BY FEMI FALANA
By virtue of section 26 of the Electoral Act, an election may be postponed if a serious breach of peace or violence is likely to occur or on account of natural disaster or other emergencies. To prevent any abuse of power, the reasons for postponement of any election must be cogent and verifiable.
Furthermore, Section 105 of the 1999 Constitution of Nigeria provides that if the Federation is at war in which the territory of the country is physically involved and the President considers that it is not practicable to hold elections, the national assembly may pass a resolution to postpone the election. And such postponement shall not be more than six months at any one time.
Therefore, any postponement of elections on account of logistical or operational reasons cannot be justified under the Electoral Act or the Constitution. Since general elections had been postponed on two previous occasions due to lack of adequate preparations, the Independent National Electoral Commission (INEC) ought to have prevented the shifting of the 2019 general election.
Even though all the political parties have blamed INEC for the postponement, some of them contributed to the national shame and embarrassment. Owing to the decision of political leaders to select and impose candidates on their parties in utter violation of section 87 of the Electoral Act, many aggrieved candidates rushed to court for legal redress.
Consequently, not less than 600 pre-election cases were filed and are pending in the various courts while not less than 40 orders have directed INEC to accept the names of candidates who won the primaries but were shortchanged.
The resort to litigation due to the impunity of majority of political parties contributed to the unwarranted delay in the preparations of INEC for the general elections.
It is interesting to note that both APC and PDP have traded their usual blames over the postponement of the general election by the INEC. But apart from INEC, both parties ought to apologise to Nigerians for their deliberate refusal to implement the far reaching recommendations of the Electoral Reforms Panels headed by Retired Justice Mohammed Uwais, Sheik Ahmed Lemu and Dr. Ken Nnamani which were set up by the Yar’Adua, Jonathan and Buhari regimes respectively. Each of the panels had recommended the unbundling of INEC for effective performance. For instance, as INEC lacks the capacity to prosecute electoral offenders, an electoral offences commission/ tribunal was recommended for the enforcement of laws to address all forms of electoral offences and consequently stem the incidence of electoral violence.
Even the panels had recommended that the posts of the chairman and other members of the INEC be advertised in order to make them independent of the Executive. But in a bid to sustain the status quo of electoral fraud, these recommendations and others have been rejected by the PDP and APC-led federal government.
The shameful postponement of the 2019 general election would not have occurred if the federal government had unbundled the INEC and ensured the practice of internal democracy in the political parties. It is public knowledge that both APC and PDP have not committed themselves to electoral reforms.
Hence, they have conveniently forgotten that the late President Umaru Musa Yar’Adua had admitted that the 2007 general election which produced his regime was highly flawed. Since the system will continue to produce flawed elections, all democratic forces should mount sufficient pressure on the federal government to implement the recommendations of the aforesaid electoral reform panels, once the 2019 rescheduled elections are concluded.
Meanwhile, INEC which has shifted the general election by seven days is alleged to have turned round to ban political parties and their candidates from further campaigning for votes. With respect, INEC has not paid attention to Section 99 of the Electoral Act which provides that the period of campaigning in public by political parties shall end 24 hours before polling day. Since elections have been shifted, the period of campaign has also shifted and will end 24 hours to the new polling day.
Therefore, the limitation of campaign imposed by INEC should be reversed without any delay. Furthermore, INEC should comply with all valid and subsisting court orders with respect to the candidates sponsored by political parties for the general elections.
Otherwise, the courts may annul some of the elections conducted by INEC on grounds of exclusion of qualified candidates.
CCT is not a Unit of the Presidency
In dismissing the allegation of judicial misconduct arising from the circumstances surrounding the suspension of the Chief Justice of Nigeria, Mr. Justice Walter Onnoghen, the Chairman of the Code of Conduct Tribunal, Mr. Justice Danladi Umar has questioned the power of the Federal Judicial Service Commission to query him.
According to him, the Code of Conduct Tribunal is under the Presidency and as such the Chairman and the two other members of the Tribunal only report to the President of the Republic. To justify his queer position, Justice Umar said that a former Chief Justice had warned the members of the Tribunal to stop calling themselves judges.
With respect, the Chairman and members of the Code of Conduct Tribunal are recognised as judicial officers by the Constitution.
For the avoidance of doubt, the Tribunal Chairman shall “be a person who has held or is qualified to hold office as a Judge of a superior court of record in Nigeria…”
By virtue of section 36 (1) of the Constitution, the Code of Conduct Tribunal shall be constituted in such manner as to secure its independence and impartiality.
In Federal Republic of Nigeria v Nuhu Ribadu (unreported Charge No CCT/ABJ/01/2009) the defendant was charged with failure to declare his assets before the Code of Conduct Tribunal. As the defendant’s counsel we challenged the competence of the Tribunal to try our client, as it was not independent of the Presidency whose Attorney General was the Prosecutor. In dismissing the objection, the Tribunal made it abundantly clear that it was independent of the Presidency. However, the Tribunal severed its illegal relationship with the presidency while the then Attorney General of the Federation, Mr. Mohammed Adoke, SAN, withdrew the charge. Curiously, Justice Danladi Umar who was a member of the Tribunal at the material time has turned round to reduce himself to a member of staff in the Presidency.
It is regrettable to note that a Tribunal established by the Constitution as an independent juridical organ of the Federation has conveniently reduced itself to an appendage of the presidency. Apart from the Chairman and members who are appointed by the President on the advice of the National Judicial Council, the staff of the Tribunal are not appointed or seconded by the Presidency. It is expressly stated in the Constitution that the power to appoint the staff of the Tribunal and to exercise disciplinary control over them shall vest in the members of the Code of Conduct Tribunal and shall be exercisable in accordance with an Act of the National Assembly.
Contrary to the embarrassing position of the Tribunal Chairman, Paragraph F of Part 1 of the Third Schedule to the Constitution, 1999 as amended, provides that the Federal Judicial Service Commission shall advise the National Judicial Council in nominating persons for appointment and removal of federal judicial officers, including the Chairman and members of the Code of Conduct Tribunal.
Paragraph 15 of Part 1 of the Fifth Schedule to t1he Constitution provides that the President shall appoint the Chairman and members of the Code of Conduct Tribunal on the recommendation of the National Judicial Council. The retirement age of Chairman and members of the Code of Conduct Tribunal is 70 years like Justices of the appellate courts. They cannot be removed from office before attaining the prescribed retirement age. Unlike ministers and staff in the Presidency who can be removed by the President, the Chairman and members of the Code of Conduct Tribunal shall not be removed from office by the President, except upon an address supported by two-thirds majority of each of the House of the National Assembly on grounds of misconduct or for contravention of the code of conduct for public officers.
In the light of the foregoing, the Federal Judicial Commission was perfectly in order when it queried the Chairman of the Code of Conduct Tribunal with respect to the allegation of judicial misconduct levelled against him. Since the power of the Federal Judicial Service Commission to recommend to the National Judicial Council the removal of the Chairman and members of the Code of Conduct Tribunal cannot be exercised without conducting an inquiry into the allegation of judicial misconduct involving federal judicial officers, Mr. Justice Danladi Umar is advised to reply the query properly issued and served on him. If he fails to reply the query, the Federal Judicial Service Commission may wish to recommend his removal from office to the National Judicial Council pursuant to paragraph 13 (a) of Part 1 of the Third Schedule to the 1999 Constitution which will in turn make appropriate recommendations to the President.