Many politicians can do anything to win elections. In most cases, they defy the law to achieve their aim. What can be done to stop them from further polluting the electoral process? Eric Ikhilae examines the propriety of the call for a body to prosecute electoral offenders.
Democracy presupposes the right of the electorate to choose their leaders.
It is also assumed that the right of the electorate to elect their leaders is exercisable at elections, conducted under a peaceful and secure environment, devoid of threat, intimidation or compulsion.
Unfortunately, since the re-establishment of democratic governance in 1999, the electorate have been consistently denied this right.
Elections are not conducted under peaceful atmosphere. Insecurity pervades at every election circle, resulting in destruction of property, killings and, ultimately, the manipulation of the outcome.
The recurring violence witnessed during elections has consistently denied the electorate the needed atmosphere to freely exercise their democratic right of electing their leaders.
Why accountable system remains elusive
The nation’s electoral history is replete with cases of violence, impunity and wilful subversion of the electorate’s wishes by major actors in the election process. Election is seen as a war, an observation confirmed by the reported declaration by a former President that the next general election was a do-or-die affair.
Observers attribute the inability of the country to ensure accountable electoral process to the existence of a political space, created and nurtured by a growing population of elite, to whom morality and decency mean nothing.
They argue that the high stake involved in electoral contests, fuelled mainly by the tradition of winner- take-all, in an environment where politics has become the most lucrative vocation, accounts for why the electoral process is dominated by impunity.
This position finds support in a recent report on electoral impunity, released by the National Human Rights Commission (NHRC), where it is argued that the country’s inability to ensure an accountable electoral process has negatively impacted on the electorate’s faith in the nation’s leadership recruitment process.
The report notes that “the absence of transparency and accountability in elections and electoral matter increase incidents of electoral fraud, manipulation, violence and other corrupt practices.
“It further undermines the credibility of the electoral process and prevents Nigerians from enjoying their constitutional rights to take part in political and electoral activities, notwithstanding that huge public revenues are expended on such exercises.
“In short, it increases electoral impunity and leads to declining faith in the electoral system in Nigeria.”
Efforts at curbing electoral impunity
This realisation, perhaps, informed why the late President Umar Yar’Adua constituted the Presidential Committee on Election Reform (otherwise known as the Uwais Committee), chaired by former Chief Justice of Nigeria (CJN) Justice Mohammed Lawal Uwais.
After an extensive review of the electoral process, the committee observed, among others, that elections were characterised by “a prevailing atmosphere of impunity.”
To address this, the committee, in its 2008 report, recommended, among others, the establishment of an Electoral Offences Commission, to be saddled with investigating cases of electoral infractions and prosecution of suspected culprits.
The committee set up by the Federal Government to investigate the 2011 post-election violence, headed by Sheikh Ahmad Lemu, also made a similar recommendation in its 2011 report.
This administration also set up, in October 2016, the Constitution and Electoral Reform Committee, headed by a former Senate President, Senator Ken Nnamani.
The committee, which also considered the Uwais Committee’s report, recommended, among others, the need for an independent body to prosecute electoral offences. Today, a minimum of two Bills are before the National Assembly for that purpose.
At a recent stakeholders’ forum on election held in Abuja, the Chair, House of Representatives Committee on Electoral Matters, Mrs. Aishatu Jibril Dukku, confirmed that two Bills were pending before her committee on the issue.
The first, she said, is the Bill for an Act to establish the Nigerian Electoral Offences Commission, which shall, among others, “examine all electoral offences connected with, or incidental to the commission of an electoral offence.”
The second, she noted, is a Bill for an Act to establish the Electoral Offences Tribunal, to be situated in Abuja, and which shall be a superior court of record, with an equal status with the High Court. The Bill, she added, also provides for the exclusive jurisdiction of the tribunal to try offences and provide for its composition and powers.
Another notable effort made before now to address electoral impunity is the “End Electoral Impunity Project” by the NHRC. It is a two-phased project, which analysed judgments and decisions of the various tribunals and courts in cases on the 2007, 2011 and 2015 elections.
In 2016, the NHRC released its report of the first phase, which examined decisions on petitions relating to the 2007 and 2011 elections. The 284-page report, among others, established how electoral impunity curtails the enjoyment of citizens’ right to political participation and fair hearing.
The report, like the final one of 118-page, released on March 28, also identified individuals and organisations indicted for electoral offences in the various court/tribunal judgments analysed.
Speaking at the event, then NHRC Acting Executive Secretary Mrs. Oti Ovrawah noted that the nation’s electoral history revealed that elections had been characterised by violence and other criminal acts which have impacted negatively on the credibility and outcome of the process.
This state of affair, she added, has also affected free and safe exercise of right to political participation by the citizens resulting, in several instances, in the emergence of political leadership without public legitimacy.
Mrs. Ovrawah said the “End Electoral Impunity Project” was a bold effort by her organisation to address impunity in the electoral process and galvanise state action for guaranteeing the rights of all eligible Nigerians to participate in the governance of the country in a free and safe atmosphere.
She regretted that the list of those indicted by the courts, sent by the NHRC to the Attorney-General of the Federation and state Attorneys-Generals, since 2016, for further investigation and prosecution, has been left unattended to till date.
Why electoral impunity persists
Despite the various provisions in the Constitution, Electoral Act and other laws, proscribing certain conduct and prescribing punishments, a negligible number of electoral offenders have been prosecuted since 1999.
This, observers argue, results from the fact that electoral impunity is deliberately sustained by those who manage the system and who are the major beneficiaries of the nation’s flawed electoral process.
They further contend that the lack of political will on the part of those in authority accounts for why the nation’s electoral process will remain unaccountable for a long time to come. Various factors, they note, account for this.
One, they note, is, as aptly captured in the Uwais Committee report, where it was stated: “The reason electoral offences go unpunished in Nigeria is as a result of the failure of the respective the Attorneys-General to prosecute offenders, especially if those involved are members of the ruling party or were acting in the interest of the ruling party.”
Another reason, observers note, is as shown in the two reports by the NHRC, where it is revealed that officials of the various agencies directly involved in the electoral process, particularly the police and INEC, often assist in compromising the system.
This, they argue, accounts for why the police, saddled with investigating crimes, will conduct shoddy investigations and INEC, empowered under Section 150(2) of the Electoral Act to prosecute election offences, are hardly motivated to move against electoral offenders.
But, in his contribution at a public hearing on the Bills for the establishment of the Electoral Offences Commission, INEC Chair, Professor Mahmood Yakubu attributed his agency’s failure in electoral offences prosecution on lack adequate capacity, including the powers to arrest and investigate, which informed why INEC is dependent on the police.
He noted: “Without the capacity to make arrest and investigate violations, the prosecutorial role is severely hampered. INEC cannot effectively focus on the role of prosecuting electoral offenders given the variegated responsibilities assigned to it under the Constitution of the Federal Republic of Nigeria and the Electoral Act 2010 (as amended).”
Again, while speaking last week in Asaba, Delta State, Prof Yakubu echoed similar views. He argued that since INEC’s legal officers rely on the outcome of the investigation conducted by the police in prosecuting electoral offences, the commission’s lack of statutory powers to make arrest and investigate violations has seriously impeded successful prosecution of electoral offenders.
He added: “In many parts of the democratic world including Nigeria, the electoral management body is saddled with the additional duty of prosecuting election offences.
“This means that the electoral umpire must be truly independent in both financial and administrative capacity in order to effectively and efficiently execute the functions. This is surely not applicable to Nigeria where INEC is still much dependent on the executive arm of government for its budgetary allocations.
“In order to effectively investigate and prosecute electoral offences, there is the need for capacity building, adequate funding and manpower. These are presently challenges being faced by INEC,” he said.
Yakubu called for the prompt establishment of the Electoral Offences Commission, as recommended by the Uwais and other committees, which he believes will effectively address the problem associated with the prosecution of electoral offenders.
Electoral Offences Commission to the rescue?
Opinions are however divided among legal practitioners on whether the establishment of an Electoral Offences Commission would curb the culture of impunity and manipulation in the electoral process.
While many see the creation of a commission to prosecute election offences as a step in the right direction, some called for caution, while others described it as an avenue for political patronage, which could equally serve as an agent of witch-hunt, ready to serve the interest of the government of the day.
There is also the suggestion that there is the need for a robust legal framework to aid the prosecution of electoral offenders and address the challenges identified by Yakubu, even where the commission is eventually created.
A Senior Advocate of Nigeria (SAN), Adeniyi Akintola argued that much as such a commission is desirable, the courts should be firm in taking decisions in cases where there arel infractions, because according to him, the courts were partly to blame for encouraging electoral impunity.
Akintola cited a case in which the courts validated an election despite the evidence that the supposed winner bribed a Resident Electoral Commissioner (REC).
He noted despite the overwhelming evidence of bribery provided by anti-graft agencies, the courts, including the Supreme Court, held that the fact the REC was bribed was not sufficient to nullify the election.
Akintola said rather than the offender being persecuted, he got away with his crime and assumed office as governor. Akintola noted: “Our judges are being intimidated and are afraid of blackmail.”
Another SAN, Ferdinand Orbih, said electoral offences persist because the government lacks the will to prosecute offenders.
“How many Attorneys-General will be bold enough to prosecute the governor’s party men for electoral offences? Very few indeed,” he said.
He backed calls for the establishment of electoral offences commission, saying INEC was “over-burdened” with monitoring of political parties and conduct of elections, among others.
To a Professor of Law, Robert Ndakwusi, the establishment of an Electoral Offences Commission can only be a welcome relief where it is properly constituted under a strong leadership, with the capacity to send a clear signal to individuals and political parties that they would henceforth be held accountable for any election-related offences.
Ndakwusi said: “Unfortunately, there are fears already being expressed that, as is the case with all government agencies, such a body will not be immune from interference in the course of its duties.
“Questions are equally being asked about such body can be made independent of the executive arm of government, as well as the integrity of its members. Such questions are predicated on the fact that no public institution in the country has truly been independent of the political party in power.
“For me, I will recommend that the body, if created, should be detached from the operational control of the Presidency and state governors, but granted operational and financial independence to enable it effectively combat electoral offences.” Ndakwusi said.
