Postponing the February Elections, an Intention to Commit Treason.

Find below a link to Femi Falana's analysis of the postponement of the February 2015 elections. Did the actions of the NSA, DSS, and Military Chiefs amount to treason?

It should be noted that the steps taken for the postponement of the election is unconstitutional and ultra vires the 1999 constitution as amended. By this, I mean, the act of the NSA communicating directly with INEC on the security situation in Nigeria is not the valid approach.  It is also disturbing that the INEC Chairman, Professor Attahiru Jega went ahead to postpone the elections based on this communication. The proper action which would have been valid in a situation where there's a concern as to security, would have been the NSA communicating directly with the National Security Council through the President of the federation.

Section 153 (k)  of the 1999 Constitution as amended established a body known as the National Security Council. This body is charged with the responsibility of advising the President on matters relating to public security including matters relating to any organisation or agency established by law for ensuring the security of the Federation. This is provided for in Part I of the Third Schedule to the Constitution.

If you remember last week, I wrote on the circumstances which would warrant a postponement of elections. Particularly note Section 26 of the Electoral Act 2010 as amended, which describes the circumstances which allows for the postponement of election. It is provided in subsection 1 that: " ...or it is impossible to conduct the elections as a result of natural disasters or other emergencies, the commission may postpone the election and shall in respect of the AREA, or AREAS concerned..."

By postponing the elections, what has the INEC done? Simply, it has acted ultra vires its own statute. It has acted outside the provisions of the law which spell out its powers and duties. Moreover, the postponement effectively gives too much credence to the insurgents and has in a way served as a boost to their operations. This action is tantamount to an insurgent group holding the country to ransom. What have we done?

The postponement should have been restricted to areas that would be affected by the operations of the insurgent group if the election had proceeded as scheduled.

Well, we continue to see how our constitution is been subverted in the interest of a few. How will the electoral process/ political will play out in the forthcoming months? Let's wait and see.

http://www.premiumtimesng.com/news/top-news/176468-nigeria-2015-nsa-dasuki-military-chiefs-commit-treason-coup-plotting-falana.html

SHOULD THE ELECTIONS BE POSTPONED?

Jonathan Wants Elections Postponed for 6 Months, INEC Says Elections Will Hold As Scheduled | Sahara Reporters

The foundation for the Postponement of elections can first be found under the 1999 Constitution of the Federal Republic of Nigeria as amended.  

 Section  64 (2) of the 1999 Constitution of the Federal republic of Nigeria as amended provides that :

       If the Federation is at war in which the territory of Nigeria is physically involved and the President 

       considers that it is not practicable to hold elections, the National Assembly may by resolution extend 

       the period of four years... from time to time but not beyond a period of six months at any one time.  

Firstly, from the provision above, the President of Nigeria can determine when it would not be practicable to postpone elections. This is clear from the wordings of the above section, 'and the President considers it is not practicable to hold elections' However, though the President can exercise his discretion after considering that it would be impracticable to hold elections, his consideration must be presented to the National Assembly, who then decides either to or not to postpone elections. 

For the purpose of emphasis, for there to be a postponement of elections, it is
required that the National Assembly resolve to extend the initial term
of four years for a period not beyond a period of six months at any one
time. This is also provided for under Section 135 (3) of the Constitution.

The National Assembly, in resolving an issue where it is not expressly provided for on the method of voting or the mode of exercising its power to vote on a particular question or issue, will do so by a simple majority. This is provided for under Section 56 (1) and (2) of the Constitution.

Section 56 of the Constitution  provides:

              (1) Except as otherwise provided by this Constitution, any question proposed for decision 

                   in the Senate or the House of Representatives shall be determined by the required majority

                   of the members present and voting; and the person presiding shall cast a vote whenever

                   necessary to avoid an equality of votes but shall not vote in any other case. 

             (2) Except as otherwise provided by this Constitution, the required majority for the purpose

                  of determining any question shall be a simple majority.

Both Section 135 (3) and 64 (2) do not expressly provide for the votes that will make up a resolution for the extension of the period in which the President can remain on seat while elections are postponed and so it is safe to deduce that in such an instance, a simple majority is required.

From the foregoing, should the forthcoming elections be postponed? Can it be said that the country is at war in a situation where it would not be practicable to hold elections?

If we consider the provisions above,  it is clear from the intentions of the drafters of the Constitution, applying the literal rule of interpretation, 'not practicable
to hold elections' simply refers to a situation where it would be impossible
to hold elections in most parts of the country. It can reasonably be inferred that elections will be postponed if only a considerable part of Nigeria cannot hold elections. 

Moreover, the Electoral Act 2010 as amended gives a broad description on the postponement of elections

 26.-  ( I) Where a date has been appointed for the holding of an election, and there is reason

               to believe that a serious breach of the peace is likely to occur if the  election is proceeded 

               with on that date or it is impossible to conduct the elections as a result of natural disasters

               or other emergencies the Commission may postpone the election and shall in respect of the

               area, or areas concerned, appoint another date for the holding of the postponed election,  

               provided that such reason for the postponement is cogent and verifiable.  

         (2) Where an election is postponed under this Act, on or after the last date for the delivery of  
               nomination papers, and a poll has to be taken between the candidates nominated, the Electoral 
               Officer shall, on a new date being appointed for the election, proceed as at the  

               date appointed were the date for the taking of the poll between the candidates. 

         (3) Where the Commission appoints a substituted date in accordance with subsections (I) and (2) of  
               this section, there shall be no return for the election until polling has taken place in the area or areas
               affected. 

         (4) Notwithstanding the provision of subsection (3) of this section, the Commission may, if satisfied 
               that the result of the election will not be affected by voting in the area or areas in respect of which
               substituted dates have been appointed, direct that a return of the election be made. 

         (5) The decision of the Commission under subsection (4) may be challenged by any of the contestants 
               at a court or tribunal of competent jurisdiction and on such challenge, the decision shall be 
               suspended until the matter is determined.

Thus, the Electoral Commission also has its role to play in determining situations when it would be impracticable to hold elections. It is the duty of the commission to determine if there would be breach of peace in certain areas which would make it impracticable to hold elections. This breach could be as a result of
natural disasters or other emergencies. In the case of Nigeria, the situation in Yobe, Adamawa and Borno may suffice as other emergencies.

There is no doubt that at the moment, the operations of insurgents in Yobe, Adamawa and Borno is really a matter of national security which has attracted several extensions of a state of emergency in those states; but this does not translate to the entirety of the country being affected by war or a situation where it is not practicable to hold elections. 

In fact, there can be a postponement of elections in these affected areas for the time being until a particular time which is to be decided by the Electoral Commission. This is the position under the Electoral Act above.

Ultimately, the Commission has the right to decide whether or not it would postpone elections.

Therefore, in postponing elections, the provisions of the 1999 Constitution of the Federal Republic of Nigeria as amended and the Electoral Act 2010 as amended should be duly considered.

So should this election be postponed? That's left for Nigerians to decide.