Femi Falana:
“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… 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.”

By Femi Falana.
The Independent National Electoral Commission 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 have ordered the INEC to conduct fresh elections in the relevant constituencies within 90 days with effect from the dates of the verdicts.

But since the INEC is currently constituted by two national commissioners, it lacks the power to fix dates for elections and conduct them. In other words, as the INEC is not validly constituted as required by section 159 of the Constitution of the Federal Republic of Nigeria, 1999 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.

That was the case of Action Congress of Nigeria v. Independent National Electoral Commission & Ors. (Unreported Suit No: FHC/CS/36/09) where the Court declared the composition of the INEC illegal and unconstitutional on the ground 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. In concluding the judgment the trial judge, the Honourable Justice Liman had this to say:

As the Counsel to the plaintiff in the afore-mentioned case I can say, without any fear of contradiction, that the said decision of the Federal High Court was not challenged at the Court of Appeal by the Federal Government. In fact, instead of rushing to the Court of Appeal in the circumstance, the Federal Government filled the vacancies in the INEC by appointing 11 national commissioners. 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.

 

“Before I end this judgment, let me remark on a very sad note. The Independent National Electoral Commission constitutes the most important indispensable bedrock on which our democratic institutions are built. Its function is central to the smooth and enduring evolution of our political structures. It is not an understatement to say that without a functioning INEC, no election into any political office will be possible. Then how comes that in the 11th year of the country’s journey into constitutional governance we do not have an electoral body with its full complement of members. We continued to pretend that all was well with our electoral system while the membership continued to drop from 13 down to 4 and it seems, we remain complacent as if all is well. I think something is wrong somewhere and the earlier both the executive and legislative departments of the government acted to reverse this shameful trend the better for the people of this country.”

As the Counsel to the plaintiff in the afore-mentioned case I can say, without any fear of contradiction, that the said decision of the Federal High Court was not challenged at the Court of Appeal by the Federal Government. In fact, instead of rushing to the Court of Appeal in the circumstance, the Federal Government filled the vacancies in the INEC by appointing 11 national commissioners. 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.

*Falana, Nigeria’s leading human rights lawyer,  is a senior advocate of Nigeria(SAN)