Nigeria - Last week, the Independent National Electoral Commission (INEC) filed a notice of appeal before the Court of Appeal in Abuja with a motion on notice for stay of execution in a judgement bordering on tenure elongation of five state governors before a Federal High Court sitting in Abuja. In this report, Ahuraka Yusuf Isah examines the legal odds against the electoral body in its bid to regularise irregularities with more irregularities. The appeal instituted by the Independent National Electoral Commission penultimate Moday came before the Court of Appeal, Abuja against the backdrop of a judgement delivered on February 23, 2011 by justice Adamu Bello of the Federal High Court restraining it from conducting governorship elections in Kogi, Adamawa, Sokoto, Bayelsa and Cross River States where re-run elections were previously held following the nullification of their 2007 elections that brought the respective governors of these states to power.

In plain language, INEC is insisting on stay of execution of the trial court judgement pending the determination of the substantive suit before the court of Appeal. If the stay is granted by the appellate court, it will enable the commission to conduct the April 2011governorship elections in those states; otherwise it has to adjust its record to cope with the court judgement.

This is even aside the pronouncement made by Justice Ibrahim Auta of the same Federal HIGH Court that the order of the April 2011 polls is illegal, null and void.

The court said the National Assembly that fixed the order of the said elections acted utravires, contrary to the provisions of the Constitution of the Federation and the Electoral Act 2010. Specifically, the Judge noted that the presidential election should be held last otherwise a bandwagon shall follow the result declared by INEC for the President elect.

INEC must definitely expect more than the duties it has projected to undertake with the court decisions because the court is a necessary stakeholder in the quest for a just, fair and free elections in Nigeria.

However, before the judge handed down the said judgement on the tenure matter, all the political parties including the Peoples Democratic Party (PDP) where all the five governors belong had already secured their candidatture for the forthcoming governorship elections in their various states.

Considering the multiplicity of hardship these candidates may have gone through, including financial commitments before their efforts were rendered a nullity through a court declaration, the situation, according to pundits, could be devastating if not suicidal.

This, perhaps accounted for the reasons why the direct victims of the judgement such as General Buba Marwa (Adamawa), Timi Alaibe (Bayelsa), Isa Galadanchi (Sokoto), Prince Abubakar Audu (Kogi) and a host of others declared, shortly after the judgement was delivered, their intention to oppose it by appealing against it at the appellate court.

It would be recalled that on November 8, 2010 while deciding on the application brought by Mr. Micheal Zira, the National Transformational Party (NTP) governorship aspirant in Adamawa State, Justice Adamu Belo insisted that Zira can not join in the suit as a necessary party because his aspiration is still speculative.

Mr. Zira, the court declared, has no locus standi in the case because he has not become a candidate yet. The applicant had opted to join in the suit because the outcome may, in a way, affect his gubernatorial project.

But Justice Belo argued in his ruling that if Mr. Zira's application is allowed, it would open a floodgate for endless litigation that may produce no good result.

The political parties have had their candidates finally before the said trial court judgement was delivered. The rules of the trial court allow them collectively or any of them to apply before Justice Bello to be joined in the matter for the purpose of appealing against the judgement at the Court of Appeal.

Incidentally, the moment INEC began to spit fire and brim stone, even swearing to God in the high heavens that it will challenge the judgment in a matter described by some legal pundits as inconsequential, these candidates who are the direct victims of the judgement went to sleep, believing that the commission will "by fire, by force" reverse the verdict on their behalf.

In its application for a stay of execution of the judgement of February 23, 2011, INEC had argued that the pronouncement was against its interest since it is charged with the statutory duties and constitutional role of conducting elections to the offices occupied by the five states governors and their counterpart in all the states, in addition to those of the State and National Assemblies as well as the office of the president.

Besides, the commission contended that the five governors were the same persons occupying the same office before and after the re-run elections which some of them won back with "wide margins", amidst protests.

INEC averred that a stay of execution would permit its schedule of governorship elections in those states affected to run freely and fairly with others and would permit the governors and other co-contestants to come to a political level playing ground.

The commission prayed that unless the stay of execution of the judgement is granted, the "res" or the subject matter of the case will definitely be destroyed as time is of the essence.

To give moral justification to its prayers and to persuade the learned trial judge to see reasons with its request, the commission averred that "the local and international community is looking to see that INEC does not fail; that our nation's democracy is sustained such that steps be not taken or restraining orders granted that stultify the conduct of all state-elections due to come in April 2011."

Political observers are of the view that INEC's contention is curious because it was the same INEC that is now sounding holier than Pope that conducted all the rerun elections in the five states "controlled" by the PDP and declared that the same PDP governors "won" with resounding figures or gaps as if opposition had never existed in those states. The commission had rightly observed that protests upon protests trailed the re-run elections due to the figures announced for the PDP governors in these states.

Even if the argument is such that it was during the time of Professor Maurice Iwu, the outcome of re-run election in Delta State which was directly supervised by Professor Attahiru Jega did not show a change of pattern.

At a point in Delta state, it was Great Ogboru of the DPP who was leading handsomely until the PDP swung into action to "stave off the disgrace". The two senatorial re-run elections in Bauchi state which were conducted under the supervision of Professor Jega had gone the same way without considering the watchful eyes of local and international communities.

According to legal experts, a cursory glance at the genesis of the law suit would push one to ask what really does INEC want other than to play to the gallery. A public commentator who wishes not to be mentioned said INEC's suit is suspicious and it could be targeted at some unsavoury actions.

Trouble started when INEC released its election time table for the 2011polls in which it stated that while elections would not hold in Edo, Ondo, Rivers and Anambra states, it will, however, hold in Sokoto, Cross River, Bayelsa, Adamawa and Kogi States where re-run elections were conducted with the same governors that went through the re-run and returned to their seats.

This prompted Governor Ibrahim Idris's counsel, Lateef Fagbemi (SAN) to write and remind the commission that it had earlier informed him through a letter that the governor's tenure began from the day he took the second oath of office.

Fagbemi's letter reads: "It would be recalled that on April 6, 2009, INEC confirmed that the governorship election in Kogi state will not hold in 2011 on the ground that my tenure would not expire until 2012. In the letter, INEC maintained that position was in line with the Supreme Court's interpretation of section 180(2) of the constitution of the Federal Republic of Nigeria, 1999 in the case of Peter Obi and six others.

"Since our client subscribed to the oath of allegiance and oath of office on April 5, 2008 after winning the fresh governorship election conducted by INEC on March 9, 2008, his four year tenure subsists till April 5, 2012."

Ahuraka Yusuf Isah

Leadership/16/03/2011