Mike Ozekhome, SAN, argued that: “The electoral Act of 2010 with the 2011 amendment is very clear. It is an act of the National law which is still very valid as an existing law. Section 45(1) of the Act deals with postponement of elections and it makes it clear that elections into the offices of the President and Vice President, Governors and Deputy Governors, and members of the National Assembly- which are already scheduled for February 14, can be postponed by INEC on a date which should not be earlier than 150 days to the expiration of the present term of the occupants of the offices, and not later than 30 days before the expiration. What this means is that we must hold the elections between 30 days and 150 days to the expiration of the tenure of the occupant of that office. That further implies that from February 14 to May 29 when the next government will come into being, must not be earlier than 150 days. It also means that elections could still hold about April 28 for example, which will still be about 30 days to the expiration of the present office of the occupant. In other words, the last date the elections can hold for the presidential and NASS election can only be about April 28. The implication is that elections need not hold compulsorily on February 14 if it is not practicable and feasible to do so from all indications. INEC will still be within the statutory period under sect 25 of the Electoral Act to still hold the elections by making a postponement to maximum of April 28 this year but cannot conduct the election after then. What gives INEC the power to make such postponement can be found in section 26(1) of the Act. It provides that where a date has been appointed for holding of an election and if there is reason to believe that there will be a serious breach of peace which will likely occur, or that it will be impossible to conduct the election on the very date already fixed like February 14, as a result of natural disasters or other emergencies, INEC, may postpone the election. Provided such reasons for the postponement is cogent and verifiable. That word-‘emergencies’-as used in that provision is very large to accommodate. For example, the insurgencies in the North East which have the capacity to cut-off up to three states from being involved in the coming election, which can of course impact negatively on the presidential election since the entire country is the president’s constituency. I can see either PDP or APC, depending on whoever wins the presidential election, going to court to seek for annulment of the election on the ground that a large part of the country was not involved in the election. It is therefore left for INEC to know whether it can conduct the election across the country including in the North East, or whether it will play safe to postpone the election because of insurgency. It can also, in view of the political sensitivity of the entire issue, decide to just go ahead willy-nilly with the election and wait for politicians and their parties to ventilate their grievances later in the court of law-that is why the judiciary is there. However, in terms of whether INEC can postpone the elections, yes it can. As for how long, it can only postpone it up to April 28 and must be ready with very strong cogent and verifiable reasons in line with section 26 of the Electoral Act. It will not be like INEC saying we are postponing the election because of insurgency; it must give statistics to show that such and such Local Government Areas cannot be assessed , as well as prove that such LGAs are so many that it will not give credibility and integrity to the electoral process if the election is allowed to go on”
Sebastian Hon, SAN, argued that: “Under section 26(1) of the Electoral Act, INEC can shift an election, not the general election. If you look at the sub section, there must be an existing vacancy the proposed election is meant to fill or for which INEC is called upon to conduct the said election. Only then can INEC shift election without recourse to any authority. A look at section 135(3) of the constitution shows that the National Assembly, acting upon request by the President, can also shift all the elections in a situation where Nigeria is at war with any other country. It is inherent in that provision that the National Assembly must sit and pass a resolution to extend the tenure of an existing government. To the best of my knowledge, those are the only statutory provisions regulating shifting of election in Nigeria. Therefore, those advising INEC to shift the February election are pushing the electoral body to commit an unconstitutional act. INEC has power to shift a particular election to another date but not the general election. If there is need to shift a general election, the provision under section n135 must be fulfilled. To the best of my knowledge the National Assembly has not met to pass such resolution”.
Professor Itse Sagay SAN: “You definitely cannot postpone it in the sense that it will be held at a date later than 90 days to May 29 and it cannot be held later than 90 days to May 29. For that to happen they have to give a reason and the national Assembly have to meet and pass a motion in support of it. That is the only way elections can effectively be postponed. INEC Fixes the date but it is restricted within a period and that period must not be later than 90 days to expiration of the tenure of the government in office”.
