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ELECTIONS, HANDOVER DATE: SHIFT, CHANGE OF AND LEGAL IMPLICATIONS
By: Isiekwu Benjamin Chukwuemeke . Published October 10th, 2010

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.

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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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