Rescheduled Election Date and the Law – Afe Babalola SAN


On the morning of February 16, 2019, millions of Nigerians who night before had gone to bed looking forward to the opportunity to cast their votes in the Presidential and National Assembly elections awoke to the shocking news that the elections had been postponed by INEC to February 23.

I have used the word “shocking” advisedly as the dates of the elections had been decided and announced by the electoral body several months before and there had been no indication that the dates would be shifted.

Even when electoral materials had reportedly been lost to dubious fire incidents in some states, INEC had restated its commitment to proceed with the elections as planned. Based upon this assurance, millions of Nigerians had prepared earnestly for the elections. From accounts which have since surfaced, some Nigerians had even travelled hundreds of kilometres to the places where they were registered as voters just so that their votes could count in the elections.

Immediate condemnation 

Unsurprisingly, the postponement attracted immediate condemnation from Nigerians. On the part of the major political parties, they continue to accuse each other of complicity in what they both describe as a conspiracy by INEC to deliberately postpone the elections in connivance with the other.

However, aside from the effect of the abrupt postponement on Nigerians, which I will also comment upon, I am concerned by the fact that the reasons adduced for it do not accord with the clear provisions of the law. To be certain, in announcing the postponement, INEC gave the reasons for it to be as follows:

“In preparing for the 2019 general elections, we have come face-to-face with the realities of conducting such an extensive national deployment of men and materials in a developing country like ours…It is therefore not unexpected that such a tremendous national mobilisation of men and materials will encounter operational challenges and we have had our own fair share of such challenges… There have been delays in delivering ballot papers and result sheets for the elections which are not unusual. However, I must emphasize that all the ballot papers and result sheets were ready before the elections despite the very tight legal timeframe for finalising nomination of candidates and dealing with the spate of legal challenges that accompany it… “Unfortunately, in the last week flights within the country have been adversely affected by bad weather. For instance, three days ago, we were unable to deliver materials to some locations due to bad weather.We therefore had to rely on slow-moving long haulage vehicles to locations that can be serviced by air in spite of the fact that we created five zonal airport hubs Abuja (North Central), Port Harcourt (South-South and South East), Kano (North West), Maiduguri and Yale (North East) and Lagos (South West) to facilitate the delivery of electoral logistics.Apart from these logistical challenges, we also faced what may well attempt to sabotage our preparations. In a space of two weeks. We had to deal with serious fire incidents in three of our offices in Isiala Ngwa South Local Government Area of Abia State, Qu‘an Pan Local Government Area of Plateau State and our Anambra State Office at Awka.

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“Faced with these challenges, we initially thought that we only required a maximum of 24 hours to resolve the logistics issues involved and complete our deployment for the election,” he said.

“This would mean shifting the elections to commence on Sunday 17th February, 2019. However, given the restriction of movement during elections, that could affect many voters who worship on Sunday. While the commission is considering the following Monday, 19th February, 2019 as an option, our ICT department advised us that it would require 5-6 days to configure about 180,000 smart card readers earlier programmed to work only on election day, Saturday, 16th February 2019.”

Powers of INEC to postpone election 

Before proceeding to examine the facts relied upon by INEC to postpone the election, it is pertinent to identify the statutory provision which empower INEC to postpone elections.This is to be found in Section 26 of the Electoral Act 2010 (as amended) which provides as follows:

“26(1) 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.” 

The provisions reproduced above are clear and unambiguous. They permit of the postponement of elections where:

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1. There is reason to believe that a serious breach of peace is likely to occur; or

2. It is impossible to conduct the election as a result of natural disasters or other emergency.

In either of the scenarios stated above, the Commission may postpone the election and shall in respect of the area appoint another date for the holding of the election.

Summary reasons adduced for postponement do not qualify
From the statement of the Chairman of INEC the major reason behind the postponement is logistics difficulty. I believe it is fairly easy to state that the reasons stated by INEC and reproduced above cannot be accommodated within either of the two limbs of Section 26(1) of the Electoral Act. In other words, the reasons do not qualify as serious breach of peace or a natural disaster or other emergency.

Election is the lifeblood of democracy. It is the only way for the citizenry to renew and exercise their rights in the governance of their nation and get the most benefit out of democracy. The democratic right of Nigerians to elect their leaders every four years is therefore of paramount importance. This is why the reasons adduced are particularly disheartening. These reasons reveal a failure by INEC to realise the importance of its duties in the democratic process. Furthermore, the last minute postponement of the elections has had untold effect on millions of Nigerians.

Firstly, the Inspector General of Police ordered a restriction of movement within Nigeria from the hours of 6am on the day of election to 6pm. While the validity of this directive is still the subject of debate, it was nonetheless complied with across Nigeria thereby bringing a halt to any sort of economic or social activity.

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Even when news of the postponement eventually trickled in it was too late for any meaningful economic activity to resume. Even on the part of INEC, this postponement has led many to point out that the amount of N242 billion budgeted for INEC and other agencies for the election would have been better spent on critical infrastructure in the country.

Postponement may  bring about voter apathy 

There is also the possibility that this postponement may eventually bring about voter apathy on the rescheduled date. Many who had travelled to vote on the 16th and who are now back at their bases may find it difficult to make new travel plans for the 23rd. Again many may believe the unfortunate rhetoric of the political parties that continue to accuse each other of complicity in the postponement thereby bringing about a feeling that there may really be no need to vote as the results has been predetermined.

Consequent upon this, I do hope that INEC will be alive to its responsibilities in the coming weeks and ensure that the lapses which led to the postponement do not occur again. It is necessary for it to ensure that any election conducted is done in a way that would substantially guarantee that the main objective of a free and fair election is achieved. This is what Nigeria and Nigerians deserve.

Next week, I will examine election of ideal leaders and our electoral process.



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