration the necessary time to prepare for the task ahead.

Granted that we have to consider unforeseen circumstances that may allow for extra time for any election to be concluded, but that is what the drafters envisaged when they generously allowed the 60days mark in the first place.

My legal mentor Olisa Agbakoba (SAN) as reported said,  INEC is within rights to hold make-up election as reported in Imo State even after the 30days threshold as stipulated in the constitution, because the section 178, sub-section(2) of constitution used the world “HELD” instead of “CONCLUDED” to demonstrate when the events for the election will be satisfied.

Permit me to disagree with this line of reasoning, given that the law does not seek to create problems, but solutions. If we allow the current manipulations of the constitution to stand, we would be empowering INEC to act unconscionably in future. 

The question I would like to ask my mentor (Olisa Agbakoba, SAN) is this. Since our constitution did not use the word CONCLUDE, would it be suffice to say that INEC can conduct and conclude an election even on the eve of the hand over date.. for example on the 28th of May 2011? This in my view is recklessly standing wisdom on the head. 
Furthermore, section 179, sub-section (4) of the 1999 constitution as amended also state:

“In default of a candidate duly elected under subsection (2) of this section, the Independent National Electoral Commission shall within seven days of the result of the election held under that subsection, arrange for an election between the two candidates and a candidate at such election shall be deemed to have been duly elected to the office of Governor of a State if - (a) he has a majority of the votes cast at the election; and (b) he has not less than one-quarter of the votes cast at the election in each of at least two-thirds of all the local government areas in the State.

Let us agree that INEC was right to have invented the supplementary election into the constitution, but in view of sub-section (4) of section 179, INEC has failed the SEVEN DAYS provision test. As we know the Imo State Governorship election was conducted on the 26th of April, 2011, the results were declared inconclusive on Thursday the 28th April, 2011. INEC proposed that a supplementary election will be held on the 06th May, 2011. EIGHT DAYS after the result. Who gave INEC the one day grace? Is INEC acting ultra vires?

We can clearly see how INEC is seemingly assuming a new power outside its mandate. The implication of these conducts would mean that, whoever emerged on the 06th May, 2011 as the winner may not celebrate victory yet, because the Supreme Court is likely to quash that election so as to prevent constitutional abuse. 

I can envision a time not far when INEC will be hiding under a faulty presumption someday to conduct election a day before hand over, using Imo State as precedent. This must not be allowed to stand.
Having said this, I believe the onus is now on the incoming parliament to go through the 1999 constitution line by line and word for word in order to remove all these encumbrances.