RESCHEDULED ELECTION DATE AND THE LAW

“Generally, it is necessary to ensure that any election conducted is done in a way that would substantially ensure that the main objective of a free and fair election is achieved”.

In this edition, I intend to consider two issues namely:

• Whether Nigeria is in a state of war and
• Whether or not election can be held in some parts of Nigeria

WHAT QUALIFIES AS STATE OF WAR?

War is an organized and often prolonged conflict generally characterized by extreme violence, social disruption and an attempt at economic destruction. War is a phenomenon which occurs only between political communities. Certain political pressure groups like terrorist organization might also be considered political communities in that they are associations of people with a political purpose and indeed, many of them aspire to statehood or to influence the development of statehood in certain lands. In this respect it is worthy of note that Boko Haram now states that its cardinal objective is to establish an Islamic State (Caliphate) in some parts of Nigeria. It can also be defined as a state of hostility, conflict or antagonism.

War is not only an act, but a state or condition, for nations are said to be at war not only when their armies are engaged, so as to be in the very act of contention but also when they have any matter of controversy or dispute subsisting between them which they are determined to decide by the use of force and have declared publicly, or by their act, their determination so to decide it.

Flowing from the above definitions of war, Nigeria as a nation can be said to be at war given the state of insecurity in the North-Eastern region which is presently being taken over by Boko Haram insurgency; a place where peace and unity cannot presently be found; a place where Boko Haram believes that the best way to handle issues/challenges is through violence and use arms leading to the destruction of lives and property and the displacement of thousands of Nigerians.

CAN ELECTIONS HOLD AT A TIME OF WAR?

It is settled that in Nigeria, every qualified adult citizen has a right to vote as Nigeria is a democratic state. The right to vote is generally perceived as inextricably intertwined with the concept of democracy. According to Venkatarangaiya:

“If popular control of government through the mechanism of elections is the essence of democracy, it follows that the control should be by all people and not by any few among them. Unless it can be proved that those who are excluded are either unfit or incompetent to exercise the vote…the basis of democracy is the principle of equality of all citizens and that to give the right to vote to some and to deny it to other is in conflict with this principle and is therefore unjust.”

In Westberry v Sanders, the court testified to the fundamental character of the right to vote when it said:

“No right is more precious in a free country than that of having a choice in the election of those who make the laws under which, as good citizens, they must live. Other rights even the most basic are illusory if the right to vote is undermined.”

Election is the lifeblood of democracy. It is the only way for the citizenry to renew and exercise their rights in the governance of their nation and get the most benefit out of democracy. The democratic right of Nigerians to elect their leaders every four years is therefore of paramount importance.

However with the increased spate of the insurgency it is obvious that a lot of indigenes of the affected states will not be able to partake in the forthcoming elections. INEC began the Permanent Voter Card distribution in Borno state and from the initial 12 Local Governments to which the said PVCs ought to be distributed; only two will now get it. The remaining have reportedly been seized by the insurgents. Reports also say that 13 LGAs in Yobe State were also allegedly under the Islamists control. Adamawa State also has its own share of this development.  It is therefore apparent that unless and until it is reasonably safe for people to come out and vote, no election ought to be held in those states.

From all indications, a lot of Nigerians who are living in the affected states might be deprived of their right to vote in the forthcoming elections save the elections are postponed until the authorities are satisfied that it is safe to conduct election there.

The question now is how this provision of the constitution can be realized when certain states in the federation are at war and it would appear impossible or difficult for the indigenes and residents of the said states to exercise their rights of voting. In states like Borno, Adamawa, Yobe? Even if elections are held only in certain areas of the said states it is doubtful whether such elections would amount to elections in the whole of the state to satisfy the requirement of Section 134(2)(b). Put directly, would elections only in two local governments in Borno State be taken to have been election in the whole of Borno State? As the obvious answer would be in the negative how will any candidate satisfy the “not less than one quarter of the votes cast at the election in each of at least two-thirds of all the states” requirement?

• In the light of this, recourse must be had to the provisions of Section 135(3) of the 1999 constitution which provides that:

“if the federation is at war in which the territory of Nigeria is physically involved and the President considers it not practicable to hold elections, the national assembly may by resolution extend the period of four years mentioned in section135(2) and  64(1)  from time to time but not beyond a period of six months at any one time.”

Generally, it is necessary to ensure that any election conducted is done in a way that would substantially ensure that the main objective of a free and fair election is achieved.

AARE AFE BABALOLA, OFR, CON, SAN, LL.D, D.Litt