Vote buying and ballot snatching, among others, are offences under the Electoral Act. Yet, not many offenders have been brought to book. There are fears that the same scenario may play out in the forthcoming elections. Why? Is the law weak? JOSEPH JIBUEZE sought lawyers’ views.
It is 31 days to the February 16 general election. Will it be marred by violations, or will the polls be free, fair and credible?
Elections seem to look like do or die in Nigeria. This explains the massive deployment of policemen, soldiers and other security agents to guarantee their safe conduct.
Yet, violations of the Electoral Act have persisted. In virtually every election, there have been incidents of ballot box snatching, voter inducement and other forms of violations of the electoral law.
However, not many of the perpetrators were ever brought to book. Arrests were made, but not much else was heard about such cases afterwards.
Elections lie at the heart of representative democracy and their success or otherwise is central to the success or failure of democracy.
The benefits of winning elections, the disadvantages of losing them, and the winner-takes-all mentality often trigger desperate measures by political actors and their agents.
Over the past few years, large-scale violations have been reported during elections, with the courts reversing several of such exercises.
The situation underscores the need for effective prosecution of offenders to act as deterrent.
Why prosecution of electoral offenders is weak
According to Independent National Electoral Commission (INEC) Chairman, Prof Mahmood Yakubu, the commission lacks the capacity to effectively prosecute electoral offences.
Yakubu, who spoke at the last Nigerian Bar Association (NBA) Criminal Justice Reform conference, said: “In many parts of the democratic world, including Nigeria, the Electoral Management Body is saddled with the additional duty of prosecuting election offences.
“This means that the electoral umpire must be truly independent in both financial and administrative capacity in order to effectively and efficiently execute the functions.
“This is surely not applicable to Nigeria where INEC is still much dependent on the executive arm of government for its budgetary allocations.
“In order to effectively investigate and prosecute electoral offences, there is the need for capacity building, adequate funding and manpower. These are presently challenges being faced by INEC.”
Another hurdle against the effective prosecution of electoral offences, according to him, is what he called “the abject inefficiency of the criminal investigation machinery in Nigeria”.
Electoral offences
The Electoral Act 2010 (as amended) devotes the entire Part VII of Sections 117-132 to specific acts and or omissions, which it criminalises and punishes as election offences.
Other provisions in the same Act also criminalise certain acts as electoral offences. These include offences in respect of registration of voters and the compilation of voters’ register, offences against nomination of candidates, offences relating to campaign financing, election day offences and post-election offences.
Under Section 12(2), registering in more than one registration centre or registering more than once in the same registration centre attracts a fine not exceeding N100, 000 or an imprisonment term not exceeding one year or both.
Under Section 16 (2), holding more than one valid voters’ card attracts a fine not exceeding N100, 000.00 or an imprisonment term not exceeding one year or both.
Section 23 (a) & (b) criminalise unlawful possession, selling or offering to sell, buying or offering to buy voters cards, which attracts a fine of N500, 000 or imprisonment not exceeding two years or both.
Under Section 31, submitting a name of a candidate, who is not qualified for election and any candidate who willfully presents false documents is punishable by a maximum fine of N500,000.
Under Section 91, any candidate, who exceeds the limitation on election expenses, is also liable to fines of between N1million to N100,000 from presidential to councillorship candidates.
On thuggery, Section 81 provides that employing any individual for the purpose of hindering the electoral process in any way contrary to Section 227 of the 1999 Constitution attracts a fine of N500, 000 for first time offenders, N700, 000.00 for subsequent offences and N50, 000 for every day the offence continues.
Similarly, Section 94 (1) attracts a fine of N2million or an imprisonment term of two years or both for possession of a weapon at a rally. Printing, manufacturing or being in possession of ballot papers without authority is punishable by two years’ imprisonment without option of fine.
Under Section 124 (1), anyone who directly, indirectly or through a proxy conspires, bribes or aids and abets any party to procure the return of a candidate to any elected office is liable to N500,000 fine or 12 months imprisonment.
Section 129 (4) of the Electoral Act criminalises the destruction or snatching of any election material. Offenders are liable to two years imprisonment.
The Electoral Act also outlaws vote buying. Section 130 says that after the date of election has been announced, anyone who corruptly pays another to vote or refrain from voting and any person, who corruptly accepts the token to vote or refrain from voting is liable to a fine of N100,000 or imprisonment for 12 months or both.
The Act also outlaws violence. Section 131 provides that anyone, who directly, indirectly or by proxy, threatens, uses violence, inflicts injury, abducts, restrains or impedes another to hinder them from voting or contesting an election is liable to a fine of N1milion or three years imprisonment.
Prosecution challenges
Some observers believe that the sanctions in the Electoral Act are not stringent enough. With many of the sections having options of fine, offenders with powerful backing and deep pockets cannot be deterred, observers said.
According to Yakubu, many perpetrate the offences because they believe they can easily get away with it. “The law makes provision for what constitutes electoral offences and punishments thereto. However, people commit acts of violence and other electoral offences because they know that in the end they will often get away with them,” he said.
He also blamed lack of discipline in the form, spirit and implementation of the election processes, excessive monetisation of politics, winner-takes all philosophy, the general poverty and illiteracy of citizens and the absence of clear ideological understanding of the parties which encourage fictionalisation as factors that fuel electoral offences.
Under the accusatorial system of criminal justice being practiced in Nigeria, prosecution of offenders is an uphill task because the onus of proving the guilt of the suspect in most cases remains squarely on the prosecution till proved beyond reasonable doubt.
Section 150 of the Electoral Act 2010 (as amended) provides for prosecution of electoral offences by INEC at the Magistrates Court or the High Court of the Federal Capital Territory (FCT). The Police Act also empowers the Police to prosecute offenders.
Section 174 of the 1999 Constitution (as amended) empowers the Attorney-General of the Federation to institute, undertake, take over and continue criminal proceedings against any person in any Court of Law in Nigeria other than a Court Martial in respect of any offence created by an act of the National Assembly.
By virtue of Section 150(2) of the Electoral Act, the duty of prosecuting Election Offences is conferred on INEC legal officers or any other private legal practitioners appointed by the Commission.
In most common law jurisdictions, the Director of Public Prosecutions (DPP), undertakes all criminal prosecutions of conventional crimes on behalf of the state with exception of election crimes.
However, the DPP takes direct instructions from the Attorney-General, who is a political appointee of the ruling political party.
Analysts said there may be conflict of interest where a member of a ruling political party is being prosecuted for election related offences, which may presumably have be committed in favour of the party in power.
Does INEC have the capacity
to prosecute?
Highlighting INEC’s challenges in prosecuting offenders, Yakubu said: “The practice so far has been that the Police, where satisfied that an electoral offence has been disclosed under the Electoral Act, will hand over the case file(s) to the Commission for necessary prosecution after completion of investigation since no power is vested in the Commission to investigate electoral offences.
“The Commission’s Legal Officers or Legal Practitioners engaged by the Commission rely on the outcome of the investigation conducted by the Police in prosecuting electoral offences.
“The lack of statutory powers of the Commission to make arrest and investigate violations has seriously impeded successful prosecution of electoral offenders.
“The investigating police officers (IPOs) in respect of commission of electoral offences are usually posted to different states during elections and will return to their various states of postings after the conduct of elections.
“Likewise, most of the ad hoc election personnel are usually National Youth Service Corps members, who would have passed out of the compulsory one year service period before completion of investigation and/or before the case files are transmitted by the Police to the Commission for prosecution.
“This has led to the incomplete investigation and subsequent non prosecution of many electoral offence cases.”
As a way out, he said there was the need for the investigator to be properly trained in electoral matters given the dynamics of elections, the challenges of the ever growing global society and the mutation of the criminal mind.
Will electoral offences commission do the magic?
There have been calls for the establishment of an Electoral Offences Commission as a way of addressing the challenges to effective and efficient prosecution of electoral offences in Nigeria.
INEC and other stakeholders had recommended for an independent body to be established to handle prosecution of electoral offences with such powers as conferred on the anti-corruption agencies to arrest, investigate and prosecute electoral offenders.
According to the INEC chair, experience has shown that the commission “does not have the time, expertise, resources and the capacity to shoulder such a responsibility in the face of conducting elections and managing post electoral challenges”.
The Muhammed Uwais Committee on Electoral Reform constituted by former President Umaru Musa Yar’adua in its report found that “impunity…has marred Nigeria’s electoral process to date”. It recommended serious sanctions and punishment for electoral malfeasance.
The report said: “All offences committed within the electoral context should be prosecuted expeditiously. The prevailing atmosphere of impunity with regard to election offences should be ended by prosecuting and holding accountable those responsible for electoral offences, including those of a criminal nature.
“This would reduce the impunity, which has marred Nigeria’s electoral process to date, and which threatens to undermine citizens’ confidence in the country’s political institutions.”
The Uwais Report recommended that Section 174(c) of the 1999 Constitution (as amended) should be amended so that the power of the Federal and state Attorneys-General to stifle cases and investigations does not apply to electoral offences.
The Ken Nnamani Electoral Reform Committee also made a similar recommendation as the Uwais Committee.
The Buhari administration reportedly sent a Bill for an Act to Establish the National Electoral Offences Commission and for Matters Connected therewith to the National Assembly in 2017.
The objective of the Bill was to address issues relating to coordination and enforcement of all laws relating to electoral offences and adoption of measures to deal with electoral offences.
The commission would be empowered to investigate all electoral offences, electoral corruption and violations of electoral due process in any election, as well as adopt measures including preventive and regulatory actions and techniques to prevent electoral offences, among others.
Yakubu believes that the Electoral Offences Commission is the ultimate solution. “The creation of the National Electoral Offences Commission conferred with powers to arrest, investigate and prosecute all election offenders will go a long way in reducing the spate of brazen impunity with which electoral offences are committed in this country,” he said.
Lawyers’ views
A Senior Advocate of Nigeria (SAN), Mr Rotimi Jacobs, believed that INEC should be empowered to investigate electoral offences.
Speaking while facilitating a session at training for INEC legal officers and police officers in Lagos, the frontline prosecutor said allowing the police to investigate electoral offences while restricting INEC to prosecution would not achieve much.
Jacobs explained that dealing with electoral offences successfully required tight co-ordination from the process of investigation to prosecution.
“We cannot really achieve much if the only thing INEC does is to prosecute electoral offences and lacks the power to investigate cases.
“We cannot do much when the police is saddled with investigation and INEC takes care of prosecution.
“Successful prosecution of electoral offences will require that INEC is the prosecuting and the investigative agency.
“Giving the agency the power to also investigate would ensure better co-ordination needed to address the problem,’’ he said.
Jacobs suggested that INEC could be empowered by the law to set up its department for the purpose of investigating electoral offences.
He said with this, the commission would be able to handle cases from the beginning to the last day in court.
Country representative for the Open Society Initiative for West Africa (OSIWA) Udo Jude Ilo and Enough is Enough Nigeria (EiE) executive director, Yemi Adamolekun noted that even as Section 150 of the Electoral Act 2010 grants INEC the authority to prosecute electoral offences, the commission lacks the capacity and resources to fulfill this mandate.
According to them, despite its best efforts, INEC has only been able to prosecute successfully a handful of cases since 2015.
They recall that the National Human Rights Commission (NHRC) had documented a list of individuals indicted for electoral malpractices in the course of election tribunal proceedings. The list was said to have been submitted to the Attorney-General of the Federation, but no further action was taken.
According to the lawyers, the structures of accountability and law enforcement in Nigeria are often under the control of politicians, who exercise undue influence on the actions of those agencies. This, they said, makes any form of accountability difficult.
To these legal experts, politicians understand that they are unlikely to face consequences for tampering with the electoral process, thereby undermining the elections’ legitimacy and fairness.
“Furthermore, electoral impunity is a major trigger for violence and instability in the region. Election-related violence led to the deaths of over eight hundred people in 2011, according to Human Rights Watch, and in the 2015 elections more than 50 Nigerians were killed in the run up to the election, according to the NHRC.
“Given the weakness of Nigeria’s electoral and judicial institutions, the political class has little incentive to play by the rules.
“Therefore, the success of Nigeria’s elections will hinge partly on tough love from international election observers and foreign governments.
“The United States in particular can help avert a crisis by supporting a framework for electoral accountability that encourages respect for the rule of law. This framework must include punitive measures.
“Within this context, the United States should consider targeted sanctions and travel bans against individuals, who abuse their office or who undermine the electoral process through their supporters.
“In instances where such actions trigger mass violence, the observer missions and foreign governments should demand accountability.
“Observers and international NGOs will also need to support local civil society as they document infractions in the electoral process, support community mandate protection initiatives, and provide technical and political support to INEC to allow it to hold the political class accountable,” Ilo and Adamolekun suggested.
