How to purge our electoral process in Nigeria of the structural flaws that have prevented it from achieving credibility is a great concern in the polity today. From 1959 to 2007, general elections in Nigeria have been characterized by malpractices and controversies. For this reason, early in his administration, President Umar Yar’Adua set up the Electoral Reform Committee (ERC) led by retired Chief Justice of Nigeria, Muhammed Uwais. The ERC has been going round the country in the last few weeks collecting ideas on the way forward.
Through it’s public sittings, the ERC seeks to pool ideas and strategies aimed at breaking the vicious cycle of electoral disorder, to produce an electoral framework that will result in elections that are free of violence, bigotry, rigging, corruption and all other vices that are stultifying the growth of our nascent democracy, and possibly, to initiate a better and more profound legislation that will fast-track electoral best practices in our country. The envisioned reforms are targeted at strengthening our institutional capacity for conducting transparent elections in order to restore integrity to the process.
In this onerous duty, the Committee will need to identify the fundamental defects in the existing electoral legislations which provide the axis on which the vicious cycle of electoral delinquency revolves. The first, for me, is that electoral offenders are not punished in this country. Although the Electoral Act 2006 makes ample provisions for punishment of electoral offenders in its various parts and particularly in Part VIII Section 124-138, our experience in practice is that the civil dimension of electoral petitions are emphasized to the diminution of the criminal aspects. Incidentally, the root of this problem is embedded in the Act. Whereas the Electoral Act 2006 in its First Schedule provides rules of procedure for election petitions in their civil nature, the criminal aspect without which the civil may not have arisen in the first place is left open ended. For one, the Act vests all prosecutorial powers under the Act on INEC by specifying in S.158 (2) that “prosecution under this Act shall be undertaken by legal officers of the Commission or any legal practitioner appointed by it”. For another, the Act vests the critical duty of determining whether to and who should be arraigned for electoral offences on INEC and the Tribunals and makes prosecution of electoral offenders mandatory by providing in Part X, S.157 that INEC “shall consider any recommendation made to it by a tribunal with respect to the prosecution by it of any person for an offense disclosed in an election petition.” And, who makes this recommendation? By virtue of the 6th schedule of the 1999 Constitution which expressly provides that the chairman and members of Election Tribunals shall be serving judges, it is their lordships that will recommend to INEC! Does INEC act on the recommendation? The fact is that they do not! And the reason is obvious.
By it’s impractical provisions, the Electoral Act 2006 creates a lacuna, a window for electoral offenders to evade justice. As if to provide more cover for perpetrators of electoral infractions, the Act goes further in S.41(1) (2) (3) and (4) to stipulate that a certificate of indemnity be provided to any witness at an Election Petition Tribunal seen to have exhibited a level of honesty. The purpose of this immunity is to prevent the testimony of such witness from being used in evidence against him or her in all criminal prosecutions for electoral offences except perjury in respect of the testimony. Such a certificate acts as ground for the court to stay proceeding against such a person or even to award costs to him!
But there is an even more curious twist to the hypothetical provisions in the Act: many of the technical offences listed as electoral offences under the Act can only be committed by staff of INEC or persons engaged as officials by the commission for the purpose of elections. S.130 (1) – (6) contain offences in this category: breach of official duty, failure to report promptly at polling stations on election day without lawful excuse, failure to discharge his lawful duties at his polling station, announcement and publication of election result knowing same to be false or at variance with the signed certificate of return, delivery of false certificate of return, and release of false results to the news media. Thus, although S. 144(2) of the Act allows a petitioner to complain about the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election in his official capacity as an agent of the commission and provides that such a person may be joined in the election petition in his or her official capacity as a necessary party, what happens where the petition succeeds and the conduct of the officer or agent provides sufficient grounds for his or her prosecution for electoral offences?
In such a case, what we have under the Electoral Act 2006 given it’s provision in S.158 (2) earlier cited is a situation where the indictor and the indictee are one and the same person: INEC! Can INEC honestly prosecute INEC? That is unlikely to happen; more so, because the capacity of the legal officer of INEC to prosecute electoral offenders is limited in practice. Generally, where a statute specifies a special prosecutor as the Electoral Act 2006 has done, it is only the Attorney-General of the Federation (AGF) that can validly institute criminal proceeding in respect of a violation of the provisions of such statute because the authority of the AGF “to institute, take over and continue, or discontinue criminal proceedings” derives from the constitution. A legal officer in INEC, therefore, cannot institute criminal proceedings without the express authority of the AGF. And the AGF is too busy trying to take over EFCC cases to bother about electoral offences. Do you still wonder why electoral offenders are never prosecuted?
By making provisions that make it hard to bring electoral offenders to book, the Act perpetuates electoral misconduct because transgressions thrive whenever or wherever offenders are allowed to go unpunished. Any meaningful electoral reform, therefore, should accommodate the establishment of an Electoral Offences Tribunal and, if necessary, the establishment of an Electoral Offences Commission independent of INEC with powers to monitor, investigate and to prosecute electoral offenders. In any case, critical review of the Electoral Act is required to expunge the sections that hamstring the procedure for prosecuting offenders as well as those sections that reward offenders with statutory protection and unearned immunity. Unless the Act enables us to go beyond the essential but purely civil matter of restitution of stolen mandates to sanction monitoring and punishment of offenders, the cycle of electoral disorder and impunity may never be broken.
