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Election is the deliberate exercise of the citizenry in
selecting a person or persons by the process casting of
votes on a day legally established to determine the winner
of a political office so entitled for a specified tenure.
This definition is relevant because otherwise, particular
phrases will be interpreted to be ‘election’. Handover is
the
act of relinquishing authority of a political office at the
expiration of a term to a person entitled to takeover the
mandate of the people for another term. In this light, the
process of election ordinarily presupposes ‘handover’ at the
expiration of the tenure of office.
The Independent National Electoral Commission (INEC) has its
role in the determination of dates for the conduct of
General Elections which must accord to the stipulations
provided in the Constitution of the Federal Republic of
Nigeria (the constitution). The National Assembly can
exercise its powers in ensuring that the date for the
conduct of election complies with the law which can be done
by making new laws or amending existing ones.
The current trends in our polity as to the shift in the
proposed dates for election generates a lot of issues which
are sacrosanct. In any event, the elections to be conducted
by INEC would comply with the requirements of the law but
certain novel issues need to be addressed.
First, there is the issue of ‘tenure of office’. The questions
that necessarily arise are:
What is the duration of
the mandate given by the people to the holders of political
offices?
What is effect of the
office holders exceeding the prescribed duration?
With respect to the
first question, it would be correct to assert that the
duration of the mandate given by the people to the holders
of political offices is a term of four years and nothing
more.
As to the second
question, the effect of holding office beyond the four years
term granted is that it amounts to illegality. The rationale
here is that the relevant law for determining the tenure of
office otherwise, duration of term is the Constitution of
the Federal Republic of Nigeria, 1999 which brought them to
office as it constitutes the terms of contract (social
contract or whatever) which governed the
mandate transfer by the people of authority to them.
However, most people are not ready to have the holders of
political offices which are subject to general elections
stay a second past May 29, 2011 in office because of
obvious reasons.
The second issue might be proposed as a remedy to the
issue above is the adoption of an ‘interim government’.
An interim government is a provisional or emergency
government set up when a political void has been created by
the collapse of a very large (usually un-democratic)
government. For all intent and purposes, it’s our opinion
that an interim government is not suitable for a ‘democratic
state’ or ‘state of democracy’. Certain questions which
should be considered are:
Whether the state of our electoral process qualifies to be
described as a ‘state of emergency’.
Whether the State “Nigeria” is under a state of emergency.
How should a proposed interim government be constituted and
what categories of political offices (i.e. those subject to
general elections) should interim government be constituted
to cover?
With regards to the first question here, without mincing
words, it is apposite that the state of our electoral
process is under a state of emergency. This necessitated the
current reforms embarked and still being embarked upon by
the current administration.
As to the second question, our country (“Nigeria”) is not
under any form of or state of emergency because the ‘state
of emergency’ envisaged by and which necessitated the
emergence of interim governments is characterised largely by
the ‘rule of force’. Hence, Nigeria being a ‘state of
democracy’ under the ‘rule of law’ has no need for an
interim government between May 29, 2011 and any period when
the persons with the people’s mandate would take over office
or be handed over to.
Without prejudice to
the position stated as to the question resolved above, there
are problems as to how to constitute an interim government.
Authorities from different climes and in particular times
would make varying propositions. The proposition which some
school of thought propose is that the Chief Justice of
Nigeria should be in charge of the administration of the
interim government as President while his counterparts in
the 36 States of Nigeria and the Federal Capital Territory
should be in charge of their respective domains. However,
this proposition would fail having regards to the question
of the offices which the interim government will be
constituted to cover. Specifically, the Legislative and
Executive arm of Government are occupied by persons mandated
by general elections. It is only the Judicial arm of
Government that persons do not hold office by mode of
general elections. Therefore, if an interim government is
constituted for the administration of the powers of the
Legislative and Executive arm of Government pending the
conclusion of an electoral process, is the Judiciary
sufficient in itself to manage these additional arms of
government? Without prejudice to the Judiciary, it is seised
of a herculean task of giving life by judicial pronouncement
on and interpretation of the various Laws of Nigeria. It
would be a ‘comedy of error’ to impose under the guise of
interim governance or whatsoever, the work of: the
President, 36 States Governors, 109 Senators, 360 Members of
the House of Representatives, Members of the 36 States
Houses of Assembly, Chairperson of the 774 Local
Governments, to mention but the basic ones; on the
Judiciary.
Also, it would breach
the principle of separation of powers as provided for by the
Constitution of the Federal Republic of Nigeria 1999 (or as
Amended) because the powers and duties of each arm of
Government is clearly provided by Sections 4, 5, and 6
respectively for the Legislature, Executive and Judiciary.
Therefore any propositions for interim governance clearly
conflicts with the will of the constitution and would be
against the rule of law.
Isiekwu
Benjamin Chukwuemeke
(Law Graduate of Delta State University
currently at the Nigerian Law School)
benberty@gmail.com
08063437149
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By:
Isiekwu Benjamin Chukwuemeke .
Published
October 10th, 2010
