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04-11-2007, 08:48 PM
Daily Champion (Lagos)
April 11, 2007
Malachy Uzendu
Abuja
Federal High Court yesterday ordered that it will be unconstitutional for the Independent National Electoral Commission (INEC), to postpone the forthcoming general elections on account of the death of the Alliance for Democracy's (AD) presidential candidate, Chief Adebayo Adefarati.
Chief Judge of the court, Justice Rose Ukeje who made the declaration in Abuja also declared as null and void, section 37 (1) of the Electoral Act, 2006, stressing that the provision is inconsistent with the provisions of the 1999 constitution.
Attorney-General of the Federation (AGF) had last week, went to the court through an originating summons taken out against INEC in which government prayed for a declaration that Section 37 (1) of the Electoral Act-2006 was inconsistent with some provisions of the 1999 Constitution and so, should be struck down.
In the court processes, government raised two questions for determination by the court.
They include, "whether section 37 (1) of the Electoral Act which mandatorilly empowers the Chief National Electoral Commissioner or the Resident Electoral Commissioner to counterman any poll in which a nominated candidate dies before the assigned date of election to some other convenient date is not inconsistent with sections 135 (2) and 180 (20 of the Constitution of the Federal Republic of Nigeria 1999.
Also, "whether death of any nominated candidate for any poll is contemplated by the 1999 Constitution as a ground to shift or postpone any such poll.
At the end of adjudication, government prayed the court to declare that "section 37 (1) of the Electoral Act-2006 is inconsistent with sections 132 (20, 135 (2), !78 (2) and 180 (2) of the Constitution of the 1999 Constitution and is therefore null and void to the extent of its inconsistency.
Similarly, government prayed for a declaration that "it will be unconstitutional for INEC to shift or postpone the date of any poll on the grounds of death of any nominated candidate(s) for such a poll and also prayed for a mandatory injunction compelling INEC to keep to the election time table for the 2007 elections to be organized by INEC.
Yesterday, while declaring the judgment of the court, Justice Ukeje declared "I hold firmly that section 37 (1) of the Electoral Act is in clear and brazen conflict with sections 132 (2), 135 (2), 178 (2) and 180 (2) 37 (1) of the 1999 constitution and is and hereby declared unconstitutional".
She also declared that by the judgment, the contending section of the Electoral Act "is hereby struck down under the blue pencil rule of the Supreme Court and hereby declared null and void".
She noted that the death of a candidate was not enough ground nor contemplated by the drafters of the Electoral Act and that even if it were so, that section has been declared void.
"Death or the disqualification of a candidate can only provoke the extension of the time for nomination of candidate by a political party and was never an issue on matters bothering on conduct of election.
"I hereby declare that section 37 (1) of the Electoral Act is hereby struck down.
"It will offend the provisions of he constitution to postpone the date for the election already fixed according to the constitutional provisions because of the death of Chief Adefarati, the Presidential candidate of the Alliance for Democracy (AD), who is one candidate at the election already fixed.
"I hereby order INEC to proceed to conduct the elections in accordance with the dates already fixed for the elections, i.e., April 14 and April 21, 2007, respectively," she declared.
However, in granting the AGF the locus to file the suit, she noted that as the Chief Law Officer of the Federation, Chief Bayo Ojo (SAN) has every right to institute such an action.
She also ruled that it is only in war situations that the date for an election could be postponed, but such must be done only after a proclamation of the National Assembly.
She also noted that after she granted leave for the AD to be served since it was the calamity that befell the party that brought about the suit, the party still did not show up at the court, pointing out that she had ruled that its non-appearance shall not invalidate the outcome of the suit.
April 11, 2007
Malachy Uzendu
Abuja
Federal High Court yesterday ordered that it will be unconstitutional for the Independent National Electoral Commission (INEC), to postpone the forthcoming general elections on account of the death of the Alliance for Democracy's (AD) presidential candidate, Chief Adebayo Adefarati.
Chief Judge of the court, Justice Rose Ukeje who made the declaration in Abuja also declared as null and void, section 37 (1) of the Electoral Act, 2006, stressing that the provision is inconsistent with the provisions of the 1999 constitution.
Attorney-General of the Federation (AGF) had last week, went to the court through an originating summons taken out against INEC in which government prayed for a declaration that Section 37 (1) of the Electoral Act-2006 was inconsistent with some provisions of the 1999 Constitution and so, should be struck down.
In the court processes, government raised two questions for determination by the court.
They include, "whether section 37 (1) of the Electoral Act which mandatorilly empowers the Chief National Electoral Commissioner or the Resident Electoral Commissioner to counterman any poll in which a nominated candidate dies before the assigned date of election to some other convenient date is not inconsistent with sections 135 (2) and 180 (20 of the Constitution of the Federal Republic of Nigeria 1999.
Also, "whether death of any nominated candidate for any poll is contemplated by the 1999 Constitution as a ground to shift or postpone any such poll.
At the end of adjudication, government prayed the court to declare that "section 37 (1) of the Electoral Act-2006 is inconsistent with sections 132 (20, 135 (2), !78 (2) and 180 (2) of the Constitution of the 1999 Constitution and is therefore null and void to the extent of its inconsistency.
Similarly, government prayed for a declaration that "it will be unconstitutional for INEC to shift or postpone the date of any poll on the grounds of death of any nominated candidate(s) for such a poll and also prayed for a mandatory injunction compelling INEC to keep to the election time table for the 2007 elections to be organized by INEC.
Yesterday, while declaring the judgment of the court, Justice Ukeje declared "I hold firmly that section 37 (1) of the Electoral Act is in clear and brazen conflict with sections 132 (2), 135 (2), 178 (2) and 180 (2) 37 (1) of the 1999 constitution and is and hereby declared unconstitutional".
She also declared that by the judgment, the contending section of the Electoral Act "is hereby struck down under the blue pencil rule of the Supreme Court and hereby declared null and void".
She noted that the death of a candidate was not enough ground nor contemplated by the drafters of the Electoral Act and that even if it were so, that section has been declared void.
"Death or the disqualification of a candidate can only provoke the extension of the time for nomination of candidate by a political party and was never an issue on matters bothering on conduct of election.
"I hereby declare that section 37 (1) of the Electoral Act is hereby struck down.
"It will offend the provisions of he constitution to postpone the date for the election already fixed according to the constitutional provisions because of the death of Chief Adefarati, the Presidential candidate of the Alliance for Democracy (AD), who is one candidate at the election already fixed.
"I hereby order INEC to proceed to conduct the elections in accordance with the dates already fixed for the elections, i.e., April 14 and April 21, 2007, respectively," she declared.
However, in granting the AGF the locus to file the suit, she noted that as the Chief Law Officer of the Federation, Chief Bayo Ojo (SAN) has every right to institute such an action.
She also ruled that it is only in war situations that the date for an election could be postponed, but such must be done only after a proclamation of the National Assembly.
She also noted that after she granted leave for the AD to be served since it was the calamity that befell the party that brought about the suit, the party still did not show up at the court, pointing out that she had ruled that its non-appearance shall not invalidate the outcome of the suit.