In an advertorial in a newspaper on Wednesday, September 1, 2010, the Independent National Electoral Commission (INEC) stated that “pursuant to the powers conferred on the Independent National Electoral Commission by the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Electoral Act 2010 and all other powers conferred on it in that behalf, the Independent National Electoral Commission hereby informs all stakeholders and the general public that governorship elections will hold in all the states of the Federal Republic of Nigeria in January, 2011, except in Rivers, Edo, Ondo and Anambra states, where governorship elections will hold as indicated below:

“Rivers-June 2011; Edo –July 2012; Ondo- November 2012; and Anambra- November 2014.”
The electoral body added that, “the above clarification is necessitated by the amendments to Section 180 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and judicial pronouncements on the tenure of state governors”, stressing that “all political parties are, hereby, requested to make preparations to nominate candidates for the elections accordingly.”

The implication of the above publication is that the January polls would hold in six states, where earlier reports had indicated otherwise, based on rerun polls and dictates of the 2006 Electoral Act and Section 180, 1999 Constitution, prior to the 2010 amendment. The affected states are Kogi, Sokoto, Adamawa, Bayelsa, Cross Rivers and Ekiti.

There is no doubt that the cases of the Rivers, Edo, Ondo and Anambra States are not contentious, hence nothing to contest as the Supreme Court, the apex arbiter, had made final pronouncement on them. But those of the other aforementioned six states are yet to be resolved by the Court of Appeal and the Supreme Court.

Already Governor Segun Oni of Ekiti State had appealed the judgment of a Federal High Court which stated that the tenure of Oni should terminate on May, 29, 2010 . Saying that the fresh oath and new certificate of return issued to Governor Oni, after winning the rerun poll of April 24 and May 5, 2009, were of no consequence, Justice Ambrose Allagoa of Federal High Court who entertained the matter in Ado Ekiti before his transfer to Jos, Plateau State, ruled in Jos that Oni cannot claim another term because, according to him, the Court of Appeal in Ilorin, Kwara State, only annulled some results of the 2007 polls and not the entire results that brought him to power in the first instance.

He said that the rerun election was just the concluding part of the exercise. Whether the judgment was right or wrong, Governor Oni had appealed it as of right going by the tenets of the 1999 Constitution and rule of law.

The matter is yet to be disposed of at the Appellate Court, yet Oni has the right to go to the Supreme Court, just as the plaintiff/respondent, Mr. Sunday Adunmo, and four others of the defunct Action Congress (AC) have similar rights, if they get unfavourable judgment at what ever level. INEC ought to have waited for the judicial pronouncements before it’s advertorial.

Reports also have it that the INEC had approached the Supreme Court for the Interpretation of the relevant sections of the 1999 Constitution, especially Section 180 (2) under which Oni and six others contested the governorship elections, including the rerun polls. Has the Supreme Court made any pronouncement, even secretly?

It is important to note the wide difference between Section 180 (2) of 1999 Constitution and Section 180 (2) as amended, which was not known to the parties, candidates and the electorate at the time of those elections, including reruns.

The original Section 180 (2) states: “The governor shall vacate his office at the expiration of a period of four years, commencing from the date when (a) in the case of a person first elected as governor under this Constitution he took the oath of allegiance and the oath of office; and (b) the person last elected to that office took the oath of allegiance and oath of office or would, but for his death, have taken such oath.”

However the amended Section 180 (2) which was not in the contemplation of the drafters of the 1999 Constitution states “In the event of a rerun election, the time spent in office before the date the election was annulled shall be taken into account.”

The implication of the amendment is that, henceforth, the time spent before the rerun shall be taken into consideration. But is it in conformity with the rule of law to enact a law or amend a law and backdate it? Simply put, can laws take retroactive effect? The answer is no. The legislature may think in retrospect, but it cannot make laws in retroactive. It is an aberration and absurdity!

It is also not out of point to note that said amended Section 180 (2) of the Constitution being invoked by the INEC is still inchoate ,as the president has not appended his signature in line with the Constitution, contrary to the position of the National Assembly. Every legislation must be assented to in accordance with Section 58(1) (5) which must be read in conjunction with Section 9 (2) and 315 of the 1999 Constitution of the Fereral Republic of Nigeria. This is without prejudice to a situation where the President declines his assent.

Chief Richard Akinjide, (SAN), former Attorney General of the Federation and Professor Ben Nwabueze (SAN) share the same view with this writer, while Akinjide added that the amended document must be lodged with the Supreme Court. So, which law or Act is the INEC applying?

The affected six governors have reacted either directly or through their respective aides, saying that the INEC had acted in bad faith. Governor Oni’s spokesman, Wale Ojo-Lanre, said it was wrong for the INEC to base its decision on the amended Electoral Act and the amended Sections of the Constitution,, declaring that only the Judiciary could resolve the impasse. He raised posers on the period Governor Oni vacated office for 79 days and the Speaker of the State House of Assembly took charge and later handed over after winning the rerun polls.

“Mark you, Governor Oni was re-sworn in, he took new oath of office and Allegiance. So, let us wait until the matter is over,”he said.

Prince Tosin Jegede, a Peoples Democratic Party (PDP) chieftain said that they were not afraid of election in January, next year, but opined that the law must be respected and followed.

“Come rain, come sunshine, we will win any election in Ekiti. We have the numerical strength to win polls,” he said.

However, Mr. Femi Falana, a member of National Conscience Party (NCP) and governorship aspirant in Ekiti State has hailed the INEC position  that election must hold in Ekiti next year.
I think, however, that the INEC boss, Attahiru Jega, may be playing to the gallery, exhibiting the antics of Louis Fillippe in the ancient European history, who, in an attempt to please all, ended displeasing all.

Akintola, a public affairs analyst writes from Ado Ekiti.