Human rights lawyer, Mr. Femi Falana on Sunday explained why the Independent National Electoral Commission (INEC) lacked power under the 1999 Constitution to take decision on the Bayelsa and Kogi States governorship elections.
According to him, since statutorily it requires five national commissioners, it would be illegal to conduct the elections with just two as presently constituted.
Falana, a Senior Advocate of Nigeria (SAN), also said INEC required a minimum of five national commissioners to form a quorum to take decision, citing the decision of a Federal High Court in the case involving the defunct Action Congress of Nigeria (ACN) and INEC.
He expressed aversion to a situation whereby the electoral umpire would be operating with only two commissioners.
The senior advocate argued that since the INEC “is currently constituted by two national commissioners, it lacks the power to fix dates for elections and conduct them.”
He added that the INEC “is not validly constituted as required by section 159 of the 1999 Constitution as amended its decisions are liable to be set aside. Even when the INEC was constituted by a chairman and three other national commissioners in 2010, the Federal High Court held that the electoral body was not competent to take any decision.”
He referred to the case of ACN v. IINEC & Ors, where the court declared the composition of the INEC illegal and unconstitutional on the grounds that the four national commissioners who were in office at the material time could not take any valid decision as the quorum of the INEC should not be less than five national commissioners at any point in time.
Instead of rushing to the Court of Appeal after the trial court delivered its judgment, Falana pointed out that the federal government filled the vacancies in INEC by appointing 11 national commissioners.
He added that the five- year term of office of the national commissioners of INEC “has since expired by effluxion of time. In the same vein, the term of office of over 20 Resident Electoral Commissioners has since expired.
“As the judgment of the Federal High Court cited above is binding on the federal government by virtue of section 287 (3) of the Constitution President Mohammadu Buhari ought to fill the existing vacancies in the INEC without any further delay.
“Otherwise, the results of the forthcoming governorship elections in Bayelsa and Kogi States as well as those of legislative elections in the various states of the federation are liable to be set aside on account of the illegal composition of the INEC.”
He further pointed out that the INEC “has announced the fixture of dates for the governorship elections in Bayelsa and Kogi States. In addition, a number of the governorship/legislative election petition tribunals sitting in the various states of the federation have annulled some results of legislative elections due to proven cases of electoral malfeasance.
“The tribunals has ordered the INEC to conduct fresh elections in the relevant constituencies within 90 days with effect from the dates of the verdicts,” the senior advocated explained.