Many politicians vying for positions resort to a number of malpractices such as enlisting the services of thugs to intimidate and harass their opponents, compromising electoral officials wherever they can
By Ikechukwu Onodi
Introductions
Democracy as a system of government was birthed in the ancient Greek city of Athens over 3,000 years ago. However, modern democracy is associated with the United States of America, particularly with Abraham Lincoln who in his famous Gettysburg speech on 19th November, 1863 had characteristically defined democracy in the following immutable words: – the government of the people, by the people and for the people.
Those early days, all the adults in the city of Athens used to meet at city squares to consider and take decisions on matters affecting their communal life. With time and growth in population however, it became practically impossible for people to converge for such considerations and decisions. Thus the need for such considerations and decisions to be made by the people by their chosen representatives became imperative.
The essence of this is that democracy is government by persons chosen by the people to govern and be accountable to the people who have chosen them. Thus, election being the process by which the people choose their government is a basic ingredient of democracy.
Although the structure of democratic government may vary with different national cum state circumstances, there are other essential ingredients of every genuine democracy.
They include accountability, freedom of speech and association, the rule of law, the independence of the judiciary, respect for human rights and separation of powers.
It is again crucial to highlight from the onset the importance of government. It is the opinion of the present author that next to divine power is the power of civil authorities, that is, the government. The import of this power accounts for the quest for the control of the machinery of government by people no matter how comfortable they have become given their wealth and intellectual prowess.
Elections in Nigeria in contemporary time
As is well known, Nigeria has had an unhappy history of elections. Our elections have in the past been marred by violence and different forms of malpractices. If it is not snatching of ballot boxes from the polling units to safe havens where they are stuffed with already thumb-printed ballot papers for a favoured political party candidates; it will be vote buying or different forms of intimidation, frustration and or harassment of supporters of opposition political parties.
There are many reasons for this; reasons that I believe should be addressed if we are to make our national elections more credible and more violence-free. First, we must discourage the do-or-die approach to elections by reducing the financial and material benefits that come from winning elections.
At present, the rewards of winning elections at the three tiers of the country’s government are such as to induce the contestants to want to stop at nothing to win. For example, Nigeria’s parliamentary representatives are among the highest remunerated in both developing and developed countries of the world.
Secondly, many politicians vying for positions resort to a number of malpractices such as enlisting the services of thugs to intimidate and harass their opponents, compromising electoral officials wherever they can.
Again, we must also address the issue of the cost of elections. The role of money is responsible for many deficiencies in our elections.
There should be a limit, to be rigidly monitored and enforced, to what political parties can demand as registration fees from their prospective candidates, as well as to what the candidates themselves can spend on their campaigns. A situation whereby a particular political party sold her forms to presidential aspirants at prices far above the legitimate remuneration of Nigerias President for the whole term of four years, portends nothing other than corruption. It also shuts such electoral office out of the reach of people who are not wealthy.
All thanks to the legislature for addressing the question of elected representatives defecting from the political parties on the platform of which they campaigned and won the elections to other political parties. The same prohibition should be extended to governors and the president as well.
There was a significant improvement in general elections of 2015 courtesy of former President Goodluck Ebele Jonathan, who made and pursued his declared determination to give the country free, fair and credible elections. Even though he was a candidate for the election, he also declared and lived up to the mantra that his ambition was not worth a jut of the blood of any Nigerian. The Independent National Electoral Commission, INEC under Prof. Attahiru Jega also played a major role in seeing to the success of the elections.
The evolving democratic culture was further strengthened by the statesmanship of the sitting President Goodluck Ebele Jonathan in telephoning to congratulate General, Muhammadu Buhari even before the final results of the election were announced by INEC.
By that singular act, President Jonathan doused the prevailing tension in the country, and proved wrong the doomsayers who had predicted chaos and even a break-up of Nigeria after the 2015 elections.
The gains recorded and the achievements of the 2015 general elections have however, been eroded and lost in the 2023 elections. The elections of 2023 can safely be said to be the worst ever conducted in Nigeria since even during the colonial days. Starting from the impunity of certain candidates who shunned media chats and debates because they had concluded rigging plans, which, of course, eventually became manifest; to intimidation, suppression and harassment of opponents by those in power. The last straw that broke the camels back was the flagrant violation of the Electoral Act and guidelines by the electoral umpire, INEC. The assurances by INEC that results from polling units would be scanned from the Form EC8A and posted with the aid of the Bimodal Voter Accreditation System, BVAS to the INEC result viewing (IRev) portal where the public could view the results in real time, was not adhered to. Then clear evidences of INEC compromise of the elections. Professor Nnenna Nnannaya Oti, Vice Chancellor of Federal University of Technology, Owerri (FUTO) and Returning Officer of the Abia State governorship election revealed how they tried to intimidate, harass and bribe her by the powers that be to compromise the results of the election. But she stood her ground against such.
PART I: THE ELECTORAL UMPIRE
The electoral body should be run by men and women of high ethical standard, proven integrity and who will be fair to all the contending parties and politicians of different ideological leanings without affection or ill will. They should be knowledgeable in the tenets of democracy, rule of law and detailed rules guiding elections. They should be above board and free from all likelihood of bias.
Independence and neutrality of the electoral body
It is a trite principle of natural justice that a man cannot be a judge in his own cause. This is better captured in the Latin maxim nemo judex in causa sua. The functions of the electoral body, which presently resides with the Independent National Electoral Commission (INEC) as the body that supervises the elections of the principal officers in charge of two out of the three organs of government, namely, the legislature and the executive, is enormous. As such the members of the Independent National Electoral Commission (INEC) should be selected in such a way as to ensure their independence and impartiality.
A situation where the President of the federal Republic of Nigeria appoints one who he pleases as the Chairman, federal commissioner or other principal officer of INEC leaves much room for compromise especially if the appointing President will later be a candidate for election to an office. It does not create room for the removal of all likelihood of bias. This is so because as postulated by the principle of nemo judex in causa sua, that the electoral umpire was in fact, unbiased is not the point. Every room of a likelihood of bias has to be removed.
The idea here is not to divest the President with the powers to appoint the Chairman and federal commissioners and other principal officers of the INEC. That is not the point. The point being made is that the President should not just wake up and appoint any Tom, Dick or Harry as a principal officer of INEC as obtains currently.
Electoral officers should be devoid of real likelihood of bias
Electoral officers should be men and women of proven integrity and who will be fair to all manner of persons without affection or ill will. They should be free from all likelihood of bias. Otherwise, they should not be appointed.
By the Blacks Law Dictionary, 8th Edition, page 171, bias means inclination, prejudice or predilection. It may be actual, implied or judicial. This concept of bias has also been judicially defined and explained. According to Ayoola, JSC in Kenon v. Tekam (2001) 14 NWLR (Pt. 732) 12 at 41 42, bias is opinion or feeling in favour of one side in a dispute or argument resulting in the likelihood that the judge so influenced will be unable to hold an even scale. In Womiloju v. Anibire (2010) All FWLR (Pt. 529) 1002 at 1013 1014, Muhammed, JSC explained the concept of bias as follows: Bias generally is that instinct which causes the mind to incline toward a particular subject or course. When a judge appears to give more favour or consideration to one of the parties before him either in his utterances, contention or action which is capable of perverting the cause of justice or where fair hearing cannot be said to take place, all in favour of the party he supports covertly or overtly, then an allegation of bias against him can be grounded. That of course is a judicial bias.
Bias has also been defined in Denge v. Ndakwoji (1992) 1 NWLR (Pt. 216) 221 at 233 234 per Ndoma-Egba, JCA to mean;
The term real likelihood of bias may not be capable of exact definition since circumstances giving rise to it may vary from case to case, but it must mean at least a substantial possibility of bias. This may arise because of personal attitudes and relationships such as personal hostility, personal friendship, family relationship, employer relationship, partisan in relation to the issues at stake and a whole range host of other circumstance of a real likelihood of bias may be drawn.. Bias or likelihood of it covers a wide range of circumstances. It may arise if a judge either explicitly or implicitly indicates partisanship in a cause or matter before him by expressing hostile opinion favourable to one party in the controversy he has a duty to settle or has unduly earlier expressed his views about the merits or demerits of a case committed to him for fair hearing and determination. This may amount to the prejudgment of the matter rendering the judge inadequate in the proving minds and eyes of the public, to proceed in hearing and determination on the controversy between the parties concerned on the merits. Per BULKACHUWA, J.C.A. (Pp.27-28, Paras.C-B)
Bias in its ordinary meaning is opinion or feeling in favour of one side in a dispute or argument resulting in the likelihood that the Judge so influenced will be unable to hold an even scale. Per Ayoola, J.S.C. (P. 29, paras. C-D).
In the concept of elections where electoral proceedings, be it the facilitation of campaigns, voting proper, handling of the collation and counting of votes, and declaration of winner have been conducted in which the authority of the electoral umpire has not fairly been exercised in consistence with the fundamental principles of fairness embraced within the conception of the process of law then the umpire may rightly be accused of bias.
A call for a proper institutionalization of INEC
The Independent National Electoral Commission (INEC) should be institutionalized and strengthened in such a manner that it should autochthonously throw up candidates for appointment into her principal offices including the Office of the Chairman, Federal Commissioners, Resident Electoral Commissioners, and so on.
There should be an Electoral Institute that will groom career personnel and electoral officers for manning the various offices of the electoral commission. There should be a Federal Electoral Commission that will be responsible for recommending the most senior among the Federal Commissioners to the President for appointment as the Chairman of the Independent National Electoral Commission (INEC). The Federal Electoral Commission will also be responsible for recommending to the President for appointment the Federal Commissioners and the Resident Electoral Commissioner of the INEC for the Federal Capital Territory (FCT). The members of the Federal Electoral Commission should be constituted from amongst retired judges, retired senior civil and public servants and professors of law, political science and other relevant disciplines.
There should also be a State Electoral Commission for each of the states of the federation. The members, as that of the Federal Electoral Commission, should also be drawn from amongst retired judges, retired senior civil and public servants and professors of law, political science and other relevant disciplines. It shall be the responsibility of the State Electoral Commission to advise and recommend to the Governor a candidate for appointment as the Resident Electoral Commissioner of the state concerned. The recommendation must be from amongst the career electoral officers in the respective state. In essence, something similar to what currently obtains in the judiciary is being recommended here.
PART II: RESPECT FOR THE PEOPLES MANDATE
On no account should a candidate whose election is being challenged be sworn into office
It negates all known principles of fairness for a person whose election is being challenged in the tribunal or law court to be sworn into office. It is a dirty slap on the individual faces of the people who have decided with their ballot power to elect one of their own only for another person, for whatever reason, to be sworn into the same office. It is a travesty of justice. And it thwarts the whole essence of elections.
And this was not the intention at the birth of the present Fourth Republic. I recall listening to General Abdulsalam Abubakar during a media chat before the onset of the Republic. He was asked the reason behind the choice of May 29, 1999 for handover of power to the civilian administrators. Before then, May 29 was insignificant in our political cum democratic journey. He responded by saying that he got advice fromthe then Chief Justice of Nigeria, The Honourable Justice, Mohammed Lawal Uwais CJN. He said that the CJN told him that three months was the period needed to determine electoral petitions after the elections in February. That was what informed the choice of May 29 for handover. Thus all electoral petitions and subsequent appeals were meant to be finally determined before successful candidates were to be sworn into offices.
Legislative absurdity
There is no doubt that the Electoral Act of 2022 is a major improvement in our electoral journey as a state, especially since the fourth Republic. However, the aspect of speedy resolution of disputes arising from elections is a snag in that piece of legislation.
By Section 132 subsection 8 of the Electoral Act, 2022:
The Tribunal shall deliver a judgment in writing within 180 days from the date of the filing of the petition. Subsection 9 gives the appellate courts 60 days to hear and dispose of appeals from the Tribunals.
So for a dispute that will commence at the tribunals and terminate at the Supreme Court, as in the case of gubernatorial elections, a period of 300 days, equivalent of ten months is needed to dispose of such disputes. This accounts for the impunity of the electoral officers as we have witnessed in recent time, especially during the just concluded 2023 general elections. It is further compounded by the provision that even when the election is nullified by the tribunal, the person who had been declared elected by the INEC will remain in office till the final decision on the matter provided he has filed an appeal within the stipulated period.
It accounts for impunity of electoral officers
Section 138 of the Electoral Act, 2022 accounts for the impunity presently seen among the officers of the INEC in their handling of the Nigerian elections in recent times. It provides are follows:
(1) Where the election is nullified by the Court and notice of appeal against the decision is given within the stipulated period for appeal, the elected candidate shall, notwithstanding the contrary decision of the Court, remain in office and enjoy all the benefits that accrued to the office pending the determination of the appeal and shall not be sanctioned for the benefits derived while in office.
(2) If the Election Tribunal or the Court, as the case maybe, determines that a candidate returned as elected was not validly elected, the candidate returned as elected shall, notwithstanding the contrary decision of the Election Tribunal or the Court, remain in office pending the expiration of the period of 21 days within which an appeal may be brought.
It is these provisions that embolden electoral officers to truncate the will of the people to declare whomever they like as winners of the elections not minding the mandate of the electorate. They do this knowing that whomever they return as winner eventually be sworn in and continue to enjoy the benefits of offices they never earned. Politicians brag about with the cliché, go to court, knowing that while in court, which is unfortunately up to Supreme Court for all elections, the de facto INEC declared officer will remain in office. This is a grave injustice and theft of the peoples mandate.
So in effect, the import of the provisions of Section 138 of the Electoral Act, 2022 is to breed rascality among politicians and lead to corruption of electoral officials.
So when you hear the cliché, Go to Court, sections 8 and 138 of the 2022 Electoral Act are responsible for it. What that cliché means includes, Even if you eventually win in court, we would have spent some months in power with our stolen mandate. Nothing can be more bizarre daring than that.
Leads to off season elections which take a toll on the economy, security and social life
It started with Mr. Peter Obi as governor of Anambra State. INEC had with impunity declared Dr. Chris Ngige as governor elect of Anambra State following the general election of April, 2003. Consequently, Dr. Ngige was sworn in as governor on 29th May, 2003. He continued to hold sway as the de facto governor of Anambra State till March 2006 when the Supreme decided that he was not validly elected governor and that it was Mr. Peter Obi that ought to have been returned instead. Mr. Peter Obi was thus sworn in as governor of the state on 17th March, 2006, that was after a usurpation by Dr. Ngige aided by INEC and the Peoples Democratic Party (PDP) for nearly three years. It did not stop there. After barely a year in office, another general election was conducted by the INEC for office of governor of Anambra State and Dr. Andy Uba, winner of the election was subsequently sworn into office. But Mr. Obi would not have it. He went back to the court for an interpretation of his tenure, and he succeeded. That gave birth to off season elections, mainly of governors of some states in Nigeria. As at the last count, eight states in the country are experiencing off-season elections of their respective governors. More are likely to join.
While Mr. Peter should be commended for always standing up for justice and his tenacity of purpose in reclaiming his mandate, the impact of off-season gubernatorial elections are far reaching. Elections in Nigeria are very expensive and cause so much suffocation on the social and economic lives of the populace. The elections are often militarized and a disproportionate size of the military and paramilitary personnel is usually deployed for such elections. The entire state is often cordoned off by the security agencies thereby disturbing both commercial and social lives not only of the people of the areas concerned but even beyond.
Conclusions
I believe it is now settled that we cannot continue like this. Something drastic and urgent too has to be done. INEC should be institutionalized along the line suggested above. It should be able to produce unfettered candidates for appointment to its top offices.
The Electoral Act should be further amended. No election petition should go beyond two arbitral bodies, the tribunal and an appellate court. The presidential election petitions should be as it presently is while all other election petitions should commence at the tribunal and terminate at the Court of Appeal. The tribunals in any case should deliver judgment by 90 days of filing the petition while the appellate courts should deliver judgment within 30 days of the decision of the tribunal.
Finally the elections should be held early enough to accommodate the judicial activities before a successful candidate is sworn into office. It is hoped that when the foregoing suggestions are implemented, the current absurdities created by our extant legal provisions in our electoral jurisprudence will be solved.
Ikechukwu Onodi, Esq is a private legal practitioner based in Lagos.
ikonodi@yahoo.com (08033329449)