IT is a matter for regret that less than a week to the country's general elections, the political climate is still hazy as to whether key actors can contest or not. Of particular concern to Nigerians is the seeming conflict in recent court judgments involving the Vice President, Atiku Abubakar and the Independent National Electoral Commission (INEC). Although our legal system is clear that the decision of a higher court is superior to, and binding on a lower court, there is sufficient ground to proffer that the dispute has no such fine edges.

To avoid recourse to self-help and possible violence therefore, it is necessary for the Supreme Court to which an appeal on one of the cases has been lodged, to hear and determine it expeditiously. The country could have been spared the present anxiety if INEC had performed its duties diligently and transparently. For instance, it had no excuse for waiting till the eleventh hour before barring some candidates from contesting. By its delay in taking decision, the commission created the impression that it has an axe to grind with some candidates. In effect, it casts doubt on its impartiality as an umpire.

Secondly, INEC inadvertently or otherwise encouraged tension in the polity by its decision not just to contest every suit, but also by appealing almost every decision. The ideal thing for INEC, in view of the closeness of the election, is to abide by the decision of the High Courts on the sensitive and controversial aspects of the election.

We believe that INEC has little to lose by complying with simple court declarations. If it is not satisfied with court rulings, it could in future seek appropriate amendments to the various laws and constitutional provisions. That would be better than its present adoption of a posture that undermines its umpire status and threatens the conduct of the elections. This thinking probably underscores the request by the Nigerian Bar Association (NBA) that the commission should drop all its appeals in court, to save the electoral timetable.

The NBA was alarmed at the suggestion that INEC might seek a postponement of the election on the ground that it is swamped by a multitude of litigation in the courts. The association then advised INEC to adhere to judicial pronouncements. It observed in its letter to the commission:

"Many courts, in particular the Court of Appeal, have decided that INEC has failed to understand that as a statutory umpire charged with the conduct of a credible, free and fair election, it has no right of appeal at all in respect of cases pending at the Supreme Court and Court of Appeal.

"The notion that the constitution provides right of appeal generally does not extend to the absurd situation of conferring a right of appeal to a party, in this case INEC, not directly interested in the result of an appeal. For example, how does a battle between two candidates for a seat at the Senate directly affect INEC, or disqualification of a candidate reversed by the court to bother INEC that it enters an appeal? The NBA calls on INEC to freely comply with the decision of Mr. Justice Galadima (Jesse Balowa v INEC) in respect of INEC's right of appeal."

Furthermore, the commission appears to have aggravated the present situation by the inherent contradiction in its actions in pursuing appeals over its powers to disqualify, and the statement of its chairman, Prof. Maurice Iwu that the commission had no intention of assuming powers to disqualify. If INEC had no contention over power to disqualify, why did it pursue the High Court ruling to the Appeal Court?

While the nation awaits the Supreme Court's intervention in the Atiku case and perhaps others in a similar situation, it is pertinent to observe that the issue decided by the Federal High Court seems to affect the Vice President directly. The court specifically ordered INEC to include him in the presidential election. On the contrary, the Appeal Court's verdict was that INEC had powers to disqualify candidates who do not meet the conditions stipulated in the constitution. This power derives from its undisputed power to screen candidates.

However, the central theme in the two cases is section 137 of the 1999 Constitution, which the Appeal Court held to be clear and unambiguous in its provision for disqualification of a candidate aspiring to the office of the president or the vice president. It is the court's view that for INEC to close its eyes to the interaction of the constitutional provisions is for it to abandon its constitutional responsibility of organising and conducting a credible election.

In contrast, Mr. Justice Tijani Abubakar of the Federal High Court did not mince words that "except ordered by the court, section 137 does not confer rights on INEC to stop Atiku from contesting. He added that the power to disqualify is vested in a tribunal or law court. This of course, is one of the issues expected to be resolved by the Supreme Court."

Interestingly too, Mr. Justice Abubakar observed that the report of the investigation of the Economic and Financial Crimes Commission (EFCC) as well as the Administrative Panel's report, both indicting the Vice President had been set aside by a Lagos High Court presided over by Mr. Justice Inumidun Akande. This was in a complaint filed by Otunba Johnson Fasawe.

These reports, according to Mr. Justice Abubakar, cannot be relied upon as the basis for Atiku's disqualification. Curiously, INEC has not expressly stated that it anchors its disqualification of Atiku on those reports, although it implied same.

The Supreme Court will be expected to rule on the wisdom, even propriety of INEC assuming wide powers to disqualify candidates. Where it does, should the commission not be required to state the reason for its action? In the case of Atiku, what would be the effect of Mr. Justice Akande's dismissal of the Administrative Panel's report, on Atiku's disqualification? And why for instance would INEC apply the report to the Vice President while ignoring a similar report on the Oyo State deputy governor?

The controversy surrounding the candidature of Atiku Abubakar has certainly overheated the polity for too long. It is imperative for the Supreme Court, now that it is required to determine a fundamental aspect of the cases, to give accelerated hearing and expeditious determination of it. The judiciary is the last hope of the common man. It should live up to that billing now, by ensuring that nothing stops the elections from holding.

http://www.guardiannewsngr.com/editorial_opinion/article01

Thank you my brother. This really is a food for thought for all concerned Nigerians who love the progress of our nation.