The Dr Williams Okoye-led Electoral College of the Christian Association of Nigeria (CAN) for the association’s presidential election has been accused of bias in last Thursday’s shadow election.
Many members of the National Executive Committee (NEC) of the apex Christian body said the poll, in which Rev Supo Ayokunle of Christian Council of Nigeria (CCN) got eight votes to beat Elder Professor Joseph Otubu, who polled two votes, was unnecessary and malicious.
Most of those who spoke with our correspondent in confidence, said it was unconstitutional to hold a shadow election when only two candidates were left in the race for the CAN presidency.
One of them, a delegate from the North, said: “CAN’s constitution stipulates that the Electoral College is to reduce aspirants to two and present them to NEC for proper election.
“Since only two candidates were left in the race, why was there the need to vote again? You vote only to reduce aspirants to two, not to give the public a false picture of popularity.
“That singular move has confirmed suspicions that the college was acting under an influence.”
A delegate from the Southeast accused the 15-member college of bias and premeditated result.
He said the election umpire’s plot was to scuttle the proper poll slated for June 15 at the Christian Centre in Abuja and orchestrate a caretaker committee to oversee the forthcoming election.
The delegate said: “We are aware they held some surreptitious meetings until 2 a.m on the day they held the shadow poll. They planned to disrupt the transition process so that a caretaker committee will emerge.
“By design, the Electoral College wanted to metamorphose into the caretaker committee to conduct the presidential election. It took the stubborn insistence of a member to foil the plot.
“So, the committee is biased and malicious. They are working towards a predetermined end.”
Seventeen years after the restoration of civil rule, free and fair election has been elusive. LEKE SALAUDEEN examines the factors militating against violence-free and credible poll.
Against the backdrop of the electoral violence experienced in recent elections, the Attorney-General of the Federation and Minister of Justice, Malam Abubakar Malami, has unveiled a plan by the Buhari administration to carry out comprehensive reforms, which will empower the Independent National Electoral Commission (INEC) to deal with the perpetrators of electoral violence.
Malami’s disclosure came as the INEC Chairman, Prof. Mahmoud Yakubu, lamented the inability of the commission to bring to book the perpetrators in Bayelsa and Rivers re-run. To curb electoral violence in future polls, he said the agency will review the electoral law and introduce punitive measures for politicians found culpable of electoral malfeasance. Those found guilty may be banned from seeking elective office. Also, the Electoral Offences Commission and Tribunal will be set up to try offenders.
The views expressed by both the AGF and the INEC boss point to the fact that the electoral law is far from being perfect. Analysts believe that the failure of the past regimes to fully implement the recommendations of the Electoral Review Committee (ERC) headed by Justice Muhammed Uwais (rtd) is responsible for the electoral shortcomings. According to them, the challenges have been exhaustively addressed by the Uwais Committee. For instance, the recommendation on the establishment of an Election Offences Commission to try electoral offenders was thrown out. Also, the recommendation that all election-related legal battles should be disposed off before the swearing-in of the winner was set aside. According to observers, the full implementation of the report would restore the integrity of the ballot box.
Justice Uwais had observed that, instead of the full implementation of the recommendations, the Federal Government opted to “pick and choose.” The jurist lamented that the recommendations were sacrificed on the altar of political interests. He said: “As we know, the bill that was produced by the National Assembly reflected some of the views of the Electoral Reform Committee, but not all the recommendations. As far as the Electoral Review Committee was concerned, the recommendations were intended to be in tandem with one another”.
Many stakeholders have blamed the shortcomings in the electoral law on the failure of the previous governments to accept all the recommendations. According to them, the panel made far-reaching recommendations on issues that have constituted obstacles to credible elections. They advised the government to revisit the report and re-present them to the National Assembly for approval.
A legal luminary, Malam Yusuf Ali (SAN), did not objected to electoral law review. but, he was against the creation of tribunal or special court to try election offenders. He said: “There is no need to set up special court for the trial of election offenders; the existing court can take care of it. There are provisions for electoral offences in the statute book; what we lack is the enforcement of such laws.
“nobody has been taken to court for election offences; there must be the will power to arrest, investigate, and arraign the suspects for trial. The INEC should collaborate with the security agencies and ensure offenders are arrested and brought to book. It should create a special department to prosecute election offenders. It should be empowered to handle election offences not by creating special courts.
“I don’t support the proliferation of courts because of the financial burden. If government goes ahead to set up the special court, it will have to approve budget for the overhead cost, which is an additional cost at a time the government is complaining of a lean purse. What is important is that all of us should agree that our laws must be enforced”.
The Convener of National Coalition for Electoral Reforms (CODER), Mr Ayo Opadokun, called for the full implementation of the Uwais report. According to him, the non-implementation of the recommendations has been counter-productive. He said the Jonathan administration frittered away the opportunity created by the panel to make the INEC independent of the executive. The pro-democracy activist explained that the panel had recommended that the position of the INEC Chairman should be advertised and those interested should apply to the National Judicial Commission (NJC), which will recommend three of the applicants to the National Council of State. The Council will then pick one of them and send the name to the Senate for approval.
He noted that, of all the recommendations made by the committee, “the one that the INEC should be self-accounting or should be on the consolidated revenue is the only that has been accepted by the government at the centre. The other recommendations have been jettisoned”.
Opadokun added: “There is also the recommendation that there should be an Electoral Offence Commission that will have the power to prosecute offenders, either at the federal or state level. Its rejection has aided the rigging of elections by the previous government that reviewed the report. Besides, Uwais recommended that nobody should be allowed to assume office if his/her election is being challenged, until all judicial interventions have been concluded. That also was not taken”.
The President of Nigeria Voters Assembly (VOTAS), Mashood Erubami, commended the move to amend the Electoral Act. According to him, the reform will lay a solid foundation for sustainable, free, fair and peaceful elections. He said “the review is necessary to disentangle free and peaceful elections from the sway of politicians who want to continue to use flawed elections to defend and preserve their status quo opportunism”.
Erubami added: “It is imperative for the government and the INEC to be seriously committed to comprehensive electoral reform so that future elections will not degenerate further than the experiences in Kogi, Bayelsa, Abia, Enugu, Akwa Ibom, Cross River and Rivers. It is now auspicious time to re-present the appropriate sections of the Uwais electoral report, which are yet to be given its required full attention for consideration. The Uwais report requires administrative and constitutional treatment which was not given to it before and after 2011 elections.
“Apart from this, there are other specific areas that must be reviewed, especially areas that are obstacles to the the operational efficiency by the INEC and areas that have not allowed elections that are free from fair, and reforms that will strengthen the security and technological aspects of the election especially in relation with voters registration; judiciary and the judicial process, electoral malpractices/prosecution, political parties and internal democracy, death of candidate during election, politics of re-election and term of office, residency and indigeneship”.
Constitutional lawyer Akin Badejo lamented that the country wasted the opportunity of having a robust electoral law that can withstand the test of the time by dumping the Uwais Report into the archives. He said: “To me I don’t think we should embark on another electoral review exercise now. Rather, the Federal Government should retrieve the Uwais Report and adopt all the recommendations therein. Sending new proposals to the National Assembly is a waste of time because nothing will come out of it.”
According to him, the Uwais Report was watered down by the Aondoakaa Panel. Badejo added: “For instance, contrary to the Uwais recommendation that the appointment of the INEC chairman be advertised and coordinated by the National Judicial Commission (NJC), which will forward the name of the nominee to the Senate for ratification, the Aondoakaa Panel recommended that the INEC chairman should continue to be appointed, based on the recommendation of the President and confirmation by the National Assembly.
“The advantage of settling electoral dispute before the swearing-in of the winner is that it would not allow either the President or the governor to use his office to manipulate electoral process.”
However, the review Committee did not disagree with the committee that produced the white paper on independent candidacy. But, the Aondoakaa Panel introduced a clause, which compels independent candidates to deposit certain amount of money to be determined by theINEC and which will be refunded, if they win specified percentage of the votes cast”.
Erubami called for the establishment of an election crime commission for the prosecution of election offenders. To him, the INEC must be empowered to prosecute political parties when they spend beyond and above the minimum amount allowed to be spent on campaigns. “It is the availability of unlimited funds for political campaigns that has helped the recruitment of thugs, arming hoodlums to endanger the electoral process.
“Electoral law against violence must be stringent to protect election against impunity, beyond the usual shifting office of the Inspector-General of Police to the state where election is taking place, if we still have to report the incidence of unchecked violence and election malpractices.
“The new electoral reform must discourage political elites and checkmate hoodlums from conducting elections at gun point and turning election into warfare, the electorate should begin to see election as a means through which preferred candidates are chosen and a tool for changing government and not for the killing and maiming of the electorate”.
Opadokun said the electoral act review must provide solutions to the unfortunate incident that happened during the last Kogi governorship election where the leading candidate died before the conclusion of the election. He said such development was not envisaged by the Uwais Committee.
The way out, according to Opadokun, is that Nigerians must stand up and insist on the Uwais Report. He said: “It is only by insisting on the Uwais report that Nigeria can hope to make her elections credible and meet international best practices. Any election in this country outside the recommendations of the Uwais Report is just a facade.”
The All Progressives Congress (APC) in Ekiti State has slammed Governor Ayo Fayose for his opposition to the establishment of Electoral Crimes Tribunal to punish individuals, who participate in violence and electoral malpractices.
Last week, the governor criticised the proposal by the Independent National Election Commission (INEC) to establish election crimes tribunal to try individuals involved in fraudulent practices and violence during elections.
INEC’s call followed cases of violence resulting in killings during elections, saying that the establishment of election crimes court would curb the trend.
Fayose objected to the proposal, saying that it was a ploy by the Federal Government to appoint cronies into such courts to manipulate the judges to give favourable judgment to the ruling party.
The governor also alleged that the Federal Government would manipulate the federal institutions, such as the police, army, DSS and INEC officials to implicate members of the opposition in such election crimes courts.
Reacting to his reported outburst, the APC said the governor was afraid of his own shadow by the way the federal institutions he listed were manipulated to help him win the June 21, 2014 governorship election.
Olatunbosun said: “We are not surprised that Fayose is afraid of election crimes court because he knows how he emerged as the governor. He is afraid to face the court because he can never win any election without committing fraud and attacking the opposition.”
The Nigerian political scene is a pundit’s nightmare, with its immense capacity to shock. Consider the Ekiti State scenario. Many months after we all had concluded that the governorship election had been won and lost, a fellow showed up on television the other day to spill the beans, relaying graphic details of the plot that gave Ayo Fayose the governorship mantle. It all sounded so incredible, like a story in the hands of a master fiction writer, but the Fayose camp, which could have debunked Tope Aluko’s facts and figures, abandoned the message and went after the messenger. Now, the author of “the Great Confession” says his life is under threat.
More shocks were to follow, with the Supreme Court nullifying the positions of the lower courts in the Rivers, Akwa Ibom and Taraba governorship elections, among others. Many politicians, exasperated and perplexed by their perception of justice in contradistinction to judgment, have contacted “Editorial Notebook” for advice, paving the way for that bestseller, “An electoral Manual”, which has been revised at least twice, to undergo another makeover.
Here then is another revised edition of the manual, which will, no doubt, be of great help to those who intend not just to contest an election but to win and defend their hard earned victory.
Always remember that every election is a war. You need an army of yours – well funded. If you have a President who cares little about the ambush-and-finish-off politics that is common here, the better for you. The Armed Forces will simply look the other way as your troops make mincemeat of your opponents on the eve of the election.
How? Simple. Get your boys (your opponents will scorn them as thugs and roughnecks and bad boys and criminals and hoodlums; never mind; the end, as they say, justifies the means) to visit the homes of some key members of the opposing party, fire some shots and spill as much blood as possible. You will be surprised that the next day, only a few stubborn supporters of your opponents will have the guts to come out for voting.
The field is, automatically, open for you and all your agents to manipulate the accreditation – card reader or no card reader–, stuff the ballot and award the votes in the score forms you must have kept in a secure place for this great day. Some of your opponent’s supporters will complain that the card reader is not working and, in frustration, walk away. Better for you.
At the end of it all, reporters will seek your view on the exercise. You will, of course, praise it as the best in recent times. “Kudos to INEC; they have really improved. Materials arrived early and accreditation was orderly. Voting was peaceful,” you will tell the nosey fellows.
Your opponent will cry like a baby whose lollipop has been snatched by an inconsiderate elderly fellow. He will scream murder and say that the ballot was rigged and that his supporters were murdered. Be calm.
In no time, the Independent National Electoral Commission (INEC) will declare you winner of the election. Your opponent will, naturally, disagree. His supporters will mount some street protests and malign INEC and its ever-dutiful officials, who will, of course, stand their ground and ask the aggrieved party to go to the tribunal – the only organ that can change the verdict.
Go to church for thanksgiving and testify to how faithful the Almighty has been to you. After you have been sworn in as governor, do not abandon the path of rectitude. Go from one church to another, praying for victory in the upcoming legal battles. Your opponents will say you have turned yourself into a prayer project as Pentecostal giants lay hands on your balding head. Never mind. All is well.
Then build up an unassailable war chest. Get the House of Assembly to approve that you borrow some billions – for what you will call some esoteric names, such as “Operation Zero Tolerance for Potholes” and “No More Refuse”. Critics, those idle fellows who abuse the rights of others by insisting that all behaviours must conform with their narrow standards, will call you reckless and spendthrift. Don’t reply. Afterall, the House is behind you.
Head for Abuja to tidy up that end. Then there will be so much noise about you being found loitering around the office of the Chief Justice. Yes. Don’t you have the right to movement? Isn’t that office a public place? Don’t you have some issues the CJN ought to have settled and what is wrong in a reminder?
Go back home and get set for the tribunal. You can cause panic in the camp of your opponent by threatening to unleash on the tribunal 10,000 witnesses who will testify that your election was free, fair and credible.
Hire an army of good lawyers, those called SANs, who will storm the tribunal with facts and figures and summon witnesses to swear that you were indeed the people’s choice. Your opponent may call hundreds of witnesses; don’t be intimidated. If you can get 10, that is okay.
At the end of it all, the tribunal may, in its limited wisdom, call your witnesses a bunch of liars and declare that you failed to prove beyond doubt that the trophy was rightly handed over to you and that a new election should be organised within 90 days. Don’t be downcast. Reject the judgment and head for the court of Appeal. It is, after all, a marathon and not a dash.
The SANs, aforementioned, will rise to condemn the tribunal and tell the court how it erred in law a thousand times to nullify your election, how it failed to prove that you cheated, how you perpetrated no violence (even if there was violence, weren’t you and your supporters the victims?), how some of your votes were unjustly cancelled and how you believe the court will play its role as the last hope of the common man by restoring the mandate , which thousands of your people freely gave you.
But a note of caution: even the best of lawyers know that Homo proponit sed Deus disponit (that is to say, “man proposes, God disposes”). The Court of Appeal may find no merit in your lawyers’ fine arguments, their marvelous erudition and impeccable logic. “The appellant has not convinced this court that his case has merit and the appeal fails and I so declare,” His Lordship may say.
Be courageous. Nothing good comes easy. To the Supreme Court you head. Again, your lawyers will deliver your case, deploying all manner of syllogisms, obfuscations and verbosity to impress their Lordships. By now, your opponent and his supporters should be thinking that it is all over, signed, sealed and waiting to be delivered. But for you, it has just begun. Go round and throw in everything.
Thereafter, relax. You can even boast a little by saying you are sure the Supreme Court will right all the wrongs against you. After all, by now, you know what many do not know- that not all legal battles are won in the court room. Tell your supporters to get set for a carnival.
To the consternation of all, including your opponents and all those legal giants who had predicted your fall, the Supreme Court will pronounce your election valid.
It will say that the card reader, one of the planks on which your opponent’s case was built, is a stranger to the Electoral Act and that he failed to prove the allegation of rigging as he did not bring witnesses from all the polling units where the so-called irregularities took place.
Besides, the eminent jurists will say the allegation of violence holds no water. Where are the victims who claimed to have had their heads smashed? People died; yes, but where is the proof? How many died and where are their death certificates, which must be authenticated by a certified forensic expert. Where are the doctors, nurses, morgue attendants, ambulance drivers and all others who can help the court determine that indeed there was violence? Was the violence substantial enough to affect the outcome of the election? Whose fault?
These allegations are criminal and must be proven beyond reasonable doubt. The court cannot do this for the party making the allegations as it is trite in law that El incumbit probation qui dicit, non qui negat. That is to say “he who asserts must prove”.
Disenfranchisement? This allegation must also be proven polling unit by polling unit and the police report must be consistent with that of the witnesses.
Now you can mount a road show, revealing how the long and tortuous journey ended the way it did. At a thanksgiving service, you can dance, raise your hands and sing:
He has given me victory, I will lift Him higher
Jehovah, I will lift Him higher
The Lord has given me victory, I will lift Him higher,
Jehovah, I will lift Him higher
You can then reveal how you have enjoyed the fruits of obedience, how an elder statesman would wake you up at night and tell you who to visit and you obeyed without questions. “I took all the advice and here we are today,” you will gleefully tell your excited audience. Applause. Applause.
Your opponents will claim that, going by your utterances, you had foreknowledge of the judgment. In fact, some people will say that you “climbed onto the governor’s seat over bodies” and that you swam in blood to the Government House. Such hyperboles are common at times like these. Just ignore them all.
If you have suspended any member of your team who you are afraid could spill the beans, as Aluko did, quickly recall the fellow.
So dear all, “here we are”. One more word. All rights reserved. No part of this manual may be reproduced, transmitted or stored in a retrieval system in any form or by any means without the permission of the copyright holder.
The Chief Judge of the Federal High Court, Justice Ibrahim Ndahi Auta, yesterday hailed judges of the court for their brilliant handling of pre-and-post election disputes.
He said the judges performed excellently in handling election petitions arising from the 2015 general elections.
“There was no incidence of grant of ex-parte orders of injunction or any pronouncement, which threatened conduct of the elections, qualification and or disqualification of any candidate,” he said.
Justice Auta urged them to continue to be fearless, transparent and God-fearing in discharging their duties.
He spoke in Abuja yesterday at the court’s end-of-year party, where some retired and outstanding staff were honoured.
Justice Auta hailed the judges for handling election petitions with soundness of mind and knowledge of the law.
These, he said, created a level playing field for all candidates.
He urged the judges to ensure that all cases concerning the 2015 general election, still pending before them, were concluded on scheduled.
Justice Auta assured that, “the Federal High Court is very ready to conclude all criminal matters, especially matters affecting politically exposed persons within one month provided the prosecutors will do their work efficiently and effectively”.
He urged the court’s staff to contribute to the development of the court, both in infrastructure and human capital development.
No doubt, election petitions are being attended to by the various Election Petition Tribunals. The impunity that was witnessed during the election has continued as the Independent National Electoral Commission (INEC) is trying desperately to justify the rigging of many governorship and legislative elections. Apart from frustrating the inspection of election materials as ordered by the tribunals, INEC has been filing objections that are designed to frustrate the speedy dispensation of justice. As if that was not enough, INEC has urged the tribunals not to place any probative value on the use of card readers. As there is no plan to prosecute the people who committed serious electoral offences the Civil Society Legislative Advocacy Centre (CSLAC) deserves commendation for reminding the Nigerian people of the urgent need to revisit the orgy of violence that was witnessed during the 2015 general elections.
The CSLAC and other civil society organisations should be more focused and vigilant more than ever before. While the various factions of the ruling class are fighting for a government of national unity that will be peopled by the representatives of all ethnic and religious groups the government should be reminded that the youths, women, workers, people with disability and other vulnerable segments of the society should be represented in the running of the affairs of the country. As corruption fights back the progressive extraction of the civil society should not hesitate to rally round the government in ensuring that the stolen commonwealth is recovered and earmarked for the development of the country.
The penalty for subverting democracy in Africa
In the 1990s, the results of credible elections were annulled in Algeria, Nigeria and some other African countries by dictatorial regimes. The political violence generated by such annulment led to the disruption of the democratic process and the reckless massacre of many people. The perpetrators of such carnage were never brought to justice due to the weak criminal justice system which was put in place by the anti-democratic forces in power. Several complaints were filed by human rights bodies at the African Commission on Human and People Rights in Banjul, Gambia on the mass murder of people. As the findings of the Commission have no binding force the indictment of the killer regimes was regularly ignored. However, the victims of the genocidal acts which took place in Chad under Mr. Hasne Habre secured a warrant for his arrest and trial in Belgium.
The decision of the President Abdoullahi Wade not to extradite Mr. Habre, who is in exile in Senegal, was supported by other African leaders. Although the said warrant of arrest was issued under the doctrine of universal jurisdiction which operates in some countries European countries, Mr. Habre’s trial for the massacre of over 2000 Chadians has since commenced in Dakar. However, the ratification of the Rome Statute by several African states signaled the end of impunity in respect to genocidal acts and crimes against humanity. Under the Rome Statute the trial of President Laurent Gbagbo for crimes against humanity arising from post election violence in Cote D’ivore is due to commence soon at the International Criminal Court in the Hague.
In 2008, the failure of the electoral body to announce the results of the presidential election held in Kenya led to the brutal killing of over a thousand people and the destruction of several properties. Mr. Kofi Anan, a former Secretary-General of the United Nations was invited by the government to conduct an inquiry into the political violence. Based on the report of the inquiry charges of crimes against humanity were filed against Messrs Uhuru Kenyatta and William Ruto at the International Criminal Court (ICC). Notwithstanding the election of both suspects as President and Vice President of Kenya in the 2013 general election while the case was pending the charges were not discontinued.
Instead of drawing the necessary lessons from the case, African leaders threatened to withdraw the ratification of the Statute of Rome if the trial of the Kenyan leaders was not terminated by the Special Prosecutor of the ICC. Although the threat was ignored the case has been struck out for want of diligent prosecution. In a bid to stop the trial of African leaders at the Hague the African Union resolved to expand the mandate of the African Court on Human Rights sitting in Arusha, Tanzania to deal with allegations of genocide and crimes against humanity committed in any African country. In spite of the criminal jurisdiction conferred on the African Court the forthcoming trial of President Laurent Gbagbo at the ICC has contributed to peaceful transfer of power in the several African countries including Nigeria.
Peace Accord and Electoral Violence
Shortly before the 2015 general elections, Mr. Kofi Anan and Chief Emeka Anyaoku, a former secretary-general of the Commonwealth, jointly presided over the signing of a Non-Violence Accord by the presidential candidates of the registered political parties. At the well celebrated ceremony which held in Abuja at the instance of the National Peace Committee the candidates of the two leading political parties embraced each other. While the media and several people were excited with the development I expressed the view that the so called peace accord would not stem the tide of political violence in the country due to the violent nature of the electoral system coupled with official impunity. As rightly observed by the National Human Rights Commission, “signing a peace pact is easy, the more difficult part is to ensure that the political office seekers and their supporters work within the rules of engagement.”
Notwithstanding the peaceful transfer of power from the ruling party to the opposition party the country recorded a reign of terror by armed thugs who engaged in the bombing and burning of party secretariats, the destruction of vehicles belonging to political parties, the harassment of political opponents , the extrajudicial killing and brutal attacks of innocent people at party congresses and primary elections, the unprovoked assault on judges etc. Top political leaders made inciting statements. A governor published a death wish advert capable of causing ethno-religious riots. Another governor attended a meeting where ex-militants threatened to declare a war on the Republic if the particular candidate backed by them was not re-elected. In Lagos, scores of well armed operatives of an ethnic militia who were accompanied by the police staged a street protest. A state governor accused a minister of paying armed thugs to stone President Jonathan during a political rally in Bauchi.
The aforementioned cases of electoral malfeasance were never taken up by the law enforcement agencies. Indeed, the security agencies did not hide their partisan position during the season of anomie. In particular, the former national security adviser and the service chiefs instigated the INEC to postpone the general elections by six weeks. Under the pretext of maintaining law and order the state security service endorsed the wearing of masks by armed thugs at campaign rallies. Indeed, there were politically motivated killings traceable to security personnel. With such official impunity the leading political parties engaged in the uncontrolled contravention of the electoral law and the penal code. The National Human Rights Commission disclosed that not less than 100 people were killed during the general elections. So far, no suspect has been prosecuted for the reckless murder of the unarmed citizens.
Official impunity and electoral
offenders
In 2007, President Umoru Yaradua admitted that the election which brought him to power was flawed. In a bid to sanitize the electoral system he set up the Mohammadu Uwais Electoral Committee . Among other recommendations the Committee called for the establishment of an Electoral Offences Tribunal. The Yaradua Administration rejected the recommendation without any justification. However, following the political violence which greeted the announcement of the results of the presidential election in some states in the North and Akwa Ibom in April 2011, President Goodluck Jonathan set up the Ahmed Lemu Panel to investigate the crisis. From the detailed report of the Panel, 943 people were killed while 838 others were injured. While the Federal Government has paid over N10 billion as reparation to the victims of the riots, the 626 suspects who were arrested in connection with arson, culpable homicide and other grave offences perpetrated during the civil disturbances have been left off the hook on account of official impunity that has become the order of the day under the current political dispensation. Convinced that electoral offenders ought to be prosecuted in order to stop electoral violence the Panel equally made a strong case for the setting up of “an autonomous and constitutionally recognized electoral Offences Tribunal, but which may be an ad hoc body as it may not have much to do in between election periods.” In accepting the recommendation of the Federal Government undertook to take all necessary actions to establish the Tribunal. Although the recommendation was adopted in August 2012 , the Tribunal is yet to be set up. Instead of signing a non-violence accord President Goodluck Jonathan ought to have instituted the Electoral Offences Tribunal. That would have put an end to the official endorsement of politically motivated violence in the country.
Since ours is a country which claims to operate under the Rule of Law it is inexplicable that the suspects involved in sabotaging the electoral process have not been charged to any criminal court. The crisis of impunity in the land has been compounded by the partisan involvement of the authorities of the police, the armed forces and other security agencies in the political process. Although there are adequate and elaborate provisions in the Electoral Act, 2010 as amended and the penal statutes to deal with political violence and electoral malfeasance the managers of the neo-colonial state lack the political will to bring electoral offenders to book. In a number of decided cases, the courts have held that candidates sponsored by political parties cannot be held vicariously liable for politically motivated violence and electoral malpractice carried out on their behalf unless they can be directly linked with instigating or directing their supporters to engage in such criminality. Indeed, political leaders usually dissociate themselves from acts of violence by condemning the perpetrators. In many cases, attorneys-general are directed to file nolle prosequi to stop the prosecution of suspects who belong to the ruling parties. Hence, the cases of the hundreds of suspects charged to court by the Police for electoral offences committed during the 2003, 2007 and 2011 general elections were abruptly terminated in all the states of the federation.
It is submitted that the withdrawal of cases of electoral violence is illegal as it is subversive of democracy. It ought to be pointed out that even executive immunity does not cover election petitions and electoral offences! In Turaki v. Dalhaltu(2003) 38 WRN 54 at 168 Oguntade JCA (as he then was) held that “If a Governor were to be considered immune from court proceedings, that would create the position where a sitting Governor would be able to flout election laws and regulations to the detriment of other persons contesting with him. This will make a nonsense of the election process and be against the spirit of our national Constitution which in its tenor provides for a free and fair election.”
As President Buhari has pledged to bring the perpetrators of electoral violence to book the federal government should direct the National Human Rights Commission and the Nigeria Police Force to collaborate with the Independent National Electoral Commission (INEC) to prosecute all electoral offenders. In view of the limited capacity of the INEC to discharge the onerous duty conferred on it by section 150 of the Electoral Act, the Nigerian Bar Association (NBA) should assist in the prosecution of electoral offenders throughout the country. The influential members of the National Peace Committee may wish to join the campaign to end impunity in the country. Unless electoral offenders are punished as envisaged by the Electoral Act and the Constitution the subversion of the democratic process will continue unabated.
Conclusion
Finally, I wish to call on the federal government to constitute the INEC without any further delay. The many vacancies in the INEC should be filled with independent minded Nigerians of unimpeachable integrity through a transparent process. Once reconstituted the INEC should proceed to ensure that all citizens of voting age are registered and issued with permanent voters cards on a continuous basis while the use of card readers is perfected for future elections. The National Assembly is called upon to amend the Electoral Act to permit electronic voting and the use of permanent voters cards and card readers. Henceforth, the INEC should bear the legal responsibility of proving that elections have been properly conducted in substantial compliance with the Electoral Act.
Governors elected on the platform of the Peoples Democratic Party (PDP) have rejected claims of electoral fraud in the last governorship election in Rivers and Akwa Ibom states.
In a statement in Abuja last night and signed by the coordinator of the PDP Governors Forum, Osaro Onaiwu, the governors said that the Independent National Electoral Commission (INEC) had already declared the election in Rivers State as credible.
The statement said the outcome of the Akwa Ibom governorship election should not be a surprise to anyone, adding that the last PDP governor in the state, Godswill Akpabio “performed tremendously well” and that the people of the state had no reason to change course.
The Governors’ lamented what they described as the abuse of freedom of speech by certain observer groups that made “spurious allegations” about the elections “to please their sponsors”.
The statement called on the security agencies to reign in these groups, as, according to the governors, they were capable of disrupting the peace with their claims and utterances.
The governors also decried what they described as “the boastings” of the All Progressives Congress (APC) to take both Akwa Ibom and Rivers states through the tribunal.
How can electoral offenders be tamed? It is by establishing an Electoral Offences Tribunal (EOT) argue lawyers say, will speedly handled and relieve the courts of such additional burden, report ERIC IKHILAE
Reports of politicians and their reporters’ involvement in underhand deal during last Saturday’s elections have, again, brought to the fore the need to strengthen existing mechanisms for combating electoral offences.
Stuffing and snatching of ballot boxes, shooting, detonation of explosives to scare voters and pre-election violence and intimidation, have confirmed the fear that free and fair election may be impossible.
Since 1999, successive elections have been marred by irregularities with politicians and their supporters, bent on winning at all cost.
Observers have argued that the trend is bolstered by the do-or-die approach to election since many believe that political offices are avenues to wealth.
Despite the danger this poses to democracy, institutions responsible for prosecuting electoral offenders appear helpless.
Part V111 of the Electoral Act, 2010 (as amended) lists various types of electoral offences and prescribes punishment for them.
Section 23, for instance, prohibits the buying or selling of voter cards; such offences attract a fine not exceeding N500,000 or imprisonment not exceeding two years or both on conviction.
Under Section 81, a political party or association, which contravenes the provisions of Section 227 of the Constitution (prohibiting retention, organisation, training or equipping quasi-military organisations) commits an offence and is liable, on conviction, to a fine of N500,000 and N700,000 for any subsequent offence; and N50,000 for every day that the offence continues.
The Act also provides that any person, who aids and abets a political party to contravene Section 227 commits an offence and is liable, on conviction, to a fine of N500,000 or imprisonment for a term of three years or both.
Section 91 of the Act criminalises contravention of limitation on election expenses.
Under Section 91(12), any accountant, who falsifies or conspires or aids a candidate to forge or falsify a document relating to his expenditure in an election or receipt or donation for the election or in any way, aids and abets the breach of the provisions of Section 91 commits an offence and on conviction is liable to 10 years imprisonment
Section 122 prohibits impersonation and voting when not qualified, and its contravention attracts a maximum fine of N500,000 or 12 months imprisonment or both.
Under Section 129(4) anybody, who snatches or destroys any election material shall be liable on conviction, to 24 months imprisonment. Section 130 frowns at undue influence of electorate on electoral officials; its contravention attracts a maximum fine of N100, 000 or 12 months imprisonment or both, while threats, under Section 131 attract a maximum fine of
N1, 000, 000.00 or three years imprisonment.
Section 150 of the Electoral Act 2010 (as amended) empowers the Independent National Electoral Commission (INEC) to undertake the prosecution of election offenders. Section 150 is complemented by Sections 174 and 211 of the Constitution, which empowers the Attorney-General of the Federation and states’ Attorneys-General to institute and undertake criminal proceedings against any person with respect to federal laws and state laws respectively.
While it is impossible for INEC to exercise its prosecutorial power without investigation, it requires police assistance, saddled with investigatory powers under Section 4 of the Police Act. Also, the Electoral Act, in Section 149 allows the Election Tribunals to recommend prosecution for an offence disclosed in any election petition.
However, Section 150(1) & (2) of the Act provides that an offence committed under the Act shall be prosecuted in a Magistrate Court or High Court of the state where the offence is committed, or the Federal Capital Territory (FCT), Abuja, and that prosecution under the Act shall be undertaken by INEC’s Legal officers or any lawyer appointed by it.
Despite the legal provisions empowering the INEC, the police and the Attorneys-General (both at state and federal levels) to prosecute electoral offenders, the culture of electoral impunity has continued unabated, while agencies of state empowered to combat it appear either overwhelmed or unwilling to act.
So far, there is no known case where election tribunals have exercised the powers conferred on them in Section 149 of the EA to recommend any political actor for prosecution for electoral offences.
In cases where some violations are detected and culprits apprehended, negligible few are taken to court. During the last voters registration exercise, INEC said it detected about 870, 000 cases of multiple registrations, which are offences under the Electoral Act, but a negligible few were prosecuted under the law.
In 2014, the Governing Council of the National Human Rights Commission (NHRC) recommended to the Attorney General of the Federation (AGF), Mohammed Adoke (SAN) the prosecution of 41 persons including former Edo State governor, Professor Oserhiemen Osunbor for their alleged involvement in electoral laws violation.
David Mark
Other prominent names on the list sent to the AGF include a former Speaker of the Kogi State House of Assembly, Clarence Olafemi, a former INEC Resident Electoral Commissioner in Ekiti State, Mrs Ayooka Adebayo and an Assistant Superintendent of Police, Christopher Oloyede.
NHRC also listed the People’s Democratic Party, INEC and the Nigeria Police Force, police officers, INEC’s officials, lawyers and politicians in the recommendation to the AGF.
The 41 alleged electoral offenders were said to have all been indicted in the judgments by various election petitions tribunals and courts. They were alleged to have been linked to offences related to forgery, perjury and breach of trust. The NHRC attached to its letter to the AGF, copies of the judgments where those listed were indicted.
NHRC’s inclusion of Osunbor was in relation to the finding of the election tribunal in the petition by Governor Adams Oshionhole, where the tribunal came out with criminal and administrative indictments against the respondents in the case.
The case against Mrs Adebayo was in relation to her role in the election in Ekiti State as captured in the tribunal’s finding in the judgment on the petition by Governor Kayode Fayemi against Olusegun Oni and others.
In the case of ASP Christopher Oloyede the Court of Appeal held that “the evidence on record showed that a policeman, ASP Christopher Oloyede signed an election result sheet as party agent on behalf of the PDP. This is an illegality and violation of electoral rules both by INEC and the police.
“ASP Oloyede behaved disgracefully and abused his position. Neither INEC nor the Police could defend the illegality that ought to have been sanctioned.”
As regard Olafemi, the report referred to the judgment of the electoral tribunal, where it was stated that “the petitioners have proved beyond reasonable doubt that the 1st respondent, Hon Clarence Olafemi leading his agents and thugs did commit acts of corrupt practices and non-compliance with the Electoral Act by disrupting the ýconduct of election, harassing and intimidating eligible voters who were sent away from polling units without voting.”
Prof Osunbor is currently at the Federal High Court, Abuja, challenging his inclusion in the list by the NHRC. But since the list was submitted to him, the AGF is not known to have taken any steps to act on the recommendations by the NHRC.
Also, President Goodluck Jonathan, who in 2011 pledged to ensure the creation of the Electoral Offences Commission (EOC), has not found the courage to fulfill the pledge.
The Electoral Reform Committee set up by President Jonathan’s predecessor, the late President Umaru Musa Yar’adua recommended the establishment of an autonomous and constitutionally recognised EOC vested with the power of arrest and prosecution of electoral offenders under a separate mechanism that is independent of the government in power.
Observers argued that beyond INEC’s claim of lack of capacity to combine prosecution of election offenders with its primary duties of conducting elections, the elimination of election fraud will remain a mirage under the prevailing arrangement.
They see no possibility for elections devoid of fraud and manipulation when the incumbent President, who is a member of a political party, insists on retaining the power to appoint the Chairperson, National Commissioners and Resident Electoral Commissioners of the electoral body that ought to be independent.
They further argued that a credible electoral process is impossible where the electoral management body is denied autonomy and independence, and the power of incumbency used and misused; where security agencies are deployed and used against opposition forces with the aim of sustaining the incumbent in power.
As a remedy, they suggested the need to strengthen existing legal and institutional frameworks around electoral accountability with the intention of providing adequate penalty for electoral crimes.
They noted that those, who commit or encourage the commission of electoral offences are encouraged by the fact that the Police, other investigating agencies and INEC are incapable of ensuring thorough investigation and conviction, and that where such is possible, the Attorney-General will take over the prosecution and terminate their trial when their party gets to power.
It is their contention that the establishment of an EOC, removed from the operational control of the Executive and the Attorney-General of the Federation and of the states, but granted financial autonomy could help in combating electoral offences.
Lawyers, including Mahmud Magaji (SAN), the Chairman, NHRC, Dr.Chidi Odinkalu, Dr. Abubakar Sulaiman, and the Executive Director, Policy and Legal Advocacy Centre (PLAC) and Coordinator of the Nigeria Civil Society Situation Room, Clement Nwankwo suggested among others, the strengthening of existing legal framework and the need for the National Assembly to pass the Bill for the creation of an EOC into law.
Odinkalu argued that ensuring electoral accountability could be achieved, but not with a force of the degree. “The fact that those involved in electoral offences have not been prosecuted now does not mean they cannot be prosecuted later. But to address that, we need to continue to keep evidence, keep records, and keep alive, the demand for accountability.
“In 2011 nobody would have foreseen that the NHRC would be calling for the prosecution of people. That is progress. In 2014 the NHRC started asking for the prosecution of named people, some of whom have been governors, acting governors and senators.
Now, at these elections, there are entities collecting and documenting evidence for prosecution. I am confident that the time for accountability is here and we are not going to change that.
“I, personally, do not believe that we should be creating all these new commission and tribunals for the same problems. Let’s make our police work. Let’s make the courts work. And let’s normalise all crimes. So, I am not an apostle of an Election Offences Tribunal or Commission, but I am an apostle of accountability. And I think we are making progress towards ensuring electoral accountability in the country.
“Nobody in 2011 would believe that a former governor will be suing a public body before a Nigerian court to be excluded from prosecution for electoral crimes. That is progress. Whatever happens in that case, we are going to end up at the Supreme Court. We are going to get the jurisprudence changed and we are going to make progress,” Odinkalu said.
Sulaiman urged the Legislature to urgently pass the Bill for the establishment of an independent EOC, with the capacity to investigate all electoral fraud and related offences, coordinate enforcement and prosecution of all electoral offences.
“The commission should be imbued with the capacity and legal powers to set up Mobile Courts to try election offences on election days. It should also have the powers to evolve measure to prevent and eradicate the commission of electoral malpractices and facilitate rapid exchange of scientific and technical information among other democracies on the conduct of joint operation and training aimed at eliminating electoral malpractices,” he said.
Nwankwo contended that it was a failure on the part of the President that recommendation for the creation of an EOC, which has gone through some discussions at the Legislature, has not been passed into law.
“Usually, if the President was to prepare a Bill and send it to the National Assembly, it would be an Executive Bill and will be taken seriously. The initiative to create an EOC has been driven mostly by private interest. And I think that this is the failing of the President in not setting up a commission to be able to deal with this.
“We think the President should be able to create a body that will prosecute persons that commit electoral offences and ensure that people, who commit such offences are not allowed to walk away free.
“While we await the creation of such a body, the relevant agencies could still rely on existing laws to prosecute electoral offenders. INEC has the powers, under existing laws to identify electoral offences and insist on prosecution.
The need to instill sanity in electoral activities and outcome in Nigeria has made it necessary for us to move from the antediluvian method of voting where crude force and metal violence reign supreme. The unprecedented clamour for change is not devoid of historical necessity as the volume of condemnation that trailed the 2007 general elections only showed that Nigeria as a nation could not be counted among civilised nations democratically.
It was based on the above that Independent National Electoral Commission (INEC) is required to do everything humanly possible to ensure that we attain electoral transparency that can instill discipline and statesmanship in politicians as for genuine losers to accept defeat and the authentic winners to maintain sobriety in victory. I believe, it is in the light of the above that INEChas introduced the use of Card Reader to determine the genuineness of the identity of voters during accreditation in order to eliminate voting by proxy and associated malpractices.
Unfortunately, while agents of change have been embracing technological advancements recognised and permitted by law to make electoral justice and sanity prevail, we have been inundated by cacophonous calls from various quarters of those who want to maintain the status quo in which electoral violence and brazen rigging are permitted. They have argued that the use of card reader is not allowed by virtue of Section 52 of the Electoral Act, 2010 (as amended).
Section 52 of the Electoral Act 2010 as amended provides that:
• Voting at an election under this Act shall be by open secret ballot.
•The use of electronic voting machine for the time being is prohibited.
• A voter on receiving a ballot paper shall mark it in the manner prescribed by the Commission.
• All ballots at an election under this Act at any polling station shall be deposited in the ballot box in the open view of the public.
The implication of the above in line with Subsection 2 is that electronic voting is forbidden in Nigeria. The next questions therefore are: what is electronic voting or electronic voting machine? What is a card reader and is electronic voting machine the same thing as a card reader?
A card reader has been defined as “a data input device that reads data from a card-shaped storage medium…. Modern card readers are electronic devices that can read plastic cards with either a barcode, magnetic strip, computer chip or another storage medium.”
See https://en.wikipedia.org/wiki/card_reader
On the other hand, “electronic voting or e-voting refers to both the electronic means of casting a vote and the electronic means of tabulating votes…. This can include punch card systems, optical scan voting systems, Direct-Recording Electronic (DRE) and Internet voting.” See http://www.sourcewatch.org/index.phptitle=electronic_voting.
Electronic voting machine can then be described as a device or machine by which electronic vote can be cast without the use of ballot papers. Examples of such machines are punch card systems, optical scan voting systems DRE and Internet voting.
From the foregoing, it is apparent that the electronic voting machine and the card reader are two different devices that are not necessarily deployed together for all purposes. The further import of which is that electronic voting or the use of electronic voting machine for voting is not the same thing as using the card reader to determine the identity of voters in the process of accreditation of voters. What Section 52(2) prohibits as indicated earlier is the use of electronic voting machine but not the use of card reader for accreditation of voters and that is where it stops. Thus, for all intent and purposes, a card reader simply verifies and authenticates the identity of the voter.
To further buttress the distinction highlighted above, a card reader is not an electronic voting machine but is a machine to be used for accreditation of voters only before the actual voting. A distinguishing factor is that in electronic voting, ballot papers are not used and cannot be used, but the forthcoming 2015 general elections are ballot paper-based. The use of card reader for the purpose of accreditation hastens the process as accreditation of a voter does not take more than a few seconds. The use of the card reader is based on the use of the Permanent Voter Cards (PVCs) of which fake and purloined PVCs can be easily detected, and this will assist in preventing certain electoral malpractices and assist in ensuring free, fair, credible and peaceful elections across the country.
It should be noted that none of the above-mentioned methods or technologies by which e-voting can be done is being deployed by INEC for the purpose of voting during the 2015 general elections. The implication therefore is that INEC is not engaging in electronic voting which is what Section 52(2) of the Electoral Act 2010 actually prohibits. The law is that what is not prohibited is permitted. According to the Court of Appeal in Ojo Bolarinwa Theophilous v. Federal Republic of Nigeria (2012) LPELR-9846 (CA),
The basic canon of interpretation or construction of statutory provisions remains that what is not expressly prohibited by a statute is impliedly permitted.
Thus, since the use of card reader for the purpose of accreditation of voters is not prohibited by the Electoral Act, same is definitely permitted.
Furthermore, accreditation of voters is not the same thing as casting of vote as a person may be accredited without presenting himself to vote. The difference between accreditation and voting is underscored by Section 49(1) and (2) of the Electoral Act 2010.
Section 49 (1) states that a person intending to vote with his voter’s card, shall present himself to a Presiding Officer at the polling unit in the constituency in which his name is registered with his voter’s card.
Section 49(2) states that the Presiding Officer shall, on being satisfied that the name of the person is on the register of voters, issue him a ballot paper and indicate on the Voter Register that the person has voted.
The meaning of the above is that the process of presenting oneself to a presiding officer with one’s voter’s card and the process of checking of a voter’s name on the voter’s register including the ticking of the name constitute what is referred to as accreditation. In order to separate accreditation from actual voting, the INEC Guidelines and Manual for Election Officials provides that accreditation shall hold between 8.00 am and 1pm or such time as the last person on the queue finishes while , voting commences at 1.30pm or so soon thereafter when accreditation must have been completed till the last person concludes.
It is hoped that the elements stuck to the past would liberate themselves from the twigs of yesteryears and allow this commendable step aimed at fixing our electoral troubles.
The Chief Justice of Nigeria (CJN), Justice Mahmud Mohammed, has warned magistrates against allowing themselves to be used by politicians to scuttle the electoral process.
He also advised the authorities of the Independent Corrupt Practices and other related offences Commission (ICPC) to be thorough in its investigation and support its cases with cogent evidence to avert delays in the prosecution of corrupt cases.
Justice Mohammed, according to a statement by his media aide, Ahuraka Yusuf Isah, spoke in Abuja at the weekend when representatives of the Magistrates Association of Nigeria (MAN) and ICPC visited him.
The national executives of MAN were led by its Acting National President, Chief Magistrate Victoria Isiguzo.
“I must urge you to shun corruption and unnecessary affiliation with the political class or politically exposed persons, who may not hesitate to turn you into instrument of intimidation or use you to remove his or her rivals from circulation during this year’s election cycle,” the CJN told the magistrates.
The CJN in January, while inaugurating members and chairmen of electoral tribunals, handed out a similar warning to judges.
He urged the magistrates to stop imposing stringent bail conditions, which indirectly had contributed to the congestion in the nation’s prisons.
He urged them to desist from indulging the police in granting pre-trial detention of suspects because in most cases, the police were ill-prepared to prosecute their cases.
The CJN noted that many people were being held in custody without charges, while others were detained pending further investigation, otherwise known as “awaiting trial”.
He observed that a number of people were being detained on first information reports which, upon examination, might operate as holding charge, thereby allowing the prosecutor fish for more evidence to back up their trial, while the accused persons languish in custody.
“A corollary to this is the imposition of such bail terms, which an accused has no real hope of meeting. I wish to use this medium to counsel magistrates to judiciously and carefully exercise their discretion to remand and consider alternatives to detention where possible, and to set reasonable bail terms as appropriate,’’ he said.
The CJN said effort was on to ensure proper recognition of magistrates in the constitution as judicial officers.
He said: “Magistrates perform judicial functions and they are bound by the Code of Conduct for Judicial Officers, but Section 318 of the 1999 Constitution (as amended) does not recognise them as judicial officers.
‘’Consequently, we are including proposals to the National Assembly that the magistrates be formally considered as judicial officers as defined under Section 318 of the Constitution, given the undeniable relevance of our Magistracy to justice dispensation in the country.’’
The CJN told the ICPC delegation led by its Chairman, Ekpo Nta, that the commitment of the Judiciary to speedy dispensation of justice led to the introduction of Practice Directions in 2013 to fast-track major crimes and corruption cases in addition to designating some judges/courts to deal mainly with economic crimes and corruption cases.
Justice Mohammed advised the commission to avail itself of these rules and the designated courts so as to ensure that corruption and economic crimes cases were promptly heard.
The CJN advised the commission to strengthen its investigation and prosecution units and support charges with evidence for speedy trial of cases.
