Electoral reform and the Federal Executive Council

By Reuben Abati

THE decision of the Federal Executive Council on the recommendations of the Justice Uwais-led Electoral Reform Committee (ERC) is important more for what is rejected, rather than what is accepted and in the forefront, is the sincerity or otherwise of President Yar'Adua about electoral reform. The question indeed should be posed: how truly sincere is the President on the question of electoral reform?

The Federal Executive Council must not be under any illusion that its resolutions are in any way final. Although there are to be referred to the Council of State for advice, and the National Assembly for aspects that require Constitutional Amendment, the key issues have been presented as if these were the final words on the matter. Certainly not. The least that President Umaru Yar'Adua can do is to pay careful attention to public opinion. Reforming the electoral framework, to ensure the integrity of elections cannot at any stage, be the exclusive responsibility of government, or a matter for the assertion of individual authority.

The Federal Executive Council has rejected the ERC's recommendation that election disputes be concluded within six months of the conduct of elections, on the na�ve ground that the present system whereby electoral disputes oftentimes run for two or three years after the elections is good for a "better dispensation of justice to the aggrieved". So much ink has been spilled on this subject since 1999, the only possible explanation for the FEC's position is that it is absolutely self-serving. A key item of the debate on electoral reform has been the fervent demand that all disputes should in fact, be resolved before inauguration, to prevent the untidy situation whereby persons with stolen and illegitimate mandates enjoy an illegal access to power and authority to the discomfiture of the rightful owner of the mandate.

The more classical examples in this respect include the upturning of Gubernatorial elections in Edo, Ondo, Anambra (in the Ngige case) and the recent order of re-run of elections in 10 local governments in Ekiti state. It is a trite point that justice delayed is justice denied. The logic of the FEC here is that where justice is delayed, the cause of the aggrieved is better served. Their position beggars belief. The fruit of the status quo which the Federal Executive Council is determined to keep, is such that in many states of the Federation, governance is halted abruptly as a new Governor, a new party and a new team assume power. Clearly, it is the people that are short-changed, especially as there have been reports of departing Governors and their appointees struggling to clean out the treasury before taking their exit.

In the 2007 electoral process, the judiciary had tried to improve on the omission with regard to the timeous determination of election petitions in the Electoral Act 2006 by giving Practice Directions to quicken the pace of justice dispensation. But even this has not helped. What is more useful is for the courts to complete all the cases, expeditiously within a time frame. Making this a matter of law should also send a strong signal to lawyers who seek all kinds of technical subterfuge to delay the justice administration process. How is the interest of the aggrieved served through long delays? It is true that state Governors begin their terms afresh, after having been giving victory by the Court, in election petition cases. But in the case of legislators, given the fixed term of each legislative Assembly, a triumphant petitioner, can only complete whatever period is left in the tenure of the Assembly to which he or she has been elected. Is this justice then?

The Federal Executive Council has also voted for the abolition of State Independent Electoral Commissions (SEICs). Every election, in their reckoning, should be conducted by INEC, whose Head Office is in Abuja, the Federal Capital Territory. This was the recommendation of the ERC as well. The request that SIECs should be abolished may not be unconnected with the manner in which state Governors and their agents have hijacked the State Electoral Commissions. In virtually every state, the outcome of local council elections are predetermined in favour of the incumbent Governor, or the dominant political party because the so-called State Independent Electoral Commissions are organs of the ruling party. But by abolishing the SIECs, questions are bound to be asked about federalism. A counter-argument could point to a number of issues: INEC conducts state elections, or that SIECs use INEC's voters register.

But there is contained here, a further over-centralisation of state institutions and a reinforcement of the established drift towards unitarism. The bigger fear is that the unitarisation of electoral processes could become a platform for further derogations from the federal principle. What the SIECs need perhaps is reform, along the same lines recommended for INEC, the objective of which would be to make them truly independent.

The Federal Executive Council, in relation to INEC, insists that the President will retain the power to appoint the Chairman of INEC. Although the composition of the INEC Board has been opened up to include a Deputy Chairman, nominees from civil society groups and the six geo-political zones, the suggestion that the INEC chair will be appointed by the President; undercuts the government's declared support for the independence of the electoral commission. The fact that the appointments will be screened by the National Assembly notwithstanding. The ERC had recommended that the Chairman of INEC should be nominated by the National Judicial Council (NJC). The Federal Executive Council's counter-argument that this will amount to a violation of the doctrine of separation of powers is mischievous.

The key issue is ensuring that the composition of INEC is divorced completely from any trace of partisanship. By recommending the NJC as the body most suited to recommend persons for the INEC Executive, the ERC was obviously informed by practices in other jurisdictions. When the Federal Executive Council insists that the President should appoint the INEC chairman, the same way in which he appoints the Inspector-General of Police, it invariably reduces the same independence which it seeks to ensure by accepting that the funding of INEC should be a first line charge on Consolidated Revenue, and that its composition should become broad-based and democratic. There are other inconsistencies.

What must be made clear, which is not so clear at the moment, is that no member of the INEC executive must have political party affiliations. It may also be necessary to appoint more than one Deputy Chairman. In Ghana, there are two Deputy Chairmen of the Electoral Commission, one in charge of Operations and Finance, and the other in charge of administration. What is further needed is an express provision such as in Article 46 of the 1992 Constitution of Ghana, and Section 3 of the Electoral Commission Act, 1993 of Ghana to wit: "Except as provided in this Constitution or in any other law not inconsistent with this Constitution, in the performance of its functions, the Electoral Commission shall not be subject to the direction or control of any person or authority."

In Ghana, the President, "acting on the advice of the Council of State", appoints the Chairman, Deputy Chairmen and the other members of the Electoral Commission. In Botswana, the Chairperson of the Commission must be a Judge of the High Court, and he is appointed by the Judicial Service Commission, other members are appointed from a list submitted by the All Party Conference (APC), and where the APC fails, the JSC makes its own recommendations. In Mozambique, members of the National Electoral Commission are chosen by political parties, in proportion to their representation in parliament.

In South Africa, members of the Electoral Commission are nominated by a four-member panel comprising the President of the Constitutional Court (as chair), a representative of the Human Rights Commission, a Representative of the Commission on Gender Equality and the Public Protector. The Committee's nominations are then forwarded to the National Assembly. In Namibia, prospective members of the Electoral Commission are required to apply to a selection committee. The principle is that the appointment of members of the Electoral Commission must not be under the control of one man, or a single authority and that bodies outside government must be involved in making nominations.

However, there is no denying the obvious fact that the Federal Executive Council seems to have agreed in more respects with the Electoral Reform Committee, with its approval of the following recommendations: the unbundling of INEC, the adoption of Open Secret Ballot system, financial independence of INEC, approval of independent candidacy, reduction of the number of tribunal judges to three, from five (expedient, but not a sound decision), 10-year ban on convicted politicians, disclosure of the source of funding by political parties, and award of grants only to the parties with 5 per cent of votes. It is worth pointing out that the FEC is silent on a recent court ruling, which upheld the rights of Nigerians in diaspora to vote in local elections.

Nothing has been more demonstrated than the urgency of the need to re-design the architecture of Nigeria's electoral system. There are many issues requiring Constitutional Amendment - a clear-cut assignment for the National Assembly. With elections due in less than two years, there is, it appears, a constraint of time in the horizon. Constitutional amendment is a long process requiring the input of the Houses of Assembly in the states. How soon would the legislature embark on this assignment, with the seriousness that it requires? And will the state legislatures support the abolition of SIECs?

In the long run, redesigning the electoral framework is only one aspect of the big challenge that Nigeria faces. The environment for democratic contestation is in need of reform. Nigerians generally have lost confidence in elections. Their confidence needs to be rebuilt. A starting point is to guarantee the people's right to choose their own leaders, to express themselves freely, and to ask questions about how they are governed. Another issue is the readiness of the professional political elite to ensure the proper implementation of the electoral framework, and to respect the people's will. Much of what is wrong with Nigerian democracy is a question of attitude and not exclusively a matter of legal design.

Robot  # 1 | 12.03.2009 23:35

Electoral reform and the Federal Executive Council By Reuben Abati THE decision of the Federal Executive Council on the recommendations of the Justice Uwais-led Electoral Reform Committee (ERC) is important more for what is rejected, rather than what is accepted and in the forefront, is the sincerity or otherwise of President Yar'Adua about electoral reform. The question indeed should be posed: how truly sincere is the President on the question of electoral reform? The Federal Executive Council must not be under any illusion that its resolutions are in any way final. Although there are to be referred to the Council of State for advice, and the National Assembly for aspects that require Constitutional Amendment, the key issues have been presented as if these were the final words on the matter. Certainly not. The least that President Umaru Yar'Adua can do is to pay careful attention to public opinion. Reforming the electoral fra...Read the full article.

olusiji  # 2 | 13.03.2009 02:02

It cannot be easy for President Yar'Adua to have migrated this far from fraud to legislating against graft. Handed a huge loot by a master thief and enjoying every minute of the benefits, the man has tried so far to mark the sand giving significant distance between the thief and the receiver of stolen goods. I congratulate his inadequate efforts so far. I thereafter commend the next proceedings to the Nigerian people. Only they can amend Yar' Adua's ammendments. I am not terribly bothered by a partisan president appointing the umpire. This is not good but it is not so troubling to me given the recent intervention of the judiciary in some cases. But how can justice be served when a thief is allowed to enjoy the peoples goods for some time and even use the proceeds to corrupt justice further. That is why the recommendation rejecting judicial decisions before swearing in becomes nebulous. We must reject and fight this particular paragraph.

emenanjo  # 3 | 13.03.2009 07:46

"much of what is wrong with Nigerian democracy is a question of attitude and not exclusively a matter of legal design." People who benefit from a particular social order or arrangement rarely go all out to effect a qualitative change. The PDP is a commercial venture and not a political party. We should even thank God that the white paper came out from the government, but how white the paper will be is another matter. My hunch tells me nothing good will come out of the whole razzmatazz. Rebranding Nigeria and Nigerians should start from the war against indiscipline {WAI}.That policy should be brought back. There is nothing wrong in bringing back a good policy. {WAI} will partly help to address our attitudinal problem.

UncleTisha  # 4 | 13.03.2009 09:15

=olusiji;336504>It cannot be easy for President Yar'Adua to have migrated this far from fraud to legislating against graft. Handed a huge loot by a master thief and enjoying every minute of the benefits, the man has tried so far to mark the sand giving significant distance between the thief and the receiver of stolen goods. I congratulate his inadequate efforts so far. I thereafter commend the next proceedings to the Nigerian people. Only they can amend Yar' Adua's ammendments. I am not terribly bothered by a partisan president appointing the umpire. This is not good but it is not so troubling to me given the recent intervention of the judiciary in some cases. But how can justice be served when a thief is allowed to enjoy the peoples goods for some time and even use the proceeds to corrupt justice further. That is why the recommendation rejecting judicial decisions before swearing in becomes nebulous. We must reject and fight this particular paragraph. @Olusiji, I believe the Supreme Court has given judgement that Yar'adua was validly elected, even while acknowledging that there were irregularities in the process. To view every issue from the prism of the flawed election is, IMHO, not really helpful in the process of nation building. George Bush was helped out by pregnant and hanging chads in the first election but i'm not sure he was ever referred to as an illegitimate president. Having said that, i agree with your sentiments that all judicial decisions should be resolved before swearing in. Cheers!

gun ho commando  # 5 | 13.03.2009 10:29

The judicial arm of the government is seen by all to play less partisan politics hence appointing the electoral coomission chairman should be reserved for it. The system concentrates absolute powers on the president Removing the state elecoral commissions is moving from unitarianism to absolute totalitarianism. Whoever must be elected or gets elected at the federal, state, and local government levels must owe allegiance to Abuja. Nigerians must opt for true federalism.

ocnus  # 6 | 13.03.2009 11:58

With respect, the problem is not who appoints the head of INEC, the problem is with Iwu. He is a fraud and incompetent. He is a man with no principles and capable of anything, including delaying and leaving the ballot papers in South Africa during an election. He would still be a fraud and incompetent even if the Archangel Gabriel announced him with a golden trumpet and a fanfare. The process of appointing him pales to insignificance when one considers that such a man could ever be appointed at all.

i-go-better  # 7 | 13.03.2009 15:04

Why can't the Nigeria Media pick up from where Saharareporters stopped? Dr Abati, why not use The Guardian's Media machine to look into the claim that; 1. Iwu was hand-picked by Andy Uba for a hatchet job; 2. He parades fake certificates; 3. He falsely claimed to have a cure for Ebola fever: Because if these are true, no White Paper will be able to clean a man with such baggage and who, considering the calibre of people that always rule Nigeria, will always be in conscientious hostage to whoever is in power. If you guys in the media compromisingly fail to unmask a character as questionable as this who will always be appointed into high profile offices by high profile criminals that rule Nigeria, like the former president, running commentary on white paper, black paper, yellow paper, etc of some doggy reform by a doggy president is, to my mind, perverse and unfortunate. If the efforts of Saharareorters were complemented by the rest of you in the Media houses in Nigeria, we may never have come to this tragically designed common ground of confusion.

LAN  # 8 | 14.03.2009 07:48

@ i-go-better Electoral reform is about future elections, and not about this current Chairman - Iwuruwuru. Iwu's widespread fraud is a call to duty for ICPC and EFCC, there is nothing left about Iwu that Nigeria media has not reported.

Enyi  # 9 | 14.03.2009 12:21

"The Federal Executive Council's counter-argument that this will amount to a violation of the doctrine of separation of powers is mischievous" This claim by FEC is highly contentious. The powers given to the President are not sacrosanct. They were given to the President by a group of wise, though not infallible, men and women who drew up the constitution. Since the Electoral Reforms entail ammendment of the constitution, why cann't the power to appoint the INEC chairman be revisited? "The Federal Executive Council has rejected the ERC's recommendation that election disputes be concluded within six months of the conduct of elections, on the na�ve ground that the present system whereby electoral disputes oftentimes run for two or three years after the elections is good for a "better dispensation of justice to the aggrieved" Ideally, it is desirable that petitions should be decided before swearing in. However, justice should not be sacificed for speed. I suggest that lawyers should come up with a proposal that will ensure a speedy justice. In the meanwhile until an alternative is found we should consider the following: anybody who is sworn in but eventually loses at the tribunals should refund all financial benefits he/she might have enjoyed in addition to any other punishment that the tribunals may deem necessary. The bottomline is that electoral fraud must not be rewarded in any shape or form.

omaks  # 10 | 14.03.2009 22:43

In a democratic dispensation, there are always checks and balances. That's the whole beauty of a 'properly design democratic process'. If the Executive arm of government was serious about the reforms of the electoral process, it should not display any fears of erosion of its oversight responsibilities. If out of may functions it concedes to the judiciary the responsibility of choosing the Chairman of INEC it wouldn't necessary be the end of the world. My fear though is even if the executive does oblige the judiciary the opportunity to choose the Chairman of INEC, it still withholds the capacity to interfere and manipulate the direction in which the representatives of the judiciary does sway with its selection. My confidence of the electoral reforms being implimented conclusively has started to wane even before the process gathers momentum, largely because there have already been concerted efforts by the political elite to unearth ways to circumvent the reforms. there is ongoing moves to establish another 'SUPER POLITICAL PARTY', when the reforms clearly indentifies that there shouldn't be more than between 2 and 7 political parties in the country. Secondly, there are also concerted efforts by the state governors of the PDP to hijact totally the machinery of state party politics by abolishing the election of delegates to various levels of party conventions, and replacing such with state governors' cronies and party leader. This in in a bid to exert immense control on the outcome of party elections and decision making, and in the process inadvertently destroying democracy in party politics. Though Reuben Abati points out the need to guarantee people's rights to choose their own leaders, the type of politics being played by State Governors and their cronies in stifling the entrenchment of democracy in party politics is the type of untoward behaviour that largely puts our nascent democracy at risk of hitting the rocks. Even at the highest leves of party politics, it is claring for all to see that the leaders are not comfortable embracing the recommendations of th Electoral Reforms commission, because in implimenting this to the very last letter, tey stand to lose immensely in the political rostrum. Unfortunately, as laudable as the ERC's efforts at sanitising our electoral process is , it appears that there are still a huge amount of work to be done to actualise these recommendations.

---

The conversation continues in our forum. Click here to read all comments

---