THIS DAY
Jonathan, Other Aspirants Return to Drawing Board
•Lawyers list steps to avoid constitutional crisis
By Yusuph Olaniyonu, Vincent Obia and Olawale Olaleye, 09.25.2010
Following the proposed postponement of the 2011 elections time table, as being requested by the Independent National Electoral Commission (INEC), President Goodluck Jonathan and the four other aspirants seeking the presidential tickets of the Peoples Democratic Party (PDP)have been forced to halt their campaign programmes and return to the drawing board.
This is because the possible shift of the time table for the general election has altered and changed all political calculations over who gets what in the next political dispensation, especially the Presidential race.
Apart from Jonathan, other PDP presidential aspirants are General Ibrahim Babangida, former vice president Atiku Abubakar, immediate past National Security Adviser, Lt. Gen. Aliyu Muhammed Gusau and Kwara State Governor Abubakar Bukola Saraki.
Meanwhile, lawyers yesterday warned that apart from the time constraints which INEC said could hamper its ability to organise a credible election, there are other provisions of the amended constitution and Electoral Act 2010 capable of causing constitutional crisis after the 2011 polls.
Worst affected by the possible change in the election time table may be President Goodluck Jonathan whose seemingly unstoppable momentum built from a stellar performance at his Eagle Square presidential declaration on September 18 may have been slowed in its tracks as political leaders across the country press the reset button while waiting on INEC and the National Assembly for a new time table.
Other PDP presidential aspirants like Babangida and Atiku who, according to THISDAY Trending analysts, had seemingly lost some grip on powerful PDP Governors and instead reached out to Northern leaders for consensus northern candidacy, along with Gusau and Saraki, may now have time to recover, replan, and mount a formidable challenge to President Jonathan.
This is because every key participant in the race would have to pause and restrategise in response to new developments that will follow the change of the time table.
According to a PDP Governor, who spoke on condition of anonymity “whatever happened at Eagle Square has now been overtaken by INEC’s action, we now have to review our options when we get clear signals from the National Assembly and INEC. As you know other candidates can now emerge and given the amount of time ahead, anything can happen”.
Another PDP Governor from the South South said: “we have to go back to the drawing board and see how we can sustain and re-enact Jonathan’s momentum as the previous calculations on who will win the primaries will no longer be reliable”.
It is believed that all the old alliances and pledges of support for any of the five PDP presidential aspirants made before last weekend, when INEC made public its desire for more time to hold the various activities preceding the general election, may have collapsed.
THISDAY gathered that PDP members are saying that once the rules and dates governing the presidential election change, then new realities will have to be confronted by all the players in the game.
The changes in the election time table are said to affect the loyalty of individual delegates, the position of the power blocs and the stand point of the king makers.
The events leading to the September 18 rally in Abuja where President Jonathan declared his intention to stand as a candidate in the PDP primaries, which have seen the president clearly emerging as the candidate to beat in the PDP have changed completely.
THISDAY gathered that all PDP presidential aspirants may have to re-open negotiation with all delegates, the power brokers who control the delegates and other strategic stakeholders to seek their support and loyalty afresh.
Also affected by the new development is the consensus arrangement being planned by some northern leaders led by Mallam Adamu Ciroma in which a team of 17 “wisemen” will select one of the four PDP presidential aspirants while the others will withdraw and support the sole northern candidate to slug it out with President Jonathan.
The president is the only aspirant so far from the South.
The candidates involved in the consensus arrangement need to also readjust their position in line with the new development.
Another PDP governor added that the fact that the party headquarters has suspended its time table for party primaries, congresses and the national convention already signalled the fact that all activities will begin afresh.
A PDP chieftain from the north who corroborated the position of the governor added a new dimension that the time gap that may be created by INEC’s postponement of election time table may encourage new aspirants to join the race.
“This will further complicate issues for the present aspirants and the delegates. We are in for a lot of surprises and interesting development,” the party chief said.
Sources say the camp of two PDP presidential aspirants have been jubilating over the proposed postponement of the election time table as according to members of the campaign teams, “the game that some people thought had been closed is now glaringly open. We will now see who are the real politicians. We can all return to the open field and hustle for delegates.”
While listing areas of the amended constitution and electoral law, which may lead to constitutional crisis in future, the lawyers, who spoke with THISDAY at the weekend said a simple fresh amendment process or the resolution of the pending suit seeking court determination of whether the constitution amendment process requires presidential assent or not can help to resolve the logjam created by INEC’s demand for extension of time.
Mr. Paul Usoro (SAN) and Mr. Femi Falana yesterday warned that the provision of Section 133 (2) (a) of the 2010 Electoral Act, which makes the court of Appeal, a court of first instance in the case of presidential and governorship elections will create constitutional crisis capable of shutting down the judicial process.
The said Section 133 is a reflection of the amendment of the provision of Section 285 (2) of the 1999 Constitution which states that “there shall be established in each state of the federation one or more election tribunals to be known as the Governorship and legislative House Election Tribunals which shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether any person has been validly elected to the office of Governor or deputy governor or as a member of any legislative house.”
The New Electoral Act however makes the court of Appeal the court of first instance in presidential and gubernatorial elections.
It is believed that if election is held in 32 states of the 36 states in 2011 and the Appeal Court has to handle election petitions from all the states in addition to that of the Presidential election, it may overstretch the appellate court which has only 15 divisions and 70 justices.
A lawyer, who wishes to remain anonymous yesterday told THISDAY that with a constitutional quorum for hearing each petition, only about 14 panels which would have to hear all petitions within 180 days of filing and deliver judgement.
The lawyer note that in the recently held Anambra governorship election, there are six election petitions, an indication of the deluge that the Appeal Court may face if it is constituted as election tribunal for governorship polls.
“The whole idea is to decongest the appellate courts. The ultimate is to have good elections with no election petition at all. That is why everything must be done to assist INEC to conduct a successful voter’s register and ultimately a credible poll,” Falana said.
Speaking on the same issue, Usoro said the new provision of the Electoral Act would put pressure on the Court of Appeal.
“The provision will not make the performance of the Court of Appeal better. The number of justices are limited and inadequate for this new responsibility. The danger is that the pressure will later shift to the Supreme Court which will be forced to stay action on all other matters while attending to election petitions,” Usoro said.
He advised that the National Assembly while reviewing election postponements should also correct the anomaly created by the new Electoral Act by reverting to the old arrangement.
The Senior Advocate further advised that the Attorney General of the Federation should liaise with heads of the various levels of courts to know what challenges judges meet in attending to election petitions and how they can be helped to do better.
However, Prof Itse Sagay (SAN) disagreed with Falana and Usoro. He said: “I think their fear is being exaggerated because it is not in all cases that election petitions will be filed at the Court of Appeal. It is just in the governorship and Presidential elections. While I agree with them that the Appeal Court might be a bit stressed, the gains are more. For instance, allegations of bribing judges with billions and so on will no longer be feasible. Besides, the elections are going to be staggered and about four or six states are not going to partake in the next one, so there is really nothing to fret about. It is true that there will be workload on the Appeal Court, the gains are more than the disadvantages and I think it is not a bad one.”
On the issue of how to accommodate the postponement of election time table as requested by INEC, most of the lawyers who spoke with THISDAY agreed that INEC chairman, Professor Atahiru Jega’s call on Tuesday for a two-month extension of the election timetable was a difficult request.
“The extension that Jega is seeking will require the National Assembly to amend the constitution again. That is, to my mind, asking for the impossible,” said former president of Nigeria Bar Association (NBA), Mr. Olisa Agbakoba.
INEC had on September 7 announced a timetable for the 2011 general elections, which scheduled the polls as follows, National Assembly elections, January 15; presidential elections, January 22; and state assembly and governorship elections, January 29. Party primaries were scheduled to hold from September 11 to October 30, while voter registration was slated for November 1 to 14. The timetable was based on the recent amendments to both the constitution and the Electoral Act.
However, the commission’s call for more time to conduct the elections has created controversy, with some even envisaging a constitutional crisis.
But constitutional law expert, Professor Itse Sagay, said, “There should be no constitutional crisis,” as the credible poll promised by Jega could still be achieved within the context of the alteration he is seeking.
Sagay said, “It is obvious from what INEC has said that it cannot conduct credible elections in January. It needs an extension of time – about three months – to be able to do the registration and all the other details, including the printing of the ballot papers, and organise its logistics properly; recruit people in over 120, 000 polling stations, and so on.
“That means we should actually reduce the period election has to be conducted before the handover. Right now, the minimum period election has to be conducted before handover date is 120 days. We should go back to the original 30 days so that they would have enough time to conduct the elections. As I said, there should be no crisis because the whole country has one mind; one attitude; one conviction on this and that is there should be credible elections.”
Sagay stated how the various changes could be achieved without much ado.
“It is the amended constitution that needs to be amended. It is just one section. That is the section that allows INEC to conduct election in at least 120 days before the handover date. All they need to do is to pass a resolution in the National Assembly suspending that portion for this year – that is for it not to come into effect until a later date. And then, send it to the various Houses of Assembly for endorsement, and it becomes workable.
Just for this year. So, once the dates are fixed, the new dates of 120 days before handover automatically come into being again. But for the purpose of this year, they can suspend it, maybe, say for six months before it can come into operation.”
He believed the second amendment that would grant the poll extension is not as rigid as it is thought to be.
Professor Yemi Osibajo (SAN) called the current controversy over election timeline a “self-inflicted problem,” blaming it on the National Assembly for failing to consider inconsistencies observed by experts during the constitution amendment process.
He said, “When CODER (Coalition of Democrats for Electoral Reforms), which before the Electoral Act was passed, explained in details, how long it would take to perform each of this operation and why April was a more certain- more realistic time than January, the National Assembly carried on as if it was achievable. So, as far as I am concerned, this is a self-inflicted problem.”
Osibajo, however, believed the legislature could still apply their legislative powers to correct anomalies in the election process.
“Really, what they ought to do is to make all the necessary amendments to sort this out; after all, they have lawmaking powers. As far as I am concerned, it is the responsibility of the National Assembly to do the proper thing, which is the amendment of that one section,” he said.
Falana, said a second amendment to the constitution that would accommodate the election extension is achievable with commitment on the part of members of the federal and state legislatures.
“To achieve the extension,” Falana said, “the law would have to be amended. And when there is commitment, this is achievable. They can pass the law in one week if there is commitment. If the political will is there, all that can be tidied up between the leadership of the National Assembly and the leadership of the NBA. The NBA has already done a study even beyond what INEC is asking for, what the National Assembly has passed by way of Electoral Act as well as the amended constitution.”
The lawyers also said the court’s pronouncement on the propriety or otherwise of the recent constitution amendment is key in trying to resolve the timetable extension controversy and setting a definite direction for INEC.
NBA and Agbakoba are in court trying to stop the National Assembly from implementing the amended constitution until it is assented to by the president.
“There is a suit filed by NBA seeking court interpretation of whether an amendment has actually been effected or not. The first thing that the court can do is to hear the NBA suit and determine it. The court decision will help to determine if we need to go through another amendment or not,” said Usoro (SAN).
On the question as to whether or not the amended constitution requires the president’s signature, Sagay said, “It is a very controversial thing but I believe that they would not need the Presidential assent. No, we don’t need it because if you look at the provision of Section 9, it is very clearly written: it is an Act of the National Assembly, not a bill.
That’s that. Number two, this thing is going to all the Houses of Assembly, so, I don’t see the President being authorised to sign laws that are being made by the Houses. It is an amendment of the constitution and not a normal law at all. It is like a Constituent Assembly. We can say that the National Assembly and the state Houses of Assembly acting like a Constituent Assembly and changing our fundamental law. It does not need the assent of one person, it just needs, shall I say, the approval of the representatives of the people. We don’t need one person to do that but the approval of the representatives of the people. Once that is done, then, the Act is accomplished.”
Falana agreed. “I disagree with those lawyers that are saying the amended constitution requires the assent of the president. Why did it not require the assent of the governors when it was taken round the 36 states of the federation? There’s no provision in the constitution that states that. All those who are arguing in favour are doing so on assumption. They are saying any bill must go to the President. The constitution does not say so,” he said.
