Date Published: 09/24/09
Head or tail, INEC is not aware of any Governorship
election in Anambra State in 2010 because Third Schedule, Part 1,
section 15, paragraph [e] of 1999 Constitution only empowers
them to conduct any election under the Constitution
and 2010 election is not recognized by the Constitution.
What Constitutional Right Has INEC In Conducting Governorship Election In Anambra State In 2010? By Emeka Oraetoka
The recent announcement by Independent National Electoral Commission [INEC] that governorship election will be conducted in Anambra State on February 6 2010 is perhaps the greatest unconstitutional statement to have come out of INEC since its inception in Nigeria. It is also an attempt at surrendering its constitutional duty of periodic conduct of elections in Nigeria.
Although, INEC said that the conduct of the election is in deference to Supreme Court ruling of June 14 2007, that Peter Obi’s tenure will end in March 17 2010. While the position of INEC could be legally correct on account of Supreme Court judgment, the question remains, is INEC aware of that judgment, considering the fact that the interpretation of section 180[2] of the 1999 constitution as regard Obi’s tenure was not election matter as Supreme Court and Peter Obi will make Nigerians to believe? Having seen that Peter Obi did not take INEC to court in the first place, as doing so would have amounted to an election matter, and so incompetent to be entertained by the Supreme Court; why should INEC dabble into a matter that it supposed not to be aware of in the first place?
It is a trite fact that where re-run elections took place arising from the 2007 general elections, the courts specifically instructed INEC to conduct elections and the period within which it must conduct the re-run elections stated, as INEC is aware because re-runs arose out of elections conducted by it [INEC]. The fact as it is here is that the election INEC conducted which brought Peter Obi to power is not in contention, but section 180[2]. Peter Obi had successfully challenged the election of Dr.Chris Ngige as specified by the constitution and won and INEC’s involvement ended there. How can the interpretation of section 180[2] which Obi sought in the court be the concern of INEC, considering the fact that the constitutional function of INEC is the conduct of general elections and defence of that elections in relevant courts? What then is the concern of INEC in fixing an election date in Anambra State, when it knows that the interpretation of section 180[2] as sought by Obi was a deferent issue altogether? It is not the function of INEC to fix election in Anambra State. INEC must wait for directive[s] from relevant court[s] and legislation from the National Assembly to conduct any governorship election in Anambra State. What they have done by fixing election in Anambra State may be legal from narrow point of Supreme Court judgment, but certainly unconstitutional.
It could be recalled that the only time Supreme Court mentioned INEC in Peter Obi’s case, was when it alluded to the fact that INEC should not have conducted governorship election in Anambra State that there was no vacancy as Peter Obi’s tenure has not ended. It is no more news that Supreme Court ordered Andy Ubah to vacate office for Peter Obi to complete his tenure. Except Supreme Court wrote INEC officially after the judgment on how to go about governorship election in Anambra State when Peter Obi leaves office, INEC is not officially aware of any governorship election in the State. It must be understood that the allusion that INEC should not have conducted election in Anambra State----, surely did not amount to nullification of Andy Ubah’s election as being insinuated in some quarters. It was just a comment acknowledging the conduct of an election; it does not mean that the election so conducted was illegal or unconstitutional. Much as we know that it is not right for Supreme Court to blame INEC for conducting election in Anambra State when Peter Obi’s tenure has not expired; the court did not equally say that the election so conducted was a nullity and unconstitutional.
The statement should not have come up from the court in the first place for the mere reason that Peter Obi did not approach it over election matter. Again in National Democratic Party [NDP] Vs Independent National Electoral Commission [INEC] case before the general elections of 2007, in Federal High Court in Abuja, INEC was given the go ahead to conduct general elections in Nigeria. This fact is there for everybody to see. On this account, INEC went ahead to conduct 2007 general elections. There was no court order stopping INEC from conducting election in Anambra State then, and so Supreme Court could not have meant that INEC was in error when it conducted governorship election in the State. Again, INEC has constitutional power to conduct elections in Nigeria, every four [4] years, starting from 1999. If we may ask, does it amount to crime if a woman cooks for her husband who has gone to work, only to be told by her husband that he had eaten at work and cannot eat the food prepared for him at home? The point being made here is that it would be wrong for the hypothetical man here to tell his wife that she ought not to have cooked for him in the first place. It would have been another issue if the man had placed a phone call to his wife before cooking that he will not be part of the food. If INEC had been instructed before the general elections of 2007 not to conduct Anambra State governorship election by Supreme Court, it would have been a different ball game now. From the foregoing, it would be wrong for any civilized person to think that the election of Andy Ubah, was unconstitutional or illegal. To habour such feeling is surely suicidal.
Even if it is conceded to Supreme Court that it has the constitutional right to protect the political fundamental right of Peter Obi, it is totally wrong for them to say that INEC ought not to conduct election in Anambra State; after all, the constitution is very clear on the function of INEC- the conduct of elections, and defence of the conducted elections. The only angle where “ought not to” comment could be acceptable is, if Supreme Court interpreted section 180[2] in relation to election of Peter Obi, in which case it would assume election dimension which was artfully dodged. Since Supreme Court elected to treat section 180[2] in isolation of election of Peter Obi, INEC is surely not aware of the arising judgment from Supreme Court and not expressly obliged to conduct governorship election in Anambra State in 2010. To do so will certainly be unconstitutional and illegal. INEC is constitutionally aware of governorship election in 2011 that is the position of Nigeria constitution.
On the issue of lack of vacancy in the State when the governorship election was conducted, the type of vacancy that should have existed remained hazy from the ruling. To start with, there was no vacancy anywhere in Nigeria before the general elections of 2007; this writer stands to be corrected on this claim. For instance, when President Yar’Adua was elected, the former president was still in office. The same fact holds true for State Governors, Senators Etc. so which vacancy was Supreme Court referring to? Even if we talk of election vacancy as anticipatory, the fact is that vacancy everywhere is generally in anticipation. The judiciary, particularly the Supreme Court will eventually come to realize that it is impossible to apply judicial activism in politics. Judicial activism in politics will only help to tear the foundation of democracy in Nigeria and set the country on the path of failed State status. What INEC must do now is to say that it is not aware of any governorship election in Anambra State in 2010, however, if anybody is desirous of contesting governorship election, the fellow should apply to the Supreme Court on the guideline for such election, after which it will presented to the National Assembly by way of a bill for an act for the conduct of governorship election in Anambra State in 2010. Otherwise, INEC will be helping in preparing the ground for a failed State situation in Nigeria.
Emeka Oraetoka
Information Management Consultant and political Researcher
Wrote in from Abuja
P. O.. Box 18928
e-mail:oramekllis@lycos.com
