The sudden postponement of the upcoming elections from the dates initially scheduled for the exercise to new dates in March and April respectively, understandably has generated a lot of controversies within and outside the country. There are those who contend that the postponement may have dimmed public confidence apart from the possibility of such shift overheating the polity. Proponents of the shift, however, argue that the postponement was inevitable in the light of serious security challenges particularly in the North-East and the general lack of access to Permanent Voter Card by majority of Nigerians who may be disenfranchised if the initial dates for the elections were upheld. The merits of each of these positions arguably are debatable.

Notwithstanding, the essence of this intervention is to examine critically the legal implications of the postponement in the light of available constitutional and statutory provisions on the subject matter.

The duties and responsibilities of the Independent National Electoral Commission are well spelt out in Section 15 of the Third Schedule, Part 1 of the Constitution of the Federal Republic of Nigeria. The section listed the power of INEC to include organising, undertaking and supervising all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a State, and to the senate, the House of Representatives and the House of Assembly of each state of the Federation.

Section 30 of the Electoral Act 2010, as amended, gives INEC the prerogative of fixing the date of the election. There is therefore no ambiguity on the prerogative available to INEC to determine the dates of elections as part of its responsibilities. The question that arises, however, is: When may an election date be postponed once fixed by INEC?

The power to postpone an election is set out in Section 26 of the Electoral Act 2010; as amended. It reads:

“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 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 wording of the foregoing position appears restricted as opposed to being elastic, compared to a similar provision in section 121(1) of the Decree No. 50 of 1991. The said Section 121(1) of Decree 50 provides: “Where a date has been appointed for the holding of an election and there is reason to apprehend that a serious breach of the peace is likely to occur if the election is proceeded with on the date, the holding of the election may be postponed by the National Electoral Commission until some other convenient date to be appointed by it.”

In interpreting the wordings of Decree 50 above, his Lordship Akanbi JCA in the case of Alhaji Ali Sa’ad Birnin Kudu vs. Alhaji Buba Aliyu & 3 Ors and the National Electoral Commission and 2 ors vs. Alhaji Buba Aliyu and Anor (1992) 2 LRECN pg. 43 held as follows: “It is clear to me that once a date for an election is fixed, it may only be postponed if there is fear of a serious breach of the peace. Section 10 of the Interpretation Act does not alter the situation…”

If one were to embark on a comparative analysis of the two provisions i.e. Section 121(1) of Decree 50 of 1991 and Section 26 of the Electoral Act 2010, as amended, one can say without any fear of contradiction that while Decree 50 envisaged a valid postponement of an election when “…there is reason to apprehend that a serious breach of the peace is likely to occur if the election is proceeded with on the date…” without restricting such likely breach of peace to any specific area /areas, section 26 of the Electoral Act 2010 as amended stipulates that “…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 postponement is cogent and verifiable.”

The legality of the present postponement may well lie in the disparity in the provisions between Decree 50 of 1991 and Section 26 of the Electoral Act 2010, as amended.

It can be said that if we were to operate under the regime of Decree 50 of 1991, then it will be difficult to fault INEC for a postponement based on security challenges in the North-East, because the said Decree 50 was elastic enough to cover incidence of alleged breach of peace within some aspect of the country or in all parts of the country given the general wordings of Decree 50 of 1991. Unfortunately, the law on this subject may have changed dramatically given the restrictiveness in the application of Section 26(1) of the Electoral Act 2010, as amended.

It would seem that given the restrictiveness of the present law i.e. the Electoral Act 2010, as amended, the power of INEC to postpone elections, even if acknowledged and recognised, is limited to postponement of such elections in areas where breach of peace is envisaged and not the entire country where there is relative peace and stability conducive for the conduct of elections.

Again, the application of Section 26 as the grounds for the postponement of any election may not be automatic even in the area affected by breach of peace and security as same is dependent on the ability of INEC to furnish reasons for such postponement that is “cogent and verifiable”. The question remains, what is cogent and verifiable in the circumstances?

It is clear that Boko Haram insurgency in the North-east is a fact notorious in the public space and as such offers cogent and verifiable reasons for postponement of elections in the North-East. But it is doubtful whether such insurgency can be a justifiable reason for election postponement in other parts of the country where there is relative peace and security. Clearly, since there is no demonstrable evidence of insurgency in other parts of the country apart from the North-East, it is difficult to be able to justify postponement of elections in other parts of the country. It can be argued that what INEC ought to have done was to postpone elections to a later date in the North-East while holding elections in other parts of the country in line with the spirit and letters of section 26 of the Electoral Act 2010 as amended.

The second issue to consider is the time frame for the conduct of elections into the offices of the President, vice-President and other elective offices. There appears to be conflict between constitutional provisions and the provisions of the Electoral Act in this respect. Prior to the amendment of the Constitution, sections 132 (1) and (2) of the constitution provided as follows:

“An election to the office of the President shall be held on a date to be appointed by the Independent National Electoral Commission.

“ An election into the said office shall be held on a date not earlier than 60 days and not later than 30 days before the expiration of the term of office of the last holder of that office.”

However, by virtue of Section 11 of the 1st alteration to the 1999 Constitution, as amended, Section 132 as stated above was amended and altered as follows:

“In subsection (1), line 2, by inserting immediately after the word, “commission” the words “in accordance with the Electoral Act” and

(a) In subsection (2), lines 1 and 2, by substituting the words, “60 days and not later than 30”, for the words, “150 days and not later than 120 days.”

The implication of the foregoing is that the current constitutional provision stipulates that an election into the office of the President shall be held on a date not earlier than 150 days and not later than 120 days before the expiration of the tenure of the current office holder.

The Electoral Act on the other hand by virtue of Section 25 (6) states:

“An election to the said office of the president shall be held on a date not earlier than ‘150 days and not later than 30 days before’ the expiration of the term of office of the last holder of that office.”

It is clear from the foregoing that there is an obvious conflict between constitutional provisions and Electoral Act provisions on the same issue bordering on the conduct of the presidential poll. In the event of such conflict, it is clear that the provisions of the Constitution shall prevail. Support for this view can be found in section 1(3) of the Constitution which provides:

“If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.”

The implication of the foregoing, vis-à-vis the powers of INEC to postpone elections pursuant to section 26 of the Electoral Act, is to provide a further restriction on INEC to effect any such postponement within the time frame specified under the Constitution. Therefore, for any purported postponement of election by INEC to be constitutional and valid, such postponement must fall within the purview of a time frame of a date not earlier than 150 days and not later than 120 days before the expiration of the tenure of the current office holder.

Now the question is: Does the time frame provided by the Constitution above still fall within the period left for INEC to conduct the presidential poll before May 29?

I will leave the public to decide that.

But having stated the legal position above, it is useful to appreciate the predicament of INEC being an election management body and not a security agency. Therefore, if those knowledgeable and in charge of security matters rule that such security is not guaranteed, what can INEC do in the circumstances?

An atmosphere of relative insecurity has grave consequences; it has a devastating human rights impact; it discourages political participation and denies Nigerians the opportunity of electing leaders of their choice. It is also difficult to control violence once it erupts and the consequences on the polity of such grave security challenges cannot be overestimated.

The above notwithstanding, it is the duty of the state to preserve law and order and curb any form of insurgency without using such as an excuse to truncate the popular will and by extension the democratic process. This may perhaps explain why in war-ravaged areas such as Afghanistan, Iraq and Pakistan, elections were still conducted in recognition of the supremacy of the democratic process.

Finally, the postponement of elections in any given circumstances may be informed not only by legal considerations but by the reality of socio-economic, political, environmental and security considerations. It is on the strength of the latter considerations and not legal consideration that INEC may deserve public sympathy while calling on security agencies to rise to the challenges of the moment by being agents supportive of democratic process.

• Shittu, a legal practitioner, wrote in from Lagos.

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