•INEC: Election will go ahead
From Davidson Iriekpen in Lagos and Charles Ajunwa in Awka, 02.05.2010
President Umaru Musa Yar’Adua’s absence from the country is about to claim yet another casualty – the Anambra State governorship election – scheduled for tomorrow.
Except a miracle happens today, the election will be rendered illegal as a Federal High Court in Lagos declared yesterday that the Independent National Electoral Commis-sion (INEC) as currently constituted is incompetent to conduct or organise any election in Nigeria.
Justice Mohammed Liman, who delivered the judgment in a case filed by the Action Congress (AC) challenging the composition of INEC, said the commission lacks the constitutionally recommended quorum of members to take decisions.
Only the President is empowered by law to nominate members into the INEC board.
The Vice-President currently lacks full presidential powers as he cannot nominate members of the board.
Justice Liman held that by virtue of Section 159 of the 1999 Constitution the quorum of INEC is five members and not four as is the case at present.
He submitted that the four members currently on the board of the commission are not competent to take any decisions in the name of INEC.
Justice Liman said: “On a very sad note despite the fact that INEC consist in the most important and indispensable bedrock on which our democratic institutions are built and its functions are central to the smooth evolution of our political structure, it is not an understatement to say that without a functional INEC no election into any political office would be possible. Then, how come that in the eleventh year of the nation’s journey into constitutional governance we do not have an electoral body with its full complement members?
“We continue to pretend that all is well with our electoral system when the membership continues to drop from 13 down to four and it seems that we remain complacent as if all is well. I think that something is wrong somewhere and the earlier both the Executive and the Legislative departments of the government act to reverse this shameful tread the better for the people of the country.”
Meanwhile, INEC said last night that it was yet to know the details of the judgment.
INEC National Commissioner in charge of Information and Publicity, Mr. Phillip Umeadi (Jnr.), said the commission had not been served and so it could not react to the ruling.
But the Resident Electoral Commissioner in Anambra State, Mr. Josiah Uwazuruonye, said the governorship election in the state would be held tomorrow as sheduled.
He also said he had not been served with any court notice to stop the election, and that no directive in that regard had come from any quarter.
Section 159 of the Constitution states that (1) “the quorum for a meeting of any of the bodies established by Section 153 of the constitution shall not be less than one-third of the total number of members of that body at the date of the meeting.”
Subsection 2 goes further to state that: “a member of such a body shall be entitled to one vote, and a decision of the meeting may be taken and any act or thing may be done in the name of that body by a majority of the members present at the meeting.”
Subsection 3 states that: “when such body is assembled for a meeting, the Chairman or other person presiding shall, in all matters in which a decision is taken by vote (by whatever name such vote may be called) have a casting as well as a deliberative vote.”
Subsection 4 states that “subject to its rules of procedures, any such body may act or take part in any decision notwithstanding any vacancy in its membership or the absence of any member.”
INEC is one of the bodies or commissions established for the federation and listed in Section 153.
AC had in December last year headed for the court, claiming that the INEC chairman, Prof. Maurice Iwu, and three other members of the board of the commission lack the required quorum to conduct the rerun election in Osun State.
Apart from Iwu, the party also joined Philip Umeadi, Victor Chukwuani, Mr. Solomon Adedeji Shoyebi, the Resident Electoral Commissioner of Osun State and INEC as respondents in the suit.
The party through its counsel, Mr. Femi Falana, had sought an order of perpetual injunction restraining the respondents from taking any decision on the election until the formation of sufficient quorum in accordance with Section 159 of the 1999 Constitution.
However, INEC in his reply to the suit through its counsel, former Attorney-General and Minister of Justice, Mr. Kanu Agabi (SAN), had insisted that the objective of the application was to review the judgment and orders of the Court of Appeal and to frustrate indefinitely the conduct of the election.
Agabi had also argued that the court was not competent and lacked jurisdiction to entertain the suit because it related to an electoral matter and that other parties involved and that might likely be affected by the decision were not present before the court.
But Justice Liman disagreed with the submission of the INEC lawyer.
According to him, the case before the court had nothing to do with the election petition decided by the Court of Appeal but on the composition of the board of the commission.
The judge noted that the reliefs sought by AC were within the jurisdiction of the court and that the reliefs were never an issue before the Court of Appeal.
He, however, refused to grant any of the declarative injunctions sought by AC among which is that the election be reversed or nullified, saying the court could not undo a completed act.
Justice Liman also refused to uphold the prayer of AC that the tenure of the Resident Electoral Commissioner (REC) for Osun State during the rerun election had expired.
He stated that the plaintiff failed to provide the court with any evidence showing the date the REC was appointed to enable the court take a decision.
AC had instituted the case when the Court of Appeal in Ibadan, Oyo State capital, ordered for the rerun of elections into Osun-east Senatorial District in the National Assembly and Osogbo Local Government seat of the state House of Assembly.
INEC then fixed December 12, 2009 for the rerun elections into the legislative seats, which became vacant when the Appeal Court in Ibadan voided the election of Senator Iyiola Omisore of the Peoples Democratic Party (PDP) and Hon. Jide Omoworare of AC.
However, all efforts to stop the election by the party failed as INEC eventually conducted the election on December 29 last year, an election which was eventually boycotted by the AC’s candidate Hon. Omoworare.