Lagos — FORMER Vice President, Dr Alex Ekwueme, yesterday canvassed a shift in date for the presidential election from April 21 to 28 on account of last week's death of erstwhile Ondo State governor and presidential candidate of Alliance for Democracy (AD), Chief Adebayo Adefarati.

Ekwueme, immediate past chairman, Board of Trustees of Peoples Democratic Party (PDP), in a three-page statement he signed and dated March 31, said the new date will be in compliance with provisions of both the Constitution and the Electoral Act 2006.

The issue of postponement of presidential poll has been a subject of interest debate since the demise of Adefarati. The Federal government last week filed a suit in the Federal High Court, Abuja to prevent the Independent National Electoral Commission (INEC) from postponing the election on the premise of Adefarati's death.

All Nigeria Peoples Party (ANPP) also took similar step last Monday. However, AD leadership wrote INEC, calling for the postponement.

Ekwueme in his statement sent from London said "I therefore suggest that the 2007 presidential elections be held on Saturday 28 April, 2007 instead of Saturday 21 April 2007."

He submitted "In the first place, it is trite law that the Constitution is the supreme law (suprema lex) to which all other laws are subject and subservient and therefore where the provision of any law is in conflict with the provision of the Constitution, that provision of the law would, to the extent of its inconsistency with the Constitution be unconstitutional, illegal, null and void. This is unequivocally covered by Section 1(3) of the 1999 Constitution, to wit: "If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void."

"The most important constitutional provision in relation to the presidential elections is, in my view, Section 132(2), which provides that election to the office of president shall be held not earlier than 60 days and not later than 30 days before the date of expiry of the tenure of the incumbent president. This means in the present context, that the presidential poll must hold between March 30 and April 29, 2007. This constitutional provision cannot be varied by an Act of the National Assembly.

"In relation to the death of a presidential candidate, Section 132(3) of the Constitution of the Federal Republic of Nigeria 1999 provides for what will happen when for reasons therein stated, including death, there is only one presidential candidate left in the race, whereupon the Independent National Electoral Commission shall postpone the election to allow for nomination of other presidential candidates.

"It is important to note that Section 132(3) (supra) does not explicitly provide for a situation where a presidential candidate dies and there are more than one presidential candidates still available for the contest, nor does the section explicitly preclude the Commission from postponing an election in any other situation other than those envisaged by the said Section 132(3) of the Constitution.

Now Section 37(1) of the Electoral Act 2006 in the case of the presidential election states that:

"If after the time for delivery of nomination papers and before the commencement of the poll, a nominated candidate dies, the Chief National Electoral Commissioner shall, being satisfied of the fact of the death, countermand the poll in which the deceased candidate was to participate and the Commissioner shall appoint some other convenient date for the election"

"This is precisely the situation that has arisen with the death of His Excellency Adebayo Adefarati. It is perhaps futile to speculate why the National Assembly used the word "shall" which imports mandatory action rather than the word "may" which would have conferred some discretion. Howbeit, the "some other convenient date for the election" must fall within the specific provisions of the 1999 Constitution, that is, it must, for the presidential elections fall within March 30 and April 29, 2007, as already stated ante.

"INEC, like many other government agencies is bound to obey both the law and the Constitution. However, where a law conflicts with the Constitution, the Constitution is to be obeyed and the law regarded as illegal, unconstitutional, null and void. However, where there is no apparent conflict, both the law and the Constitution ought to be obeyed. "My conclusion is that it is possible for the "Chief National Electoral Commissioner to appoint some other convenient date" for the presidential election in obedience to the mandatory provisions of Section 37(1) of the Electoral Act 2006 while at the same time complying with the mandatory provision of Section 132(2) of the 1999 Constitution which requires that the presidential elections be held not earlier than 60 days nor later than 30 days before the date of expiry of the tenure of the incumbent president. Fortunately, Section 37(1) of the Electoral Act 2006 does not suggest what the "other convenient date" should be."

The former vice president restated "to recapitulate, it is suggested that INEC reschedule the presidential election for 28 April 2007 instead of 21 April 2007. It will thereby comply with the provisions of both the Constitution of the Federal Republic of Nigeria 1999 and the Electoral Act 2006. This will foreclose any litigation that may arise if INEC insists on holding the presidential election on 21 April 2007 as is being widely canvassed."