2011: Fresh threats to polls

2011: Fresh threats to polls

Headlines Nov 15, 2010 By Dayo Benson & Clifford Ndujihe
LAGOS — Five months to the April 2011 general polls, a thick cloud of uncertainty is still covering the exercise. And this is in spite of assurances by President Goodluck Jonathan and Chairman of the Independent National Electoral Commission, INEC, Prof Attahiru Jega,  that the nation would witness free and fair elections next year.
According to Vanguard checks, some of the issues constituting booby traps for credible polls include uncertain legal basis for the elections occasioned by controversies trailing the amended and amendment of the 1999 Constitution and the Electoral Act; rising insecurity and waves of violence via kidnapping, bomb blasts, arms build-up; and do-or-die approach of some politicians.
The threatening violence
Militants, on Friday, bombed the Opokuma, Bayelsa State country home of the Special Assistant to the President on Niger Delta, Mr. Timi Alaibe, killing his police guard.
A day earlier, the 73-year old mother of an Action Congress of Nigeria, ACN governorship aspirant in Delta State, Mr. Jude Ukusare and a nine-year old girl, lost their lives after unidentified gunmen bombed the politician’s Efurum home, near Warri.
Indeed, INEC Chairman, Prof. Attahiru Jega, on Friday, in Ibadan, the Oyo State Capital, expressed concern over the wave of violence that always trail elections in the country.
Stating that the electoral umpire had met all the security agencies to ensure success of the elections, he urged traditional rulers, across the country, to prevail on their subjects not to allow themselves be used as tools for electoral mayhem.
The Defence Headquarters, vowed weekend, to ‘clean out’ existing militant camps in the country, especially in the Niger Delta Region, following waves of attacks by those it described as ‘criminals masquerading under the guise of militants.’
The military authorities would have to go beyond mere vows to handle the issue. The Movement for the Emancipation of Niger Delta, MEND, after a reported gun duel with the Nigerian military, kidnapped seven foreign workers of four oil servicing companies in Akwa Ibom State, weekend.
Amnesty programme
Indeed Chairman of the Foundation for Ethnic Harmony in Nigeria, FEHN, Mr. Allen Onyema, has urged the government to ensure success of the amnesty programme.
Onyema, who spoke after the passing out ceremony of Batch 8 of former militants at the Obubra Post Amnesty Transformational Training camp, however, said the initiative had been a huge success despite what he described as efforts by certain people to derail it.
He said that some politicians were trying to derail the amnesty programme in view of coming elections for their self_centeredness, urging “Government should be bold enough to go after certain individuals. When these boys get transformed, they say a lot of things. At times, when they receive phone calls, they put it on speaker phone for you to hear.”
Disturbed by the trend, Lagos State Chairman of the African Renaissance Party, ARP,  Chief Udoka Udeogaranya said his party would collaborate with the electoral commission on the campaign against electoral violence as a means of enthroning nonviolent electoral social system for Nigeria.
Second Republic Secretary to the Lagos State Government, Chief Olorunfunmi Reuben Basorun, urged President Jonathan to midwife credible polls by dropping his ambition.
“The main obstacle is President Jonathan contesting. If he stays off and devotes his energy to face the conduct of the elections, we shall have the goodluck of successful polls,” he said.
Arms build-up
The Plateau State Police Command, weekend, expressed worries over cases of arms build_up in Jos, the state capital, which has been under tension in recent times over rumours of illegal armory, particularly in Kuru area of Jos South Local Council.
State Commissioner of Police, Ikechukwu Aduba, decried the arms build-up while parading suspected arms manufacturers and other suspects.
Aduba said: “Why the arms build_up in Jos? Why? I had directed that people with illegal arms should surrender them to the police, but no one has come forward to summit their arms. They have the arms and are still keeping them.
That is why we are worried. Are we at war or preparing for war? Frankly, we are disturbed. But now that people have refused to surrender their arms to us willingly, we are using our intelligence network to discover illegal armory in the state.”
Adesina worries over arms proliferation
Relatedly, former Governor Lamidi Adesina of Oyo State, yesterday expressed concern over alleged arms proliferation by members of the ruling Peoples Democratic Party, PDP, in the state.
In a statement by Mr Wasiu Olatunbosun, the state Director of Publicity and Strategy of ACN, , Adesina alleged that the arms pile_up was in preparation for the 2011 polls.
Said the politician: “Recent violent attacks among opposing camps within the PDP, where dangerous weapons and sophisticated arms were freely used, left much to be desired. The siege imposed on the people of the state by those expected to serve them has reached its all_time crescendo in the past couple of months.”
He listed some of the worrying developments in Oyo State to include clashes of factions of the state NURTW, eruption of violence during a PDP rally in Ogbomosho and attack on suspended three members of the State House of Assembly last week.
Adesina urged the Inspector-General of Police, Mr Hafiz Ringim and other security agencies to constitute special panels to investigate the trends with a view to bringing the culprits to book if the nation’s desire for free, fair and credible election in 2011 must be realised.
Oyo PDP counters
However, the Oyo State PDP has countered Adesina’s claims and allegations, describing them as cheap blackmail.
Mr Yahya Adetunji, the state Director of Publicity of PDP, said: “As far as we are concerned in the PDP which is the ruling party, that allegation didn’t shock us. It is a cheap blackmail and blackmail is not good for our nascent democracy. They want to make sure they blackmail the ruling party and discredit the government of Gov Adebayo Alao_Akala in the eyes of the people of the state. They are looking for ways to deceive people and gain their sympathy but all that will not work for them.”
Kidnapping may scuttle polls in South-East
A management consultant and chieftain of the PDP, Chief Cliff Mbagwu, sees kidnapping and insecurity, especially in the South-East and Akwa Ibom state, as the greatest threat to the polls and laments that the problem was not being tackled seriously.
His words: “Nigerians have not yet been dealing with what could derail the polls, especially in the SouthEast. Kidnapping in the South East might affect the polls because a lot of credible candidates might be afraid to go home to campaign.
The Federal Government should take a serious look at the South-East, declare a state of emergency and ensure that some criminals in power did not make it impossible for credible candidates to campaign. If not, the next set of elected leaders will be worse than what we are having now.
Mbagwu has a soul mate in the Secretary of the Citizens Popular Party, CPP, Chief Sam Eke, who asked the government not to play politics with the menace because “kidnapping will surely have a negative effect on the forth coming election if not arrested now.”
Legal and constitutional obstacles
Aside the security threats there are also legal landmines on the path of the polls. Perhaps, the latest is last Monday judgment of Federal High Court, Lagos, in a suit filed by former President of Nigeria Bar Association , Mr. Olisa  Agbakoba (SAN). He had approached the court to challenge the validity of last constitution amendment carried out by the National Assembly without the President’s assent.
The court presided over by Justice Okechukwu Okeke ruled in his favour in the suit which had the Attorney General of the Federation, Mohammed Adoki (SAN) as a proper party.
In its judgment, the court relied on S.58(1) of the 1999 constitution. According to the section:
“The power of the National Assembly to make laws shall be exercised by bills passed by both the Senate and the House of Representatives and, except as otherwise provided by the subsection (5) of this section, assented to by the President.”
However, National Assembly had relied on the provision of S.9(1) which says “The National Assembly may, subject to the provisions of this section, alter any of the provisions of this Constitution.”
The implication of the judgement which the National Assembly has vowed to appeal is that all the actions so far taken by the two chambers of the National Assembly are null and void and of no effect until the president assents to the amendment.
Setback for INEC
For the INEC, the judgement is somewhat a setback. In the last amendment before the on-going exercise, the National Assembly had amended sections 116, 132 and 178 of the Constitution to enable INEC shift the elections date from January to April.
Before the amendment, the constitution empowered the commission to hold elections not earlier than 90 days and not later than 30 days to the expiration of tenure of office holders.
However, that amendment altered the days to not earlier than 160 days and not later than 120 days. It was when INEC cried out that elections were not feasible in January that made the National Assembly embark on fresh amendment which is now before state Houses  of Assembly.
By the virtue of the Federal High Court judgement, the last exercise of the National Assembly is inchoate until the president endorses the document. What this means is that both the National Assembly which donated power to INEC to conduct elections in April and the Commission which has been acting based on the donated power have acted and have been acting  in vain.
For instance S. 25 of the Electoral Act 2010 which empowers INEC to determine the order of election is derived from the constitution. According to S. 25 of the Electoral Act.”
“Elections into offices of the President and Vice President, the Governor and Deputy Governor of a state, and to the membership  of the Senate, the House of Representatives and the House of Assembly of each State of the Federation shall be held in the following order.”
Since the National Assembly has indicated its intention to appeal the judgement, the Federal High Court verdict on the constitution amendment is not final, but it remains the law for now. It is indeed not final until the Supreme Court pronounces on it.
Lawyers advise A-G
When a similar suit filed by Lagos Lawyer, Mr. Bamidele Aturu, came up at Federal High Court, Abuja Tuesday, the court referred the case to the Court of Appeal apparently to avoid further constitutional crisis since the matter is already on its way to the higher court.
In order to save time, some lawyers have advised the Attorney General of the Federation to urgently approach the apex court.
This is the view of INEC Resident Electoral Commissioner for Cross River State, Mr. Mike Igini.
‘’My call on the Attorney General of the Federation is to quickly proceed to the supreme court to fast track the entire process because there is really no time. Since the case will still go to the Supreme Court after the court of appeal, said IIgini.
However, the court on its own can refer the matter to the Supreme Court as provided in S. 295(2) of the Constitution which says”…“Where any question as to the interpretation or application of this constitution arises in any proceedings in the court of appeal and the court is of opinion that the question involves substantial question of law, the court may, and shall if any party to the proceedings so requests, refer the question to the supreme court which shall give it decision upon the question and gives to the court of appeal as it deems appropriate.”
No victor, no vanquished
However, speaking on the judgement in relation to INEC, Igini said  the judgement has not thrown up any victor or vanquished.
According to Igini who is also a lawyer, “the judgement of the Federal High Court is not a victory or defeat to any person but an advancement of democracy and constitutionalism because it is the judiciary that  is vested with the power to adjudicate on laws made by the legislature as provided in S.6 of the constitution”.
In respect to INEC, nothing fundamentally has changed. Sections 76, 116, 132 and 178 of the constitution which were amended before and just amended again still give INEC enough window to conduct the elections.
So, people have only expressed fears without being specific.” As far as INEC is concerned, the 1999 constitution is still in force and were bound by its provisions, so for us there is no problem whatsoever over preparations for  the 2011 elections, We are on course, and we are still  home and dry.”
Lawyers urge quick resolution
Eminent lawyers, weekend, were divided over the logjam and urged speedy resolution of the puzzle to save the 2011 polls.
Legal icon, Prof. Itse Sagay (SAN) took sides with the legislators that Presidential assent was needed for the amendment to become law and disagreed with the ruling of the High Court.
His views ran counter to those of Fred Agbaje, Bamidele Aturu and Richard Akinjide (SAN) among others, who insisted on the President’s assent.
Said Sagay: “The amended constitution does not require the President’s assent. The amended constitution can assent itself if it meets the 2/3 requirement of membership of the state Houses of Assembly.
I don’t think the President’s assent is necessary according to Section 9 of the Constitution since the amendment is a law jointly passed by the National Assembly and State Houses of Assembly and the President cannot sign laws made by state Houses of Assembly because it is outside his jurisdiction. Any law passed by the two assemblies automatically becomes law.
The best thing is for the Senate to ask its lawyer to refer the matter to the Supreme Court. S. 295(2) of the constitution allows counsel or Court of Appeal to refer a matter to the Supreme Court for interpretations and once it pronounces on it, the judgement becomes binding on both parties. It is clearly out of the reach of Mr. President.”
Agbaje counters
Agbaje countered, saying that the lawmakers should have sought Mr. President’s assent.
He urged INEC to work with the unamended 1999 Constitution until the Supreme Court decides otherwise.
Writing on the issue, eminent lawyer, Dr. Akpo Mudiaga-Odje (SAN), also urged the National Assembly to suspend the amendment exercise while the electoral umpire should stick to the old grundnorm to prepare for the polls.
He said the lawmakers and politicians courted trouble when they elected to carry out six major assignments less than six months to the polls.
The assignments include: New Electoral Act, 2010 (still undergoing amendment); Enacted a voided amended Constitution and yet proceed to further amend the voided amended constitution; to conduct elections in less than six months without a voters’ register up to now; to create states within six months yet no referendum has so far been held in accordance with Section 8 (1) (b) of the 1999 Constitution. We therefore don’t need clairvoyance of Nostradamus to know that their objectives will fail if not properly handled.”
Senate lauds court action
However, Senate spokesman, Senator Ayogu Eze, welcomed the court action as a courageous move which he said would help to deepen interpretation of the constitution even as he affirmed that the ongoing litigation would not in any way threaten the smooth conduct of the 2011 election.
Senator Eze in a telephone interview told Vanguard that the Senate was hopeful that the appeal filed by the National Assembly would receive accelerated hearing after the Sallah holidays.
“We are hopeful that this will be overcomed because 1, we have filed an appeal, 2, we believe that it will be better for our democracy that this matter is resolved in court, three we also know that in the United States a similar matter arose after their first amendment and the court there ruled that every bill required a presidential assent but that such assent was not required for the alteration of the Constitution and there is a lot of similarity between the United States Constitution and the Nigerian Constitution.
“So we are hopeful that this move will entrench the rule of law. But also we must commend the plaintiffs for their action because it was a very courageous move to entrench the rule of law.”