INTRODUCTION:
Regardless of the political machinery they operate, most modern societies now have formal and informal mechanisms for regulating and legitimising access to public power. Societies where representative governance has taken root have gone further, entrenching universal adult suffrage and, with it, regular free and fair elections to key public offices. To complete the democratic paraphernalia, these societies tend to have special umpires to ensure that elections mandated by the ethos of democratic governance are not a sham and that the results thereof are a genuine result of the exercise of universal adult suffrage. The umpires in question are electoral umpires; they are state or quasi-state apparatuses with varying measures of autonomy constituted in or for any given society to fulfil functions and purposes relative to the conduct of such elections as required in free democratic societies.
2.As electoral umpires are tools for exercising universal suffrage, the level of independence they enjoy is intricately connected to the enjoyment of the right of franchise. The independence of electoral umpires is therefore an important factor in any assessment of a country’s democratic credentials. However, two juxtaposed but intertwined factors are germane to the independence of electoral umpires: the aspirations of predominant political force and the rule of law. The one determines whether there is universal suffrage while the other ensures that electoral umpires are kept on legal watch which guarantees the level of independence the country’s level of political development is able to allow the electoral umpire.
3.In the United Kingdom (UK), the conduct of elections is by an independent body set up by parliament known as the The Electoral Commission. The Commission regulates party and election finance and sets standard for well-run elections. It supports a healthy democracy, where elections and referendums are premised upon principles of trust, participation and are under no political influence.
4.The major functions of the Commission include registration of political parties, ensuring that the populace understand and follow the rules on party and election finance, publish details of where parties and candidates get money from and where and how the money is spent, ensure that people understand that it is important to register to vote, know how to vote and indeed vote at elections.
The commission is headed by 10 commissioners supported by a Chief Executive and an Executive team. The Commissioner are accountable to Parliament but are independent of political parties.
5.The Commission is largely perceived to be independent of the Government in power and its decisions are usually accepted by political parties and the populace as the true outcome of elections.
This commentary is, however, a brief assessment of the independence of electoral umpires. Its objective is to survey the effect of predominant political influence on the independence of the electoral umpires we have had in Nigeria’s quest for democratic governance.
The relevance of impartiality to electoral umpireship:
6.Whatever political theorists may say about its propriety, Nigerian courts have held that the primary purpose of an election is to determine the wishes of the majority of the electorates. See GWADABAWA V KWANGI [1998] LRECN 219 at 222. To this end and in a plethora of cases, the appelate Courts in Nigeria –i.e. the Court of Appeal and Supreme Court of Nigeria– have declared the overriding importance of the actual and perceived independence electoral umpires. Thus in INEC V. OSHIMOLE [2008] 3 LRECN 649, the Court of Appeal frowned at a separate Appeal filed by the Independent National Electoral Commission (INEC) against the Ruling of a Tribunal. The Court of Appeal had the following to say about the duty of agencies and officials charged by law to conduct elections and the impropriety of such agencies and/or public officials appealing against decisions resulting from legal contests between candidates at elections:
“INEC as I said earlier has the exclusive power to conduct elections and declare results; it does not share that power with anyone. It conducts the elections and its mandate is to see that the elections are free and fair. To that end, INEC is expected to and must be seen as an impartial umpire. “Impartial” means “not supporting one person or group more than another; neutral; unbiased” –See Oxford Advanced Learners Dictionary’, 6th Ed. INEC and its officials appear to have derailed from their role in this case.” [Emphasis supplied]
7.A similar observation was made by the Supreme Court in AG FEDERATION V ABUBAKAR & 3 ORS [2007] 4 SC (PTII) 62 where it was held as follows:
“Also the Independent Electoral Commission (INEC) by its statutory existence is an independent body with constitutional powers to conduct elections in Nigeria. It must not only be an umpire, it must be seen, in the eyes of reasonable men, to be an impartial umpire in the conduct of an election. INEC must never by act or omission place itself in a position where imputations of partiality in favour of one party against another party is levelled against it. Neutrality must be the watch word of the body – it must always remain fair and focused.”
8.The above stated position has in the recent past been taken to heart by the Independent Electoral Commission (INEC) and in so doing, INEC has largely restrained itself and refrained from contesting the decisions of first instance Tribunals in elections conducted by INEC. This has gone a long way in also enhancing the credibility rating of INEC in the electoral process.
9.This cannot be said of State Electoral bodies that are saddled with the conduct of elections into Local Governments. In the 2011 Local Government Election, conducted in Lagos State, the Lagos State Independent Electoral Commission (LASIEC) vigorously contested every decision by the Local Government Election Tribunals where other political parties than the Ruling Political Party in Lagos State were declared as the winner of the Local Government Elections. Appeals were filed by LASIEC and it was a surprise that the Local Government Election Appeal Tribunals constituted by serving High Court Judges in the state did not follow the example and admonition of the Appelate Courts in INEC V OSHIOMOLE (Supra) and A.G. FEDERATION V ABUBAKAR & ORS (Supra).
It is hoped that the Appellate Courts would continue to set the standards and the Lower Courts would take a cue as this would enhance the credibility of the States electoral bodies.
10.From the foregoing therefore, it would seem that the courts in Nigeria equate the independence of electoral umpire to actual impartiality as may be gleaned from the conduct of the umpire.
The integrity and efficiency of the electoral umpire not only affects the conduct of an election but also determines the collective mood of the country before, during and after major elections. Save for the June 12, 1993 presidential election which was adjudged be the freest and fairest in the history of electoral contests in Nigeria. Other elections in Nigeria have been severely criticised by observers, analysts, politicians and social commentators. Some of the criticism are justified while others have remained largely partisan. In reacting to the flawed elections in post-independence Nigeria which ushered Sir Tafawa Balewa as Prime Minister, Chinua Achebe, the late author, poet and acclaimed social critic in his very last major work “There was a Country, A Personal History of Biafra” said as follows:
“Later it was discovered that a courageous English junior civil servant named Harold Smith had been selected by no other than Sir James Robertson to oversee the rigging of Nigeria’s first election “so that its compliant friends in [Northern Nigeria] would win power, dominate the country, and serve British interests after independence”. Despite the enticements of riches and bribes (even a knighthood, we are told), smith refused to be part of this elaborate hoax to fix Nigeria’s elections, and he swiftly became one of the casualties of this mischief. Smith’s decision was a bold choice that cost him his job, career, and reputation (at least until recently)”.
Thus elections in Nigeria began to suffer serious criticisms right from the beginning of Nationhood.
Electoral umpires of Nigeria
11.History teaches that across Africa political life in the pre-independence period must be divided into the pre-colonial and colonial period. Also, as a study of the many well-run African empires were ruined by colonial meddling and interventions. The idea that special bodies are needed to moderate the entrance of suitable persons to wield public office was well known to the tribes constituting Nigeria long before our contact with the West. In the old Oyo Empire for instance, as far as the high office of Alafin of Oyo was concerned, the Oyo Mesi, made up of seven councillors of the empire, performed almost all the functions we might ascribe to any modern day electoral umpires except perhaps the conduct of elections. And so far as the right of a people to shape their political destiny is allowed to flourish, once the selfish interest of imperialists is accounted for it becomes clear that bodies like the Oyo Mesi were only as useful as any electoral umpire constituted to serve the powers that be.
12.However, that was before the imperialists invaded Africa on a self-appointed mission to ‘civilise’. The British divide and rule policy of colonial governance interrupted the primordial systems evolved over time for filling public office and corrupted many of them. The deposition of Oba Ovonranwen and the exiling of King Jaja of Opobo are clear examples. And this is well documented in accounts of political life in the pre-independence period. (See: Gazetteer of Ilorin Provinvce compiled and published in 1929 by The Hon. H.B. Hermon-Hodge -Colonial Resident of Ilorin; Adu Boahen, Topics in West African History [Hong Kong: Longman, 1966] at 136). In summary, governance in the colonial period was generally at the pleasure of the colonialist and, despite the cordon sanitaire of indirect rule, it is now common knowledge that the words democracy and colonialism do not and can never mix.
13.However, in 1923 following the coming into effect of the Clifford Constitution in 1922, elections were held for the first time in Nigeria at which adult males earning up to British 100 shillings and who were resident in Lagos or Calabar were allowed to vote. As the Clifford’s Constitution established no electoral body to conduct elections, the colonial authorities had direct oversight of the electoral process so that before the elections, in exercise of his powers under the Nigeria Legislative Order in Council of 1922, the Governor appointed registering officers in the municipal areas of Lagos and Calabar to issue notices in gazettes to persons claiming to be entitled to be registered as voters.
The electoral umpires at that stage of the colonial venture were therefore the registering officers who were obviously subject to direct control of the colonial government. This was the position until the 1958 Nigerian (Electoral Provisions) Order in Council was promulgated, which created the Electoral Commission of Nigeria which was charged with the responsibility to prepare voters register and conduct elections. It was largely modelled after the British Electoral commission which was earlier discussed.
14.As the foregoing account of electoral umpireship in colonial times reveals, imperial Britain which was the predominant political influence of the time was without doubt the real electoral umpire for Nigeria in the colonial period.
That and the limited franchise granted Nigerians at the time meant that imperial Britain was very much in charge of whatever passed for ‘electoral process’ at that time. It is therefore not surprising that eminent Nigerians have alleged that the British colonial expedition to Nigeria tried to use the Electoral Commission of Nigeria (ECN), established to conduct 1959 elections to impose Northern Nigerians at the helm of affairs after independence. This sentiment was expressed in Chinua Achebe’s book earlier referred to.
After Independence in 1960 the Electoral Act of 1962 was enacted for the whole of Nigeria as its first electoral law. However, the law did no more than re-state the 1958 Electoral Regulations so that the electoral umpire remained the Electoral Commission. After the military coup in 1966, the Electoral Act was suspended and the ECN dissolved so that Nigeria was without an electoral umpire until the 24-man FEDECO1 Federal Electoral Commission (FEDECO) was constituted by the Obasanjo military administration through the Electoral Decree of 1977. FEDECO’s functions included the conduct of elections, delimitation of constituencies and registration of political parties – much the same as the INEC, on paper at least. In 1976, the General Olusegun Obasanjo military administration appointed Chief Michael Ani to be the chairman of FEDECO for the 1979 elections. In 1982 another Electoral Act was enacted for Nigeria which defined the duties of the already existing Federal Electoral Commission (FEDECO) in greater detail.
15.By the end of the second republic, the Nigerian Army had litrally dismantled the country’s political structure and become Nigeria’s predominant political influence. It was under these circumstances that FEDECO was dissolved by the General Mohammadu Buhari junta on the 31st of December, 1983. Another military junta led by General Ibrahim Babangida established the National Electoral Commission (NEC) in 1987 to administer the Juntas transition programme to civil rule. The NEC was hailed as a step in the right direction till Babangida’s painfully elongated transition programme revealed that it was merely a weapon for tenure elongation, a view confirmed when the 1993 elections adjudged to be the freest and fairest election in Nigeria was annulled. The public perception of electoral umpireship was at the lowest after the annulment. Everyone in the country saw Professor Henry Nwosu’s NEC as toothless and unable to assert its independence under Babaginda’s Rule of the gun.
16.In 1993, the Abacha led junta dissolved Bangida’s NEC and, in December 1995, established the National Electoral Commission of Nigeria (NECON) to replace it. The general perception was that the only difference between NEC and NECON were the two last alphabets of the NECON’s acronym. And although NECON conducted elections to Local Government councils and National Assembly, it was common knowledge that NECON had one overriding agenda: to perpetuate Abacha’s military rule by transforming him to a ‘democratically elected president.’ Following General Abacha’s sudden passing in 1998, General Abdulsalam Abubakar’s Administration dissolved NECON and established the Independent National Electoral Commission (INEC) in August 1998. INEC comprises a Chairman and 12 National Commissioners, two members being drawn from each of the six geopolitical zones of the country. Like its predecessors, INEC has been riddled with criticisms and labelled a lackey of whoever wields the reins of power. The same criticism pervaded the era of Professor Maurice Iwu, a fine gentleman but with the odds stacked against him, he could only manage to deliver amidst condemnations particularly from the opposition to the Ruling Political Party.
The perception persisted until the coming of Professor Attairu Jega as head of INEC and the gains of opposition parties in some states of the Federation reduced significantly the barrage of criticism of the Electoral umpire.
17.The current Electoral umpire for National Elections in Nigeria today is the Independent National Electoral Commission (INEC) and it is established by the Independent National Electoral Commission (Establishment) Act Cap 15 laws of the Federation of Nigeria (the Act). Section 4 of the Act spells out the functions of the INEC. These include the organization, conduct and supervision of elections, registration of political parties, monitor the organization and operation of Political Parties including their finances, voter registration and the preparation, maintenance and revision of voters registers, monitoring of political campaigns, provision of rules and regulations governing Political Parties amongst other functions.
18.It is to be noted that Item 22 of the Executive Legislative List under the Part 1 of the Second Schedule (Legislative Powers) of the Constitution of the Federal Republic of Nigeria 1999 as altered provides that the Federal Government and by extension INEC may only conduct election into the offices of the President and Vice President or Governor and Deputy Governor and any other office to which a person may be elected under the Constitution excluding election into a Local Government Council or any office in such council.
19.Section 2 of the Act deals with the membership of the Commission while Section 3 deals with the tenure of office of members. Also contained in the Act are subsidiary legislation dealing with guidelines for elections into offices of the President and National Assembly.
20.While INEC has remained very active in its role as organizer, conductor and superior of elections, its role as designed in section 4 of the Act with regards to monitoring the finances and operations of political parties (Section 4c, 4d and 4e) have been at a low ebb. The independence and impartiality of INEC is not to be measured only during elections but in the manner in which it carries out its supervisory role over the operations and finances of political parties even in between electoral contests. The supervisory role that INEC should play over political parties as aforesaid should be comparable to what the Central Bank of Nigeria (CBN) does with the banks and banking institutions or what other regulatory bodies do within their spheres.
21.INEC must actively engage political parties and supervise their operations and finances. Rules and penalties for breaches must be well defined and spelt out and the interaction must be in public space. This will have a positive impact on the public and improve the perception of the public on the impartiality of INEC. The general public will therefore having perceived INEC as a effective and impartial regulator carry the same mind set into elections. It has been said that the business of politics is too serious to be left in the hands of politicians. INEC must step up its game and improve significantly on its regulatory role.
CONCLUSION
From the foregoing, it is clear that the Electoral Umpires we have had in Nigeria have never really had any measure of independence which would ensure their impartiality. In the colonial times, imperial Britain was the hand beneath the gloves of electoral umpireship. Under the military, the various electoral umpires were either put in place to elongate tenure (Babangida) or to outrightly defeat clamour for democratic governance (Abacha). Under the 1999 constitution, things have not changed much and the INEC is generally considered to be partial and in favour of whoever happens to be the government of the day. Therefore, in accordance with the judicial pronouncements reproduced earlier, it is fair to assert that Nigeria has never really had an independent electoral umpire and the lesson here is the futility of embarking on journey towards democratic self-governance which does not have a fully independent umpire both in laws setting up the body and in the perception of the public. This malaise is not restricted to the National umpire, it is in fact worse with the states electoral bodies saddled with the conduct of Local Government Elections.
ON CHIEF AFE BABALOLA SAN
“I have known Aare Afe Babalola all my adult life and he has always been a reference point for many in the legal profession in Nigeria and overseas. I remember that in 2003, I picked up courage and approached him one evening at Emanuel Chambers. I was straight to the point. I asked for his guidance in my quest to take silk. He asked 3 questions:
1. When I was called to the Bar,
2. How long I had established my own practice
3. The highest fee I had charged as professional fees at the time and lastly
4. If I owned my own residence
I think he was satisfied with my answers and he allowed me to visit his chambers every weekend to discuss my progress until 2005 when I was called into the Inner Bar.
Aare Afe Babalola is not only a colossus in the legal profession, he has also firmly established perhaps the best privately run and funded university in Nigeria, that is, the Afe Babalola University in Ado Ekiti”.
