Tag: Inec

By Ezenwa Nwagwu

The appointment of the chairman of the Independent National Electoral Commission (INEC) has long been a subject of debate in Nigeria’s democratic discourse. Some have argued that allowing the president to nominate the INEC chairman compromises the commission’s independence, fuelling calls for reforms, including the recommendation by the Justice Uwais Electoral Reform Committee report that the National Judicial Council (NJC) or another independent body should handle such appointments.

While these concerns are valid in their own right, it is my opinion that the real issue is often misdiagnosed. So, the crux of this discourse is to stir up a conversation that expands the discussion around who should appoint the INEC chairman, and hoping that the conversation leads to a selection process that is acceptable.

Few months from now, we will move into the political season, where most conversations will have political and partisan colouration. So, for me, now is the best time to initiate meaningful conversations when heads are still calm.

Indeed, while the yearning of many of the proposals on appointment of INEC leadership is to insulate the process from executive interference – a goal we can all agree on – the key issue is whether this concern is being addressed the right way.

The debates, I believe, have often overlooked a crucial question: Is Nigeria’s electoral process flawed because the president nominates the INEC chairman, or is the real problem the failure of oversight institutions to do their job?

Now, let me attempt to explain why this question is necessary. There is a widespread misconception, particularly among Nigerians who are not invested in the electoral process, that the president singlehandedly appoints the INEC chairman. In reality, the process is not that simple, it involves multiple layers of scrutiny.

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The process involves the president nominating a candidate for national chairman and national commissioners as the case may be. The nominees are sent by the president to the Department of State Services (DSS) for security screening. The DSS profiles the nominee and submits a report on their suitability. The president takes the names to the Council of State for review. The nominee’s credentials and DSS report are presented to the Council of State, which provides advisory input. Based on their advice, the president sends the names to the senate for confirmation. The senate screens and approves.

Given this multi-step process, the key question is: Can the president singlehandedly manipulate the entire layers of scrutiny, the DSS, the Council of State and the National Assembly to get an “unqualified candidate” appointed?

The second question is – if such manipulation of the DSS, the Council of State, and the National Assembly by the president is possible, is he not also capable of influencing the NJC?.

The answer to these questions lies in the failure of oversight institutions to diligently execute their duties.

The Council of State for instance, is composed of individuals with vast political and legal experience, who are not seeking political office. According to Section 153(1)(b) and Third Schedule, Part I(B) of the 1999 Constitution (as amended), the Council of State comprises: The president, vice president, all former presidents and Heads of State; All former Chief Justices of Nigeria; president of the senate; Speaker of the House of Representatives; all state governors and the Attorney General of the Federation.

These are individuals with vast political and legal experience, who are not seeking political office. If they fail to properly scrutinize and advise against an unsuitable nominee, then the problem is not with the process but with institutional integrity.

Although the council’s advice is not binding, it plays a crucial role in guiding presidential decisions on national governance, and provides recommendations on important issues such: The appointment of the INEC chairman and commissioners, the appointment of the Chief Justice of Nigeria and other judicial officers, pardons, reprieves, and the exercise of the prerogative of mercy.

However, on the part of the National Assembly, it has a constitutional responsibility to carry out oversight. The question is: Does the National Assembly have power to reject a nominee from the president? The answer is yes, the National Assembly has the power to reject nominees. A clear example was the rejection of Lauretta Onochie due to concerns over her partisan background.

The Senate Committee on Electoral Matters has a duty to investigate nominees’ past affiliations and competencies. Do they carry out this responsibility during screening of nominees? This is a question they will need to answer.

It is important to state that the screening process is expected to be quite rigorous, often requiring bipartisan support for nominees to be confirmed. This means that senators from different parties, such as the ruling party and the opposition parties must work together and agree to confirm the nominee. This ensures that the nominee has broad support and is not simply being pushed through by one party.

The multi-party composition of the National Assembly following the 2023 elections, presents an opportunity for robust scrutiny of the INEC chairman nominee. It is expected that the opposition parties will be vigilant and vocal during the screening process, raising concerns and objections as necessary to ensure the integrity of the appointment process.

Also, for those asking that the NJC be allowed to appoint the INEC chairman, my challenge is: do we outsource the weaknesses of the oversight institutions and then pass that on to another institution that has no proof that they have been inoculated against the same weaknesses?

Advocates for NJC appointments argue that the judiciary is more insulated from political influence. However, judicial appointments in Nigeria have also been questioned for their non-transparency. If the NJC is susceptible to political interference, will shifting INEC appointments to it guarantee impartiality?

Moreover, there is also a constitutional concern: INEC is an independent commission established by the constitution, just like the NJC. Can one commission legally appoint leadership for another? Such a change would require constitutional amendments, raising concerns about feasibility and unintended consequences.

My point is, let us not, in trying to solve one problem, create more problems. For me, the appointment process itself is not inherently flawed—the real challenge is how we deal with the weaknesses of the institutions that have oversight responsibility on those appointments and ensuring a transparent and credible selection.

My argument is that the independence of INEC is not just about who appoints its leadership but about whether institutions tasked with oversight are doing their job.

Instead of shifting the responsibility of appointment to another body which may not be immune to political influence, we should be asking: how do we strengthen the already existing institutions to perform their oversight functions effectively and ensure accountability in the appointment process? If the DSS conducts thorough background checks, if the Council of State provides objective assessments, and if the National Assembly rigorously vets nominees, then the issue of partisanship in INEC appointments would be minimized.

My second point is that the argument that INEC lacks independence solely because the president appoints its leadership is overly simplistic. The true test of independence lies in institutional integrity and functionality.

This takes me to the second aspect of my discourse which includes our approach to elections.

Take for instance the constitution mandates that INEC should receive its budget one year before an election to ensure financial independence. But does INEC always receive its funds on time? Who is ensuring compliance? The same institutions responsible for enforcing these rules are often the ones failing in their duties.

I will say the major challenges we have with our elections are majorly attitudinal and not necessarily about legislation. Political parties, politicians, security agencies, civil societies, media and citizens, we must embrace a new attitude towards our elections.

Ultimately, strengthening institutions and embracing a fact-based approach will do more for electoral integrity than merely shifting appointment powers from one body to another.

•Nwagwu, is executive director, Peering Advocacy and Advancement Centre in Africa (PAACA).

• By Opatola Victor

Elections serve as the cornerstone of democracy, providing legitimacy to governments and ensuring the active participation of the electorate in governance.

As emphasised by Sarah Birch in her work, Electoral Malpractice (2011), free and fair elections devoid of manipulation of rules, manipulation of voting and manipulation of voters are not merely procedural requirements but fundamental conditions for a functioning democracy.

However, beyond the act of casting and counting votes, the processes that precede elections are equally crucial in safeguarding electoral integrity. Among these processes is the meticulous documentation of sensitive electoral materials, a legal requirement enshrined in electoral laws worldwide.

In the Nigerian context, Section 73(2) of the Electoral Act, 2022, mandates that the Independent National Electoral Commission (INEC) record the quantity, serial numbers, and other particulars of result sheets, ballot papers, and other sensitive electoral materials before elections commence. Section 17(c) of the INEC electoral guidelines also provides the same thing.

These statutory provisions are designed to prevent electoral malpractices such as ballot stuffing, multiple voting, and the unlawful substitution of result sheets. Failure to comply with this requirement raises significant questions about the transparency and legitimacy of an election.

The obligation placed on INEC by Section 73(2) of the Electoral Act, 2022 and Section 17 of the INEC Guidelines, is neither optional nor discretionary. The Supreme Court, in multiple decisions, has underscored that the statutory provision governing electoral processes must be strictly adhered to.

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In Augustine v. INEC (2024)10 NWLR 409, the apex court reaffirmed that the requirement to document electoral materials before the commencement of voting is a fundamental safeguard against post-election disputes. The principle that emerges from this and similar decisions is that non-compliance with this provision is not a mere technical irregularity but a substantive defect capable of invalidating an election.

Further reinforcing this legal position, it is trite law that where the law mandates a public body to perform an act in a particular manner, failure to comply with that directive renders the act legally questionable.

This principle, derived from the Latin maxim expressum facit cessare tacitum (express mention of one thing excludes the implication of another), shows that where the law explicitly requires a step to be taken, failure to do such raises legal issues.

While courts have consistently emphasized strict compliance with electoral laws, the doctrine of substantial compliance remains a central consideration in determining the validity of elections.

Section 135(1) of the Electoral Act, 2022, provides that an election shall not be invalidated by non-compliance unless such non-compliance substantially affects the outcome. This principle, famously articulated in Ojukwu v. Yar’Adua (2009) 12 NWLR (Pt. 1154) 50, ensures that trivial deviations from procedural requirements do not disrupt democratic processes.

However, the jurisprudence surrounding substantial compliance has evolved to recognize that some procedural breaches strike at the very heart of electoral integrity. In Agagu v. Mimiko (2009) 7 NWLR (Pt. 1140) 342 the Supreme Court held that certain statutory infractions that goes to the root of the election itself cannot be mitigated by the doctrine of substantial compliance.

Thus, the failure to document sensitive electoral materials prior to voting raises significant concerns, as it creates uncertainty about the legitimacy of the materials used during the election.

Another aspect of the electoral Act that has been interpreted strictly by the Supreme Court is the issue of IREV. In recent electoral disputes, the role of the INEC Result Viewing Portal (IREV) in verifying election results has become a contentious issue. The Supreme Court, in Lawal v. Matawalle (2024) 12 NWLR (Pt. 1951) 33 provided clarity on the matter. The court held that Clauses 38(i) and (ii), 48(a), and 93 of the Regulations and Guidelines for the Conduct of Elections, 2022 expressly provide for IREV as part of the election process, particularly for verifying the correctness of INEC’s hard copies of election results.

The Court of Appeal erred in declaring that IREV was not part of the election process, contradicting earlier decisions such as Oyetola v. INEC (2023) 11 NWLR (Pt.1894) 125 and Atiku v. INEC (2023) 19 NWLR (Pt. 1917) 761. By reaffirming IREV’s role, the Supreme Court underscored its importance in ensuring electoral transparency and accuracy.

This decision aligns with international best practices. In Raila Odinga & another v Independent Electoral and Boundaries Commission & others [2017] KESC 31 (KLR) the Supreme Court of Kenya nullified a presidential election on the basis of procedural irregularities, holding that “electoral integrity is not merely a function of outcomes but of processes leading to those outcomes.”

This judgment emphasized that an election conducted in violation of prescribed procedures cannot be deemed valid, regardless of the margin of victory.

The failure to record and mark sensitive electoral materials before elections has significant legal and practical consequences. One of the most critical implications is the compromise of electoral transparency, which is a fundamental pillar of democratic governance.

Transparency ensures that electoral processes are free, fair, and credible. As Larry Diamond noted in The Spirit of Democracy (2008), the legitimacy of democratic institutions is fundamentally weakened in the absence of transparency. Also in his popular article, The Democratic Rollback: The resurgence of the predatory state, Larry Diamond emphasised that before democracy can spread further, it must take deeper root where it has already sprouted.

For democracy to triumph, the natural predatory tendencies must be restrained by rigorous rules. These predatory tendencies mentioned by Larry Diamond are what the section 73 of the Electoral Act, section 17(2) of INEC guidelines and IREV seeks to tame. When the Independent National Electoral Commission (INEC) fails to mark electoral materials properly, it creates opportunities for manipulation and fosters distrust in the electoral system.

This distrust and lack of transparency eventually leads to low participation and low turnout, and with low turnout, low participation, and low public engagement, our democracy will eventually become what Bernard Manin in the Principles of Representative Government (1997) called “audience democracy.”

Beyond transparency concerns, the absence of prior documentation significantly increases the susceptibility of elections to fraud. Without a proper record of electoral materials, it becomes easier to introduce unauthorized ballot papers and result sheets, a situation that has historically plagued Nigeria’s electoral process.

Allegations of ballot stuffing and result tampering have frequently surfaced in past elections, further reinforcing the need for strict documentation and security measures. Legally, non-compliance with electoral laws can have severe consequences, including the nullification of election results. Nigerian courts have consistently held that substantial non-compliance with electoral laws can render an election invalid. In Buhari v. INEC (2008) 19 NWLR (Pt. 1120) 246, the Supreme Court underscored the principle that any non-compliance affecting the sanctity of votes could warrant the annulment of election results.

Failure to adhere to statutory requirements, such as those outlined in Section 73(2) of the Electoral Act, exposes elections to legal challenges and increases the likelihood of judicial intervention.

Another major consequence of failing to document electoral materials is the erosion of public trust in electoral institutions. A strong democracy relies on citizens’ confidence in the fairness and competence of electoral bodies. Scholars all over the world have posited that the strength of democratic institutions is measured by the trust citizens place in the electoral process.

When INEC fails to meet its statutory obligations, it creates perceptions of bias, inefficiency, and possible misconduct, ultimately undermining the credibility of elections and weakening democratic stability.

In the end, democracy dies not necessarily in the hands of dictators with guns, or generals or corrupt elites, but democracy dies through failure of rule of law and adherence to stipulated rules and electoral guidelines. The duty on INEC is a sacred obligation not only to itself but to the country, because its duty is a major guardrail protecting our democracy.

For the foreseeable future, INEC needs to be alive to this obligation by obeying its own regulations and the Supreme Court judgement concerning the role of IREV as a critical part of the election process; and their inescapable duty to defend the integrity of elections by ensuring they record in prescribed forms the details of sensitive election materials.

  •Victor is a legal practitioner and writes from Abuja.