A Legal Perspective To The Holding Of Gubernatorial Elections In Edo And Ondo States And The Covid-19 Pandemic

By L. G Jamala Esq.

Nigeria is a federation of thirty-six states and conducts elections periodically for Federal as well as State political offices. Prior to the facts leading to Prof. Osunbo v Oshiomhole & Ors (2009)4 NWLR (Pt. 1132) 607, Nigeria has since the retune to democracy in 1999 under a Presidential system of government, held uniform elections throughout the federation for the various national and state elective offices albeit, in segments. But a new twist was introduced in the uniformity of gubernatorial elections in Nigeria when the Trial Election Petition Tribunal sitting in Benin, Edo State on March 20^th, 2008 upturned the declaration of the electoral umpire and returned the petitioner (Oshiomhole herein the respondent) winner, a decision the Court of Appeal also affirmed on November 11^th , 2008 thus altering the existing four years uniformity tenure of governors in the federation. Same twist occurred in Ondo state when the Court of Appeal in Agagu & Ors v Mimiko & Ors (2009) 7 NWLR (Pt.1140) 342 also affirmed the findings of the trial Tribunal and returned respondent elected.

By Section 180(1)& (2) of the 1999 Constitution as amended, the tenures of the present Governors of Edo and Ondo states are to expire sometimes in November 12^th 2020 and February 23^rd , 2021 respectively and in exercise of its constitutional powers, INEC has scheduled the Edo governorship election for 19^th October,2020 and 10^th November, 2020 for Ondo governorship election. By the schedule of events as released by the Commission, parties in Edo state are to conduct its primaries between the 2^nd June to the 27^th day of June, 2020 while parties in Ondo state to conduct its primaries from 2^nd to the 25^th day of July, 2020 and political campaigns are expected to commence 21^st  June for Edo state and July 13^th for Ondo state.

Section 25(8) of the of the Elecetoral Act, 2010 as amended, “an election to the office of the Governor of a state shall be held on a date not earlier than 150 days and not later than 30 days before the expiration of the term of office of the last holder of that office.”

 The time within which the Commission can conduct an election is regulated by statutes and although the commission is by section 160 of the Constitution, empowered to formulate rules to regulate its own procedure for the purposes of discharging its functions, such function with regards to date of election, must be within the stipulated timeframe provided by law.

Nigeria like many nations of the world is faced with a health emergency named  Corona Virus otherwise called Covid-19 and has been declared a Pandemic by the World Health Organization and since the report of the index case in Nigeria on February 27^th , 2020, social and economic life has been restricted and in some cases, suspended. While these suspensions persist and the world over continue to search for a possible cure to this pandemic, events or activities such as the elections in Edo and Ondo states are statutorily timed with no or narrowed exceptions and in the wake of this outbreak in Nigeria, INEC is now in a dilemma.

Regulations and guidelines so far released by the Presidential Task Force on Covid-19 in Nigeria even with the gradual easing of the various restrictions, still prohibit any gathering in the excess of 20 persons and encourages what is now called “social distancing”. With such restrictions and more being in place, can it be said that the gubernatorial elections Edo and Ondo states are practically realizable and or is there a need for these elections to be suspended in the interim pending the containment of this pandemic, what is/are the constitutional windows available in circumstances like this?

The Constitution and the Electoral Act did envisage circumstances that may warrant the postponement of an already scheduled election. Under the Electoral Act, section 26(1) provides;

“where a date has been appointed for the holding of an election, and there is reason to believe that a serious breach of the peace is likely to occur if the election is proceeded with on that date or it is impossible to conduct the elections as a result of natural disasters or other emergencies, the Commission may postpone the election and shall in respect of the area, or areas concerned, appoint another date for the holding of the postponed election, provided that such reason for the postponement is cogent and verifiable.”

By section 180(3) 0f the Constitution1999 as amended, “if the Federation is at war in which the territory of Nigeria is physically involved and the President considers that it is not practicable to hold elections, the National Assembly may by resolution extend the period of four years mentioned in subsection (2) of this section from time to time, but no such extension shall exceed a period of six months at any one time.”

The above provisions suggest that an election can be postponed where the following circumstances exists;

1. Where the Federation is at war in which the territory of Nigeria is physically involved.
2. A serious act likely to breach the peace.

The Simple English Wikipedia defined War to mean, a situation or period of fighting between countries or groups of people. It generally involves the use of weapons, a military organization and soldiers.

Though many are of the view and so strongly so that the world all over, Nigeria inclusive, is at war with the emergence of Covid-19, their thinking with all due respect, seem not to be as contemplated by the drafters of the Constitution as  provided for in section180(3). The Constitution envisages a situation of physical combat and not some sort of “bio war” as argued by many and thus, I am of the humble view that section 180(3) of the Constitution may not avail the electoral umpire in the circumstances to warrant a call for the postponement of the said gubernatorial elections.

On serious acts likely to breach the peace, it is also my kind thinking and I hold so that the prevalence of Covid-19 does not fall within the parliamentary intendment as contained in section 26(1) of the Electoral Act, 2010 as amended. This is so because with the gradual easing of the restrictions put in place by the Presidential Task Force on Covid-19 and the “physical distancing” advocacy campaigns, elections can be held in these states notwithstanding the struggle for the containment of the virus in Nigeria. While we await the Independent National Electoral Commission for its regulations and modalities to conducting free, fair and transparent elections in these states, it is advised that a postponement outside the statutory timeframe will be unconstitutional as same can only be done by way of amendment to the relevant provisions of the enabling laws.

L. G Jamala, Esq., Tuduru Ede & Co, Port Harcourt.