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How to purge our electoral
process in Nigeria of the structural flaws that have prevented it from
achieving even modicum credibility is a great concern in the polity today. From
1959 to 2007, general elections in Nigeria have been characterized by malpractices
and controversies. For this reason, early in his administration, President Umar
Yar’Adua set up the Electoral Reform Committee (ERC) headed by retired Chief
Justice of Nigeria, Muhammed Uwais. The ERC has been going round the country in
the last few weeks in two teams collecting ideas on the way forward. While Team
A has visited Maiduguri, Ibadan, Jos, Calabar, Sokoto, and Owerri, Team B has
been to Lagos, Yola, Benin City, Ilorin, Enugu, and Kano. Both teams will end
up at Abuja for the grand finale.
Through it’s public
sittings, the ERC seeks to pool ideas and strategies aimed at breaking the
vicious cycle of electoral disorder, to produce an electoral framework that
will result in elections that are free of violence, bigotry, rigging,
corruption and all other vices that are stultifying the growth of our nascent
democracy, and possibly, to initiate a better and more profound legislation
that will fast-track electoral best practices in our country. The envisioned
reforms are targeted at strengthening our institutional capacity for conducting
transparent elections inorder to restore intergrity to the process.
In this onerous duty, the
Committee will need to identify the fundamental defects in the existing
electoral legislations which provide the axis on which the vicious cycle of
electoral delinquency revolves. The first, for me, is that electoral offenders
are not punished in this country. Although the Electoral Act 2006 makes ample
provisions for punishment of electoral offenders in its various parts and
particularly in Part VIII Section 124-138, our experience in practice is that
the civil dimension of electoral petitions are emphasized to the diminution of
the criminal aspects. Incidentally, the root of this problem is embedded in the
Act. Whereas the Electoral Act 2006 in its First Schedule provides rules
of procedure for election petitions in their civil nature, the criminal aspect
without which the civil may not have arisen in the first place is left open
ended. For one, the Act vests all prosecutorial powers under the Act on INEC by
specifying in S.158 (2) that “prosecution under this Act shall be undertaken by
legal officers of the Commission or any legal practitioner appointed by it”.
For another, the Act vests the critical duty of determining whether to and who
should be arraigned for electoral offences on INEC and the Tribunals and makes
prosecution of electoral offenders mandatory by providing in Part X, S.157 that
INEC “shall consider any recommendation made to it by a tribunal with respect to
the prosecution by it of any person for an offense disclosed in an election
petition.” But INEC carries on as if the prosecution of electoral offenders is
a discretion which the Commission is at liberty to choose whether to exercise
or not. And, who makes this recommendation? By virtue of the 6th
schedule of the 1999 Constitution which expressly provides that the chairman
and members of Election Tribunals shall be serving judges, it is their
lordships that will recommend to INEC! Does INEC act on the recommendation? It
does not! And the reason is obvious.
By it’s impractical
provisions, the Electoral Act 2006 creates a lacuna, a window for electoral
offenders to evade justice. As if to provide more cover for perpetrators of
electoral infractions, the Act goes further in S.41(1) (2) (3) and (4) to
stipulate that a certificate of indemnity be provided to any witness at
an Election Petition Tribunal seen to have exhibited a level of honesty. The
purpose of this immunity is to prevent the testimony of such witness from being
used in evidence against him or her in all criminal prosecutions for electoral
offences except perjury in respect of the testimony. Such a certificate acts as
ground for the court to stay proceeding against such a person or even to award
costs to him!
But there is an even more
curious twist to the hypothetical provisions in the Act: many of the technical
offences listed as electoral offences under the Act can only be committed by
staff of INEC or persons engaged as officials by the commission for the purpose
of elections. S.130 (1) – (6) contain offences in this category: breach of
official duty, failure to report promptly at polling stations on election day
without lawful excuse, failure to discharge his lawful duties at his polling
station, announcement and publication of election result knowing same to be
false or at variance with the signed certificate of return, delivery of false
certificate of return, and release of false results to the news media. Thus,
although S. 144(2) of the Act allows a petitioner to complain about the conduct
of an Electoral Officer, a Presiding Officer, a Returning Officer or any other
person who took part in the conduct of an election in his official capacity as
an agent of the commission and provides that such a person may be joined in the
election petition in his or her official capacity as a necessary party, what
happens where the petition succeeds and the conduct of the officer or agent
provides sufficient grounds for his or her prosecution for electoral offences?
In such a case, what we
have under the Electoral Act 2006 given it’s provision in S.158 (2) earlier
cited is a situation where the indictor and the indictee are one and the same
person: INEC! Can INEC honestly prosecute INEC? That is unlikely to happen; more
so, because the capacity of the legal officer of INEC to prosecute electoral
offenders is limited in practice. Generally, where a statute specifies a
special prosecutor as the Electoral Act 2006 has done, it is only the
Attorney-General of the Federation (AGF) that can validly institute criminal
proceeding in respect of a violation of the provisions of such statute because
the authority of the AGF “to institute, take over and continue, or discontinue
criminal proceedings” derives from the constitution. A legal officer in INEC,
therefore, cannot institute criminal proceedings without the express authority
of the AGF. And the AGF is too busy trying to take over EFCC cases to
bother about electoral offences. Do you still wonder why electoral offenders
are never prosecuted?
By making provisions that
make it hard to bring electoral offenders to book, the Act perpetuates
electoral misconduct because transgressions thrive whenever or wherever
offenders are allowed to go unpunished. Any meaningful electoral reform,
therefore, should accommodate the establishment of an Electoral Offences
Tribunal and, if necessary, the establishment of an Electoral Offences
Commission independent of INEC with powers to monitor, investigate and to
prosecute electoral offenders. In any case, critical review of the Electoral
Act is required to expunge the sections that hamstring the procedure for
prosecuting offenders as well as those sections that reward offenders with
statutory protection and unearned immunity. Unless the Act enables us to go
beyond the essential but purely civil matter of restitution of stolen mandates
to sanction monitoring and punishment of offenders, the cycle of electoral
disorder and impunity may never be broken.
uchebush@yahoo.com;
0805 1090 050
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Posted by Robot| 21.06.2008 14:23