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OPINION: CONSTITUTIONAL IMPLICATTIONS OF PROLONGED COVIDD-19 ON ONDO AND EDO GUBERNATORIAL ELECTIONS
By: Mogbojuri Kayode & Okesola Tosin
As part of our duties in Olusola Oke (SAN) New Media Team to use our team of experts to safeguard the collective interests of Ondo State people by raising legal arguments ahead of time so that issues never meet us unaware, we Sometimes ago established the fact that election is a process and a matter of law hence, anything that has to do with election must be in strict compliance with all the provisions of the laws that are laid down for the conducts of such election because no matter how well conducted an election might be, once it is conducted in violation of any of the laws guiding its conduct, it stands a risk of been set aside upon its challenge by any person with locus standi before the appropriate judicial body or court.
Also, we will recall that before the outbreak of the covid19 pandemic, the Independent National Electoral Commission had released time table for the conduct of election into offices of Ondo and Edo state Governor as tenure of the incumbents expire by February 24, 2021 and November 12,2020 respectively.
With this time table, all political parties were expected to coordinate their activities as expected by law and in compliance with section 31 of the Electoral Act, submit the names of their respective candidates to INEC.
However, with the outbreak of covid19 pandemic which is an act of God, there are foreseeable circumstances that could pose a lot of constitutional threat to these elections.
In view of this, we are of the view at the New Media Team of Oke (SAN) that we should jointly appraise these situations in accordance with the provisions of the 1999 constitution of Nigeria and the Electoral Acts 2010 as amended so that we can identify our rights and obligations within the armpit of the law in order to safeguard ourselves as it is popularly said; ‘a stich in time save nine’.
By the provision of section 178(1) the constitution appears to have given enormous power to INEC to conduct election to the office of Governor at any time the electoral body likes or feels convenient but subsection two of the same section expressly showed that in exercising the power conferred on INEC by sub section one, the last limit or time frame within which such power can be exercised is thirty days before the expiration of the term of office of the last holder of that office.
Putting into consideration the following sections of the Electoral Act 31(1), 38 and jointly read with section 178(1) of the constitution, one can picture a lot of scenario that might come up as a result of the pandemic in the course of preparing for elections either as the electoral umpire, interested citizen or political stakeholder.
Furthermore, by Section 31(1) of the Electoral Act, every political party must compulsorily submit to INEC the names of its candidates not later than sixty days to the election and by provision of section of 38 which is hereby reproduced: ‘where at the close of the nomination there is no candidate validly nominated, the commission shall extend the time for nomination and fix a new date for the election.’
In the face of the supremacy clause of the constitution section 1(3), section 38 of the Electoral Act can only stand within the provision of the section178 (2) while section 31 of the electoral Act has been watered down by section 38 to the extent that if section 31 is jointly violated by all the political parties by an act of God (like covid19) and not as a result negligence of one of the political parties as played out by APC in Rivers and Zamfara during the last gubernatorial elections, section 38 will override section 31.
With all the arguments raised so far, let us consider the statement recently issued by INEC through Mr. Festus Okoye (National Commissioner and Chairman Information and Voter Education Committee); ‘…….. the implication of the constitutional provision is that the commission can adjust the electoral time table and schedule the activities for Edo and Ondo governorship election within the constitutionally permissible window.
In other words, the commission is permitted to rework the time table but the Edo governorship election must be held and results declared before October 13, 2020 while that of Ondo must be held and results declared before January 25, 2021…..’
By implications, the phrase used by the INEC chieftain suggests that there is a possibility of INEC been confronted with a situation whereby in the course of preparing for the elections, COVID19 may shut out INEC out of the constitutionally permissible window and should that situation arises, the INEC chieftain has not discussed what will be done though in my own opinion, what to do is not within the powers of INEC.
The essence of this paper is to discuss what are the possible events that could crop up in this period of Pandemic and the possible implications of the pandemic pushing out INEC out of the constitutionally permissible window and to do this, let us consider the following hypothesis viz:
1 What if the pandemic in the case of Edo state lingered till middle of September and that of Ondo State lingered till middle of December?
2 To what extent can the pandemic if it lingered affects the political parties from conducting their primaries within sections 31 and 38 of the electoral act?
Ordinarily, no one prays that this pandemic lingers but if what we had is a situation whereby the pandemic lingers till August ending, will the whole of September be enough for the political parties in Edo state to put forward a candidate bearing in mind the fact that primary elections have to be conducted, delegates’ list has to be sorted out, litigations before and after primary elections, injunctions here and there from courts whereby parties may be asked to maintain status quo and restrained from conducting elections like APC experienced in the last gubernatorial election in Rivers ditto Zamfara.
Judging from history, big political parties especially APC and PDP where anyone who clinches the ticket stands the chance of winning the gubernatorial election requires not less than three months between its primary and general election so that all dust generated during the primary election can settle and incase the need arises for substitution, parties can still meet up but as things are, we are seriously concerned that political parties may be choked to the extent of not been able to meet up with the required internal democracy required to elect a candidate and once this happens, aggrieved parties may come up with actions in court nullifying their primary election which may have the effect that such party never complied with sections 31 and 38 of the electoral Act.
While on the contrary, any of the candidates of mushroom parties with no contentious primary may on the authority of what transpired in Bayelsa state become the governor of the state.
Without been pessimistic, we hope that the INEC will reasonably be on the safer side by relying on the thirty days deadline but all political parties are advised to watch their ways as COVID19 may choke them and force them to violate their constitutions in the process of conducting their primaries which may turn out to be their Golgotha.
In case of Edo state, another question that readily comes to mind is that; what if elections cannot take by October deadline, what will be the position of the law bearing in mind the fact that the House of Assembly has a lot of question to answer as to its validity?
The debate is endless and many questions will still come up but all political parties are advised to assembly their legal team for appraisal while the stakeholders in Ondo state should closely monitor Edo state and use it as case study.
At Olusola Oke New Media team, we safeguard the collective interest of the public and advocate good governance by raise legal arguments to arouse public consciousness. Join the volunteers now!
Mogbojuri Kayode and Okesola Tosin write from Igbokoda, Ondo State.