Incubating the doctrine of necessity in the 2015 elections

Nigerians acknowledge that 2015 elections will not be a tea party. It was against this background that the Independent National Electoral Commission (INEC), in conjunction with the African Union (AU) and the Institute for Democracy and Electoral Assistance (IDEA) organised a workshop on “Mapping Electoral Risks in Nigeria” in 2013.In projecting towards the elections, there […]

Nigerians acknowledge that 2015 elections will not be a tea party. It was against this background that the Independent National Electoral Commission (INEC), in conjunction with the African Union (AU) and the Institute for Democracy and Electoral Assistance (IDEA) organised a workshop on “Mapping Electoral Risks in Nigeria” in 2013.
In projecting towards the elections, there are some fundamentals that must be taken on board.  The first is that a state of emergency is in place in three states of the federation. The second is that other states in the North-East, North-West and North-Central states are under serious threats of insurgency. The third is that there are latent ethnic and religious challenges in other states expressed in farmers and herdsmen clashes, mercenary invasions and the appearance of “unknown gunmen.”  The fourth is that there are serious cases of kidnapping and violent crimes in almost all the states of the federation.  The fifth is serious cases of political desperation in the gale of impeachments and threats of impeachment and the attempts to capture or retain some states by all means.
 In fact, the success or otherwise of the 2015 elections is the least of the worries of the people in the states under emergency rule. In some of the states, majority of the villages are deserted. The villages have been ravaged by deaths and destructions. A large number of the people are refugees in other countries while a substantial number are internally and externally displaced. Some of these are registered voters. No matter the denials and assurances, it is clear that with the heightened level of insurgency, elections will not take place in some states or in some local governments in the states with serious cases of insurgency.
There are also states like Kano, Kaduna, Plateau, Bauchi, Gombe, Niger, the Federal Capital Territory, Abuja, Kogi and Jigawa states that are experiencing low intensity acts of insurgency. The tragedy is that youth corps members that form the bulk of presiding officers for elections are hardly available in some of these states and students of tertiary institutions will think twice before accepting to serve as presiding officers and ad hoc staff.
In Benue State, some communities have their lives disrupted due to the activities of mercenaries, herdsmen and unknown gunmen, and are now living in schools and makeshift huts. The same thing is happening in places like Kaduna, Plateau, Taraba and Katsina states.
Ethnic and communal conflicts, kidnappings, rape, robbery and other violent crimes are also spreading like wild fire in the states of the South-East, South-West and South-South. Some of the elite in these states are internally and externally displaced and can only sneak into their country homes in the dead of the night.
As the 2015 elections draw closer, a more dangerous and invidious threat to the holding of the election and its success is now in the cards. There is heightened fear and insecurity relating to impeachments, threats of impeachments, defections and threats of defections. There is also fear and anxiety relating to the use of the army and the Department of Security Services to secure elections or intimidate voters and or secure advantage for one of the parties in the electoral process.
Three scenarios and possibilities emerge from the security and electoral challenges in the various states of the federation. The first is that Nigeria will surmount its security challenges and hold substantially free and fair elections in all the local governments. This is the wish of most Nigerians.
The second possibility is that elections will hold in most of the states and may not hold in a cluster of states and local governments.
This means that registered and eligible voters in some of the states will not exercise their democratic franchise. The abortion of elections in some of the states and local governments may not have an adverse effect on the elections, and the electoral management body may still make a return for presidential elections if it will not alter the mathematical equation and spread. The reverse may be the case for governorship, national and state assembly elections in those states.
Another scenario is where there is sustained crisis in most of the states before elections. The INEC can utilise section 26(1) of the Electoral Act, 2010 (as amended) to postpone the election, provided that such reason is cogent and verifiable. In this case, the president and the governors must vacate the office if it falls outside the four-year tenure in compliance with sections 135 and 180 of the constitution of the Federal Republic of Nigeria, 1999(as amended), or in respect of the National Assembly at the expiration of a period of four years, commencing from the date of the first sitting of the House in compliance with section 64 of the constitution. This leaves the office for the Chief Justice of Nigeria or the chief judge of the state.
Again, the ugly situation in the country now can mean that Nigeria is at war. And if it is determined that Nigeria is at war, what it means is that technically, section 64(2) of the constitution can be invoked. It states that if the federation is at war and the president considers that it is not practicable to
hold elections, the National Assembly may, by resolution, extend the election but not beyond a period of six months at any time.
This scenario leads us to the doctrine of necessity and fulfils the wish of those canvassing for a six-year single tenure for the president. Whether the doctrine of necessity is utilised or not, it has inbuilt explosive and destructive mechanism that can titillate anti-democratic forces and plunge the country to further crisis.
Our escape is to work for the return of peace and stability in the various states and reengage with the democratic process. The political elite must also lower their rhetoric and acts meant to undermine the democratic process. The democratic process is our collective heritage and must be protected from the fifth columnists, opportunists and anti-democratic forces.
Festus Okoye is a constitutional lawyer and executive director, Human Rights Monitor, and delegate to the National Conference