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On Nigerian Elections: Let The Constitution Speak By Leonard Karshima Shilgba

Friends, please, ignore all distractions and focus on the issues that underlie the 2015 elections. Who will you vote for and why? Are you better off today than you were four years ago? Vote according to your genuine answer. If your real income has been eroded by the rapidly devalued naira due to poor management of the economy during years of high oil prices, how should you vote? If the government is yet giving us excuses upon excuses while Nigeria is passing through a period of increasingly deteriorating electricity supply and in spite of the vaunted “privatization of the power sector”, how should you respond when alone in the voter cubicle, with only your ballot paper and a ready thumb?


The constitution of any country is meant to be read, understood and respected by all genuine citizens. Knowledge of your country’s constitution accomplishes three important things in you: First, you know your rights and are therefore courageous. Second, you know your obligations and accordingly confirm by deeds the duty of citizenship. Third, you become passionately defensive of the freedoms of citizenship guaranteed by the constitution. Oppression and abuse of power by a nation’s leaders often thrive unchecked when citizens are generally ignorant of the constitution, and only respond in fear to rumors about potential abuses of constitutional provisions concerning privileges and obligations (of which they are largely ignorant). 

There is a law that regulates how Nigerians live and relate with one another, especially in matters of authority sharing, social or political power distribution, and responsibilities to and of Nigerian citizens. That law is the constitution. The Nigerian president, for instance, cannot stay in office a day beyond his term of office, which usually expires every four years on the twenty-ninth day of the month of May, unless the social contract between him and citizens is renewed through the ballot, assuming such contract was not previously renewed once. Furthermore, the constitution gives a deadline when such renewal can be effected—at most thirty days before the first contract expires. In the case of the Nigerian president, that is April 29. However, if the Nigerian president is not keen on seeking renewal of the contract, after the twenty-ninth day of April, he can quietly prepare and handover to the citizens on May 29 their government, which they had entrusted to him four years ago. He has no grounds to seek any form of extension of the contract any other way. 

If the presidential election fails to hold by April 29, no election shall be conducted while the incumbent is in office; the Senate President shall then preside over the affairs of the nation and conduct election (since he remains in office until June). This is because, the situation would approximate to that described in section 146 (2):

Where any vacancy occurs in the circumstances mentioned in subsection (1) of this section during a period when the office of Vice-President is also vacant, the President of the Senate shall hold the office of President for a period of NOT MORE THAN THREE MONTHS, during which there shall be an election of a new President, who shall hold office for the UNEXPIRED TERM of office of the last holder of the office (Emphasis mine).

 Three questions arise from the above:

What are the circumstances described in section 146 (1)?

Can the inability to organize presidential election between April 29 and May 29, 2015 be included among circumstances captured in section 146 (1)?

How can the nation negotiate the “unexpired term”, which should be the term of office of a president who emerges through an election held under the President of the Senate if the election is held after May 29, 2015?

Before examining the above questions let me state that the timeline restrictions on holding elections should be understood as precautions to avoid manipulation of postponement engineered by a sitting president. In other words, unchecked and surreptitious manipulation of days set for elections will ultimately manipulate the incumbent out of office before they are held. It is in the interest of the president and the “presidency” to ensure that there is no more postponement of the polls. The contract Nigerians signed about four years ago with the president expires on May 29, 2015, and there is no renewal yet. The implication is very obvious. There will be no “constitutional crisis”; rather, there will be electoral prospect crisis for the incumbent president. There are always unspoken interpretations of the constitution in the event of unwarranted manipulations. If there would be any “crises” at all as a consequence, that should be on the villains that imagine they can “manipulate” the constitution.

  The circumstances described in section 146 (1) include death or resignation, impeachment, permanent incapacitation, and those described in sections 143 and 144. The inability of a president to avoid interfering with timelines set by the Independent National Electoral Commission (INEC) for holding elections until the deadline of April 29, when the nation is not engaged in war, and when the National Assembly has not so extended the term for this reason, should ultimately be viewed as gross misconduct. The president can then be impeached between April 29 and May 29. In a loose, but in deference to the famed “Doctrine of Necessity,” the vacancy after May 29 could be taken as a vacancy resulting from “permanent incapacitation.”

The “unexpired term” term for the new president elected post-May 29, shall by the same “Doctrine of Necessity” be set as four years from the date of swearing-in. This is trite since the “incapacitated” incumbent shall not be qualified to hold the office of President of the Republic, and were he qualified, the term would not be more than four years. Any president that is of a sound mind would never with eyes open railroad his nation into the constricted hallway, which is elections-blind, no matter the flattering goading.   “Interim National Government” in and for a democratic Nigeria exists only as a figment of imagination in those that cherish the thought as a soporific pastime. I am tempted to believe that President Jonathan is too educated and enlightened to allow himself to be boxed into a corner or edged out of the contest in ignominy by his contrivance.

May I quickly refer to section 26 (1) of the Electoral Act (2010):

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 elections as a result of natural disasters or other emergencies, the Commission [INEC] 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.

This section flies against the nation-wide postponement of the elections even as the security report presented at the National Council of State indicated that only 14 out of 774 local government areas in Nigeria were in the throes of insurgency, which was a convenient reason advanced for the postponement.  In 1999 presidential election did not hold in Bayelsa state because of the activities of militants, yet that alone did not vitiate the election then. And neither was there a charge of “disenfranchisement.” It must be said that to become Nigeria’s president, a candidate must in addition to winning the majority of votes cast he must win at least 25 per cent of votes cast in two-thirds of the states of the federation. We must be a nation that defers to her laws.

I hear about the rumor that the Chairman of INEC may be removed from office by the president. This will not happen. I say this not because of the denial offered by Mr. President at the February 11 Presidential Media chat. I base my confidence on the law, which is the only guarantee of civility. A newspaper reported that the INEC chairman would only continue in that office by the grace of Mr. President after March 24. This is utter nonsense! Let me explain, again on the point of clear law. Woe betides a congregation that says, “Well, we are only laymen. Let us follow whatever our pastors tell us as their interpretation of the Bible.” That would be a very foolish gathering indeed. Just as worshippers are expected to READ their books of faith, it is your citizen duty to brighten your mind on the illumination of the national scriptures—the constitution. A “bereanized” citizenry is an enlightened one. 

Section 153 of the constitution lists statutory bodies recognized by it, which includes in (f) the Independent National Electoral Commission (INEC). The process of appointment of the chairman and members of the commission is described in section 154 (3) thus:

In exercising his powers to appoint a person as Chairman or member of the Independent National Electoral Commission, National Judicial Commission, the Federal Judicial Service Commission or the National Population Commission, the President shall consult the Council of State.

“The president SHALL consult the Council of State,” is not an optional requirement. If President Jonathan wishes to appoint a new referee in the middle of the match to oversee the 2015 elections, he must consult the Council of State. I do not see the council approving the request. Beyond this little obstacle for President Jonathan (assuming he is considering removing Professor Jega from office before the expiration of his lawful term in June 2015), and most importantly, is this constitutional provision for removal from office of a member of any of the bodies listed in section 153 (but subject to section 157 (3) which applies only to members of the National Population Commission): 

Section 157 (1): Subject to the provision of subsection (3) of this section, a person holding any of the offices to which this section applies may ONLY be removed from that office by the president acting on an address supported by two-thirds majority of the Senate praying that he be so removed for inability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause) or for misconduct (Emphasis mine).

The President of Nigeria does not have the constitutional powers to unilaterally remove a member to whom section 157 applies, except members of the National Population Commission when the “President declares a National Census Report as unreliable, and the report is rejected in accordance to section 213.”

And any law or memo, or circular purported to have truncated the term of office of the Chairman of INEC, for instance, in accordance to any “civil service laws”, is an exercise in vain, and remains full of noise signifying nothing.  The constitution prevails! But was Professor Jega’s predecessor not so removed in 2010? He was. Then why not Jega? Ignorance of one’s rights is not binding on another repeating the same ignorance. Jega has publicly affirmed at a world press conference on February 7, 2015, that his term expires in June 2015 and that he was not thinking of resigning. He has work to do, and do he must. And he will not throw his country into unnecessary crisis by any sudden resignation. That is the least he owes Nigerians at this time.  Can the present senate remove Professor Jega by the constitutional address so required? I say NO! Jega may choose to resign, in fact, he may be intimidated to resign before the new dates for the 2015 elections. But will the former ASUU president, who stood firm for Nigerian lecturers in the face of dictatorial and imperial intimidation resign. I say he WILL not. I should appeal to Nigerians and the political class to lay aside all distractions, and let us focus on the options before us. The news media should educate the electorate on the limitations of our democratic offices. No player in our democratic field has absolute powers, they are all relative and subjective.

The distractions of election postponement, PVC collection, etc., should be stymied. If you are not sure about the availability of your PVC, do the following: Text “inec, the state where you obtained your TVC, your last name (i.e. surname), last five digits of your VIN (Voter Identification Number)” and send to 20120. Within seconds you will receive a text response from INEC including your full details and Polling Unit (PU) information.  I understand that some people are calling on INEC to allow them use the Temporary Voter’s Card (TVC) instead of the Permanent Voter’s Card (PVC). Some people have even taken the matter to court. Some Nigerians are very funny. You cannot obtain a judgment to reverse a process that has already taken off according to law. Neither can a learned judge give judgment that will discriminate in a supposedly common activity way underway and violate an extant law. Tens of millions of Nigerians have exchanged their TVCs for PVCs; and you want some voters to be subjected to card readers for verification and others not to? It is too late for this course of action, unless it is simply meant for nauseating comic relief. If you look at the back of your TVC, you will see this:  “ISSUED BY INEC PURSUANT TO SECTION 16 OF THE ELECTORAL ACT 2010.” What does section 16 of the Electoral Act 2010 say? It states as follows:

16 (1) The Commission shall design, cause to be printed and control the issuance of voters’ cards to voters whose names appear in the register.

      (2) No voter shall hold more than one valid voters’ card.

      (3) Any person who contravenes subsection (2) of this section commits an offence and shall be liable on conviction, to a fine not exceeding N100, 000 or imprisonment not exceeding one year or both.

       (4) The commission may, WHENEVER it considers it necessary, REPLACE all or any voters’ cards for the time being held by voters (Emphasis mine).

By accepting the TVC you agreed with what INEC wrote at the back pursuant to section 16 of the Electoral Act 2010. Friends, please, ignore all distractions and focus on the issues that underlie the 2015 elections. Who will you vote for and why? Are you better off today than you were four years ago? Vote according to your genuine answer. If your real income has been eroded by the rapidly devalued naira due to poor management of the economy during years of high oil prices, how should you vote? If the government is yet giving us excuses upon excuses while Nigeria is passing through a period of increasingly deteriorating electricity supply and in spite of the vaunted “privatization of the power sector”, how should you respond when alone in the voter cubicle, with only your ballot paper and a ready thumb? Are you proud of your country today? Are you confident of the pilot of our national plane today? Do you wish for a deadly crash and you would rather be overcome by religious or ethnic sentiment than look for a more skillful pilot? Nigeria needs concerted efforts at rescue. Let no Nigerian be afraid or moved. We know better. “He that increases in knowledge, increases in strength.” BE STRONG!

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