THE ESTABLISHMENT OF THE ELECTORAL OFFENCES COMMISSION AND TRIBUNAL IN NIGERIA: TOWARDS SAVING OUR DEMOCRACY?
BY MBANG CONFIDENCE, ESQ
ABSTRACT
The administrative foundation of Nigeria’s governance is based on representative democracy; a system of government highly propagated and celebrated by many nations since the 19th century. Election is the driving wheel of this system of governance, therefore, the importance of same cannot be overemphasized. Generally, there is this believe that elections everywhere in the world are not perfect. While we concede; it is our contention that elections should not persist in such chicanery, rather, frantic efforts and innovations should be made to perfect the system. Elections are supposed to be credible, free and fair, but the reverse is the case in Nigeria, and Africa. Electoral offences are being committed occasionally and religiously without any serious consequences, thus, affecting the people’s confidence and faith in governance. The people of many African countries have within the decades renege on the social contract – leading to spates of military intervention. Africa’s Democracy is dying de – die – in – diem – majorly due to the consistent outcomes of elections, therefore the need to ground the assurance of electoral practices by the establishment of a genuine and principle – base Electoral Offences Commission is a necessity. Therefore, while the debate on whether the Independent National Electoral Commission (INEC), should prosecute offenders persist, this article examines the proposed establishment of the Electoral Offences Commission, and advocates for the creation of a special Tribunal to try the offences. The article shall discourse on four aspects of the Bill, and make comments therein. The article also seeks to answer the question as to whether the establishment of the Electoral Offences Commissions would save our dying democracy. It is the contention herein that the independence of the Commission and Tribunal is very germane to its efficiency and effectiveness.
Keywords: Election, Electoral Process, Democracy, Offences, Commission, Nigeria, Africa.
INTRODUCTION
Nigeria have experienced uninterrupted democracy for 24 years, after bidding farewell to successive military administration on the 1stof October, 1999.[1]The conducts of elections being the forerunner of a democratic government has been face with so many issues for determination by the courts. Our courts have been over burdened by election petitions, but the major violators of the law are many a times – left like lily-saints and unpunished for their acts. This has been the case since 1999 through 2003, 2007, 2011, 2015, 2019 and the just concluded 2023 General Elections.[2]
A transitional procedure is supposed to be devoid of all forms of ills that would make the people cast aspersions on the government. There is no single election that have been conducted in Nigeria without allegations of “not being perfect.” The “not perfect syndrome” of elections is simply an ideological ploy that have cocooned a normal sense of thinking and judgement. It is not uncommon to see political parties and their candidates admit to elections being flawed. Former President Olusegun Obasenjo said concerning the victory of his successor in the 2007 Presidential elections, that the outcome represent ‘public opinion’.[3]
While we continue to ponder on the ‘public opinion syndrome,’ it is not good for media outlets to brandish that a flawed elections was won.[4] It technically means, no proper elections was conducted.[5]Even India, the largest democracy in the world, acknowledge the imperfect of elections.[6] But the questions that begs for answer is, whether elections should persevere in imperfections?.
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According to George Bernard Shaw, “An election is a moral horror, as bad as a battle expect for the blood, a mud bath for every soul concerned in it.”[7]Otto Von Bismarck once echoed, “People never lie so much as after a hunt, during a war or before an election.”[8] Basically, the general nature of an election is characterize with so uncertainties due to interest, and these have recurrently led to the commission of offences in the course of the process. The attendant effect of these and bad government is that the people no longer believe in the system because, when democracy becomes demon – crazy, the people react.[9] Little wonder, late Fela Kuti sang, “…I come think about this Democracy! DEMO-CRAZY! CRAZY-DEMO! Demonstration of Craze. If no be Craze why for Africa? As time dey go, things just dey bad. Dey bad more and more…”[10]
In the light of many calls considering the conduct of the Kogi, Imo and Bayelsa gubernatorial elections, the need for the establishment of the Electoral Offences Commission/Tribunal is germane. This article examines the Electoral Offences Commission Bill, and attempts to answer the question on whether the establishment of same may save our dying democracy.
THE JUSTICE UWAIS COMMITTEE REPORT ON ELECTORAL REFORMS: CASTING BACK OUR MINDS
The antecedents of Nigeria’s electoral process till date, is more or less a “political fandango “, it is vicious, but one thing is sure, it shall soon be Uhuru. The electoral climate is filled with impunity and demands urgent innovations. Therefore, it is expedient we cast our minds back to the Justice Mohammed Uwais Elelctoral Reform Report, 2008, for purposes of this discourse.[11]
The committee was formed by Late President Umaru Musa Yar’ Adua, on 28th August, 2007, was comprised of 22-members headed by Justice Uwais. After acknowledging the many ills that bedeviled electoral processes, the committee at paragraph 4.2.27, made its recommendations on the establishment of an electoral offenses commission, as follows:
- Amend Section 174 (c) of the 1999 Constitution such that the constitutional power of Nolle prosequi vested in the Attorney-General of the Federation or of a State does not apply to Electoral offences.
- Amend the Electoral Act 2006 to establish an Electoral Offences Commission to perform the following functions:
(i) Enforcement and administration of the provisions of the Electoral Act;
(ii) Investigation of all electoral frauds and offences;
(iii) Coordination, enforcement and prosecution of all electoral offences;
(iv) Enforcement of the provisions of the Electoral Act, the Constitution of registered political parties and any other Acts or enactments;
(v) Adoption of measures to identify, trace and prosecute political thuggery, electoral fraud, political terrorism and other electoral offences;
(vi) Adoption of measures to prevent and eradicate the commission of electoral malpractice;
(vii) Adoption of measures which include but are not limited to coordination, prevention and regulatory actions; amongst others.
However, like many other reports, this report was not implemented by the federal government. Realistically speaking, maybe some of the recommendations have been featured in the Electoral Act, 2022, but as regards the Electoral Offences Commission, the report was never implemented till date. So many calls for implementation of same fell on deaf ears, we pray the present administration do the needful.[12]
ELECTORAL OFFENCES AND THE ELECTORAL ACT, 2022
The Electoral Act, 2022, came as the long awaited messiah to purge our system, but it failed to address the prosecution of electoral offences. The Act only made provisions for offences, without delving into how to make good what would be made bad at the long run.
Part 3 of the Act dealing with National Register of Voters and Voters Registration, provides for some offences. For purposes of certainty same would be provided without the replication of the provisions.
Section 22: Offences of buying and selling voter’s cards.
Section 23: Offences relating to register of voters.
PART 7 of the Act deals mainly with Electoral Offences, and provides for the following:
Section 114: Offences in relation to registration.
Section 115: Offences in respect of nomination.
Section 116: Disorderly behavior at political meetings.
Section 117: Improper use of voters cards.
Section 118: Improper use of vehicles.
Section 119: Impersonation and voting when not qualified.
Section 120: Dereliction of duty.
Section 121: Bribery and conspiracy.
Section 122: Requirement of secrecy in voting.
Section 123: Wrongful voting and false statements.
Section 124: Voting by unregistered person.
Section 125: Disorderly conduct at elections.
Section 126: Offences on election day.
Section 127: Undue influence.
Section 128: Threatening.
Section 129: Offences relating to recall.
QUERY: In the light of the offences, who, when and how would the prosecution of offenders be a reality?. This question is asked considering the fact that the Chief law officer of the Federation and States are normally members of the ruling party. This should not be construed to mean only members of the ruling party commits electoral offences – No. Favoritism may corrupt the process.
THE ELECTORAL OFFENCES COMMISSION BILL: UNRAVELING THE SOON TO BE – BRIDE.
The 2023 general elections was greeted with the commissions of so many electoral offences. Former Inspector-General of Police, Usman Baba, during an election security review conference with senior police personnel in Abuja, revealed that police recorded and responded to 185 major incidents and arrested 203 electoral offenders, and same were being referred to the Nigeria Police Electoral Offences Desk for onward investigation and prosecution. This was the case in many states.
In 2019, Prof Mahmood Yakubu, lamented that although the commission have the powers to prosecute offences, but it lacks the resources to arrest, and investigate. He recommended that upon prosecution, even the sponsors of the offenders should also be punished. Therefore, the need for the establishment of a unique and independent body to man this responsibility is sacrosanct.
In 2022, the lower echelon of the National Assembly being the House of Representatives,[13] presented a bill titled: ‘A Bill for an Act to Establish National Electoral Offences Commission and for Related Matters, 2022.[14]The proposed legislation had passed first and second readings and subjected for public hearing with only the consideration/adoption of report and third reading – passage left. The Bill seeks to establish a National Electoral Offences Commission (NEOC) that will be in charge of investigating and prosecuting electoral offences created under the Bill, the Electoral Act, or any other law related to Electoral Offences. The Bill comprises of 46 clauses and 7 Parts. We shall only discourse and make submissions on four aspects, viz; the functions of the commission, constitution of the commission, offences and penalties, and the courts with jurisdiction.
FUNCTIONS OF THE COMMISSION: FAR NEAR INDEPENDENT
The function of the commission are provided in clause 6 as follows:
- Investigation of all electoral offences created in any law relating to elections in Nigeria;
- Prosecution of offenders under the bill subject to the provisions of Section 174 of the constitution;
- Liaising with the Attorney-General of the Federation and Electoral bodies in the Federation, security and law enforcement agencies in discharging its duties;
- Maintaining records of all persons investigated and prosecuted;
- Liaising with other bodies within or outside Nigeria involved in the investigation or prosecution of electoral offences;
- Facilitation of exchange of scientific and technical matters and conduct joint operation to adopt measures to prevent, minimize, eradicate the commission of electoral offences throughout the Federation, and;
- Liaison with the Independent National Electoral Commission, the Electoral offences Tribunals, the Attorney General of the Federation and States and other institutions involved or associated in the conduct of elections.
Comments: Clause 6(2) of the Bill makes the prosecution of offenders subject to the overriding powers of the Attorney-General of the Federation. I am tempted to ask firmly, must every prosecution be tied to the Attorney-General who is an appointee of the President? We are not oblivious of the constitutional provisions of section 174, but it is high time, the lawmakers create some exceptions. This commission is too sensitive to be subject to the whims of any political appointee. What do you think?.
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CONSTITUTION OF THE COMMISSION: ENIGMA SMELLS
Clause 2 of the Bill provides for the constitution of the commission as follows:
Clause 2(1): The Commission shall consist of members who shall not be registered members of any political party. Members are to include:
(a). the Chairman (a person who has held office not below the rank of a retired Justice of the Court of Appeal);
(b). the Secretary, and;
(c). representatives of the Federal Ministries of Justice, interior,
Defense and information.
(d). the Inspector General of Police.
(e). the Chairman Independent National Electoral Commission (INEC).
(f). the Chairman, Nigeria Human Rights Commission.
(g). the Commandant General National Security Civil Defense Corp (NSCDC).
(h). Director General, National Financial Intelligence Unit (NFIU).
(i). Director General, Legal Aid Council of Nigeria or their Representatives.
(j). Six Nigerians with cognate experience representing each Geopolitical Zone and at least two of whom shall be women.
Note: Appointment of these persons is to be made by the President, subject to confirmation by the Senate, except the ex – officio members mentioned in clause 2(1)(c – i).
Comments: The selection of persons to man this commission is not a challenge, because at least; we still have some Nigerians with integrity. The albatross of this commission is the powers given to the President to make the appointments. Can we ever have a commission, agency or parastatal in Nigeria that would be free from presidential influence?. The President appoints all members except ex – officio members listed in paras c – i of clause 2(1), and it is the President that appointed those ex – officio members to their initial positions (e.g who appoints the Inspector- General of Police?). So you can see that everything is still tied up to the President. Let us not forget that; “he who pays the piper dictates the tune.”
OFFENCES AND PENALTIES
Part 4 deals with electoral offences, from clause 12 to 32, and the offences are categorized. The bill makes it an offence to violate any provision of the Bill, the Electoral Act, 2022, or any other law in force in the Federation. For purposes of clarity, we replicate the title of the offences without amplification.
Clause 12: Offences arising from violating existing law.
Clause 13: Offences by any Person.
Clause 14: Offences Relating to Register of Voters, Voter’s card, etc.
Clause 15: Offences by election officials.
Clause 16: Impersonation.
Clause 17: Undue Influence.
Clause 18: Bribery.
Clause 19: Punishments and Incapacities of Corrupt Practice.
Clause 20: Perversion of Electoral Justice.
Clause 21: Election official, security personnel not to cause influence
An election.
Clause 22: Prohibition on Disturbing Public Peace.
Clause 23: Prohibition on damaging of character.
Clause 24: Restriction on election campaigns.
Clause 25: Prohibition on Campaign against National Interest.
Clause 26: Prohibition on obstructing votes counting or other acts inhibiting electoral due process.
Clause 27: Certain expenditure to be illegal practice.
Clause 28: Employers to allow employees reasonable period for voting.
Clause 29: Limitation of Political propaganda on polling day.
Clause 30: Offences relating to false information. Offences relating to election expenses.
Clause 31: Prohibition of Hate Speech.
Note: Clause 39 provides for attempts, and makes the punishment to be same as though, the offence was actually committed.
Comments: The penalties for offenders in the Bill are quite commendable, in the sensethat, a would be offender would think twice. The Bill provides for imprisonment, and option of fines or both. For instance, offences relating to restrictions on election campaigns pegs the penalties at 5 years or 10 million naira or both. Gone are the days when laws provide for fines of 20 naira in place of imprisonment.[15]
COURTS WITH JURISDICTION
Clause 33 of the Bill gives the Federal High Court, High court of a State or the High Court of the Federal Capital Territory, Abuja the jurisdiction to try alleged offenders under this Bill. The Chief Judge of any of the aforesaid Courts has the powers to designate a Court or Judge or such numbers of courts or judges as he/she may deem appropriate to hear and determine matters brought pursuant to the provisions of the Bill and matters brought under this Bill shall be given priority over other matters.
Comments:Our courts are overburdened with cases, especially during election period. It is not uncommon to see judges adjourn other matters to attend to election matters that are time bound. Why add to the many burdens of my Lords?. Why not create an Election Offences Tribunal to try the cases?. What do you think?.
RECOMMENDATIONS
In the light of the overall essence of the Bill and it’s provisions, the following recommendations are important for further deliberation before passage:
- Zero Presidential Influence: If we acknowledge the fact that the President is a member of a political party (ruling party), and must have interest whether active or passive in every elections as the unonumero citizen in the polity, then, he should have no influence on the members. If this is so, even the members of the ruling party would be disciplined and refrain from acting unlawfully, illegally and unconstitutionally. The relevant stakeholders should to solace from other climes where some commissions and agency are devoid of presidential influence, and adopt same. Is it not a waste of time for the law makers to provide that the ex – officio members are not to be appointed by the President, when in reality, it is the President that appointed many of the ex – officio to their initial positions prior to being members of this commission?.
- No Subjection of Prosecution to the Office of the Attorney-General of the Federation : The subjection of prosecution by the commission to the office of the Attorney-General, who is an appointee of the President only goes to show how unprepared we are to get the most out of this commission. The Attorney-General is a god unto himself, and not answerable to anybody other than his master – the President. It is likely that prosecutions may not go down well due to favoritism, nepotism, and other administrative bottlenecks in respect of the office of the Attorney-General of the Federation, etc. The stakeholders and the National Assembly should consider this point before passage.
- Establishment of the Electoral Offences Tribunal: The lawmakers should introduce a clause creating a special Tribunal called, ‘’The Electoral Offences Tribunal”, which shall be responsible for the adjudication of matters dealing with such offences. A we need no sermon to be conscious of the fact that our courts are overburdened, some cases span up to 10 – 15, and this is not good for justice.
- Sensitization of Supporters by Political Parties and Candidates: Bearing in mind that it the ordinary supporters that risk themselves in place of pay masters, political parties and candidates should sensitize their supporters on the need to abstain from electoral offences. The punishments should be broadcasted for public awareness.
- Judicial activism: The appointees of the commission and judges of the Tribunal (if realized) should be men and women of integrity, discipline, dedication and determination. There should be men of unblemished character, and refrain from any act whatsoever, that would dent their image. In effect, they are the saving grace of our “dying democracy.”
CONCLUSION
Democracy strives upon the rule of law, and this can only be made realizable when the institutions are efficient and effective. Indeed, the establishment of the Electoral Offences Commission and Tribunal can save our democracy – being the missing link in our electoral voyage through the decades. The Justice Uwais Report on Electoral Reform should be implemented fully, the commission should be devoid of influence from any public officer, if not the saving of our democracy would continue to be nightmares. Therefore, the recent call by organizations and concern citizens should not be swept under the carpet if our dying democracy must not be buried.
REFERENCES
BrainyQuotes.<https://www.brainyquote.com/quotes/otto_von_bismarck_134223>accessed 24th November, 2023.
Dr. Pragya Singh, Electoral Reforms in India: Comparative Analysis with U.S.A. & U.K (Introductory edition- I Year 2013. <https://philarchive.org/archive/PRAERI>accessed 24th November, 2023.
Echoes Of Coups, Coups And More Coups: Which Country Is Next In Africa? By Prof. Mike Ozekhome, SAN, CON, OFR, Ph.D.>https://trojan.com.ng/echoes-of-coups-coups-and-more-coups-which-country-is-next-in-africa-by-prof-mike-ozekhome-san-con-ofr-ph-d/<accessed 24th November, 2023.
Electoral Offences Commission and Electoral Offences Tribunal [HBs 695, 1372, 1427, 753, & 1589 (Senate Bill)].
Implement Uwais report on electoral reforms, don urges FG.<https://punchng.com/implement-uwais-report-on-electoral-reforms-don-urges-fg-2/?amp>accessed 24th November, 2023.
Mojim.<https://mojim.com/usy155705x2x4.htm>accessed 24th November, 2023.
Nigeria’s democracy is thriving; no military coup in 24 years: AUDA-NEPAD<https://gazettengr.com/nigerias-democracy-is-thriving-no-military-coup-in-24-years-auda-nepad/>accessed 24th November, 2023. However, democracy itself is bedeviled by lots of enigmas and challenges.
Report of the Electoral Reform Committee (Volume 1 MAIN REPORT) December, 2008.
Ruling party candidate wins ‘flawed’ Nigerian election.<https://amp.theguardian.com/world/2007/apr/23/chrismcgreal>accessed 24th November, 2023.
The Bill is sponsored by Senator AbubakarKyari.<https://placbillstrack.org/upload/SB220.pdf> accessed 24th November, 2023.
Timelines of election petitions in Nigeria (1999 – 2023).<https://businessday.ng/politics/article/timelines-of-election-petitions-in-nigeria-1999-2023/?amp=1>accessed 24th November, 2023.
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[1]Nigeria’s democracy is thriving; no military coup in 24 years: AUDA-NEPAD<https://gazettengr.com/nigerias-democracy-is-thriving-no-military-coup-in-24-years-auda-nepad/>accessed 24th November, 2023. However, democracy itself is bedeviled by lots of enigmas and challenges.
[2]Timelines of election petitions in Nigeria (1999 – 2023).<https://businessday.ng/politics/article/timelines-of-election-petitions-in-nigeria-1999-2023/?amp=1>accessed 24th November, 2023.
[3]Ruling party candidate wins ‘flawed’ Nigerian election.<https://amp.theguardian.com/world/2007/apr/23/chrismcgreal>accessed 24th November, 2023.
[4] Ibid
[5]Emphasis mine.
[6]Dr. Pragya Singh, Electoral Reforms in India: Comparative Analysis with U.S.A. & U.K (Introductory edition- I Year 2013. <https://philarchive.org/archive/PRAERI>accessed 24th November, 2023.
[7] Ibid
[8]BrainyQuotes.<https://www.brainyquote.com/quotes/otto_von_bismarck_134223>accessed 24th November, 2023.
[9]Echoes Of Coups, Coups And More Coups: Which Country Is Next In Africa? By Prof. Mike Ozekhome, SAN, CON, OFR, Ph.D.>https://trojan.com.ng/echoes-of-coups-coups-and-more-coups-which-country-is-next-in-africa-by-prof-mike-ozekhome-san-con-ofr-ph-d/<accessed 24th November, 2023.
[10]Mojim.<https://mojim.com/usy155705x2x4.htm>accessed 24th November, 2023.
[11]Report of the Electoral Reform Committee (Volume 1 MAIN REPORT) December, 2008.
[12]Implement Uwais report on electoral reforms, don urges FG.<https://punchng.com/implement-uwais-report-on-electoral-reforms-don-urges-fg-2/?amp>accessed 24th November, 2023.
[13]In June 2022, the House of Representatives consolidated about 5 Bills dealing with the establishment of an Electoral Offences Commission and Electoral Offences Tribunal [HBs 695, 1372, 1427, 753, & 1589 (Senate Bill)].
[14]In the Senate, the Bill is sponsored by Senator AbubakarKyari.<https://placbillstrack.org/upload/SB220.pdf> accessed 24th November, 2023.
[15]This is not oil and gas related laws with laughable fines.
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