Mr. Falana, a Senior Advocate of Nigeria, stated this in his response to the postponement of the general elections as announced by the electoral agency, INEC, through its chairman, Attahiru Jega.
Mr. Jega on Saturday night said the elections, initially scheduled for February 14 and 28 will now hold on March 28 and April 11. He explained that the postponement was necessitated by the statements of the NSA and military chiefs that they could not provide security in February as the military would be busy with tackling the Boko Haram insurgency.
Mr. Falana, citing constitutional provisions, however, argued that both the military chiefs acted wrongly by making such assertions.
“In a desperate bid to blackmail the INEC to postpone the election the NSA wrote a letter to the INEC to the effect that the armed forces could not provide security for the election because of the operations in the north east region.
“By writing directly to the INEC on the security situation in the north east region the NSA usurped the functions of the National Security Council.”
Mr. Falana added that “by causing the election to be postponed, the NSA and the security chiefs have staged a coup against the Constitution. They are liable to be prosecuted for the grave offence of treason at the appropriate time.”
Read his full statement below:
At a public lecture delivered at the Chartham House in London last month, the National Security Adviser, Colonel Sambo Dasuki disclosed that he had “advised” the Independent National Electoral Commission to postpone the election. The reason adduced then for the unsolicited advice was that the INEC needed time to distribute permanent voters’ cards to all registered voters. As an adviser to the President on national security the NSA has no powers whatsoever to give directives or advice to the INEC. Indeed, there is no statutory nexus between the INEC and the NSA to warrant the purported demand for the postponement of the General Election. To that extent, the NSA acted illegally. The INEC rightly rejected the unwarranted interference from the NSA.
But as soon as the INEC announced that all arrangements had been put in place for the distribution of the remaining permanent voters cards in readiness for the February 14 election the NSA began to sing a different tune. At that juncture, President Goodluck Jonathan convened a meeting of the Council of State. The NSA and the security chiefs were curiously invited to the meeting with a view to convincing the Council members to endorse the postponement of the election. To their utter dismay, they failed to achieve the illegal objective as the Council declined to support the postponement of the election. The Presidency had wanted the advisory body to usurp the constitutional duty of INEC by taking a “decision” on the postponement of the election.
In a desperate bid to blackmail the INEC to postpone the election the NSA wrote a letter to the INEC to the effect that the armed forces could not provide security for the election because of the operations in the north east region. By writing directly to the INEC on the security situation in the north east region the NSA usurped the functions of the National Security Council. That is the only body that has the constitutional duty to “advise the President on matters relating to public security including matters relating to any organization or agency established by law for ensuring the security of the Federation.” The Council which is established under section 153 of the Constitution is comprised of the President, Vice-President, the a Defence Minister, Chief of defence staff, minister of interior, minister of foreign affairs, inspector-General of police and national security adviser.
It is pertinent to point out that the security chiefs are not members of the National Security Council. Neither are they members of the Nigeria Police Council. Therefore, they lack the constitutional power to make any authoritative pronouncement on the security of the nation. Even though the NSA is a member of the National Security Council he cannot usurp the constitutional responsibilities of the body with the connivance of the service chiefs. Since the NSA and the service chiefs acted illegally and mala fide the INEC ought to have rejected their politically motivated request for the postponement of the Election. The reliance on section 25 of the Electoral Act by Professor Attahiru Jega, the INEC chairman is totally misleading. The provision does not support the postponement of a general election in the entire country but “in the area or areas” where there is violence or actual threat of a breakdown of law and order.
Since the reason for the postponement of any election must be “cogent and verifiable” it is crystal clear from the press conference addressed by Professor Jega last night that the INEC did not verify the bogus claim of the NSA and the security chiefs as required by the law. By saying that they would not provide security in aid of civil authorities pursuant to section 217 of the Constitution the security chiefs have committed the offence of mutiny contrary to section 52 of the armed Forces Act. Contrary to the mistaken belief of the INEC leadership the armed forces have no role to play in the electoral process.
Since it is the exclusive constitutional responsibility of the Nigeria Police Force to maintain law and order during elections the INEC should have called off the bluff of the security chiefs. More so, that the Inspector-General of Police had confirmed the readiness of the Police to provide security for the election. Just last week, the federal high court sitting in Sokoto declared illegal and unconstitutional the involvement of soldiers in election duties. That judgment is binding on all authorities and persons in Nigeria.
It is pertinent to point out that the postponement of a General Election throughout the country is provided for under section 135(3) of the Constitution where it is stated that “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.” Since the President could not persuade the National Assembly to pass a resolution for tenure elongation on spurious grounds the service chiefs allowed themselves to be manipulated to subvert the democratic process. Thus, by causing the election to be postponed, the NSA and the security chiefs have staged a coup against the Constitution. They are liable to be prosecuted for the grave offence of treason at the appropriate time.
If the satanic Boko Haram sect is not defeated by the armed forces of the republics of Chad, Cameroon and Niger in the next six weeks, the security chiefs are likely to ask for another postponement of the General Election on the ground that the operations in the north east region have not been successfully concluded. As such extension cannot be accommodated under the Electoral Act and the Constitution, the democratic process may be terminated by the security chiefs to pave way for the much touted INTERIM NATIONAL GOVERNMENT. Since some of the Colonels who played a dominant role in the criminal annulment of the June 12, 1993 presidential election have taken over the security of the country, the democratic forces in Nigeria should be prepared for a long drawn out battle for the restoration of civil rule. In the circumstance, I am compelled to urge Nigerians to beware of the “Ides of March”.
Femi Falana SAN
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