THE Chairman of the Independent National Electoral Commission, Prof. Maurice Iwu, has been grinning from ear to ear that it is not INEC but the 1999 Constitution that disqualified the Vice-President, Alhaji Atiku Abubakar.

The INEC boss sought refuge under Section 137(1)(i) of the 1999 Constitution which provides thus:

“A person shall not be qualified for election to the office of President if

(i) he has been indicted for embezzlement or fraud by a Judicial Commission of Inquiry or an Administrative Panel of Inquiry or a Tribunal set up under the Tribunals of Inquiry Act, a Tribunals of Inquiry Law or any other law by the federal or state government which indictment has been accepted by the federal or state government.

The section went further down the line to state: “Any appeal against the decision is pending in any court of law in accordance with any law in force in Nigeria, subsection (1) of this section shall not apply during a period beginning from the date when such an appeal is lodged and ending on the date when the appeal is finally determined or as the case may be, the appeal lapses or is abandoned, whichever is earlier.”

The purport of the section is that though a person may be disqualified if indicted by any of the panels enumerated in Section 137(1)(i), such indictment is subject to review by a court of law including a Magistrate Court.

During the pending of such an appeal for review to the court, the indictment will remain in abeyance and unless upheld by the court, the indictment shall not be a ground for disqualification.

In the case of the Vice-President, his co-accused Otunba Oyewole Fasawe did challenge the decision of the administrative panel in the High Court and the decision has been set aside by the court of competent jurisdiction.

Since the administrative panel report has been set aside, can INEC rely on same to disqualify the candidature of Abubakar? The answer is on the negative.

Before the eyes of the law and common sense, that administrative panel report died with the decisions of the High Court of Lagos State which nullified it.

Even without the nullification of the report by the court, and so long as the report is under judicial review by a court established in accordance with any law in force in Nigeria, the disqualification section will remain inoperative.

It will be interesting to know who is actually behind the administrative panel that indicted the Vice-President. The feud between the President and his deputy became public knowledge and the President accused his deputy of certain “crime.”

The President while considering that his deputy needs to be probed, did not deem it necessary to call on the Chief Justice of Nigeria to constitute the probe panel.

Nor did the President consider appointing retired Justices of the Supreme Court or retired Court of Appeal Justices, nor elder statesmen but members of his kitchen cabinet ministers.

Ipso facto, at all material time the President was the administrative panel.

At the end of its “investigation”, the panel, though did not afford the Vice-President opportunity of fair hearing, submitted the report to the Federal Executive Council, headed by the President, the chief accuser.

And the same ministers who “investigated” the Vice-President sat with the President to adopt the report.

It is not only a case of memo judex in causa sua but a travesty of justice that offends the rule of natural justice and right thinking people.

The ministers and the President could not pretend to even go home for one week to study the report but there and then before one could spell John Bull all screamed crucify him – Atiku.

It is, therefore, this questionable report, concocted by President Obasanjo and nullified by the court that Prof. Maurice Iwu, an appointee of the President, is now relying on to disqualify the Vice-President.

Any election where the electoral body takes the mantle of disqualifying candidates presented by their political parties for election is fraudulent on its own.

No other rigging will surpass that and such election ab initio is not free and fair.

The President has therefore combined unto himself the status of executive-legislative-judicial function.

It is further an absurdity to hear the INEC boss counselling the Vice-President to proceed to court to clear himself.

In our criminal jurisprudence, the accused is presumed innocent until proven guilty. The onus of providing the guilt is therefore vested on the accuser/prosecution and it never shifts.

It is not for the Vice-President to proceed to court to clear himself but for INEC to proceed and seek that relief from the court, barring the Vice-President from contesting in the April general election.

This position is in tandem with the position expressed by both the British and American governments and other civilised Western world.

Ekemezie is a Lagos-based lawyer.

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