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Restoring confidence in our elections and challenges of democracy in Nigeria(2)

By Awa Kalu

Thus, an illegal association cannot be said to be for the protection of any person’s rights. It is for this reason that there is no association of prostitutes, of armed robbers or of devils. It is also for this reason that section 137(1) of the constitution and other sections dealing with disqualification to elective offices forbid public officers from being members of secret societies.

By virtue of section 318 of the constitution, a secret society is one, the activities of which are not known to the public at large, the names of whose members are kept secret and whose meetings and other activities are held in secret.

In addition, the membership of the secret society must be incompatible with the functions and dignity of any public office under the constitution and whose members are sworn to observe oaths of secrecy etc. That the freedom of association guaranteed by the constitution must be for the protection of legitimate interests is beyond dispute.

For, the Black Law Dictionary defines freedom of association as “the right to join with others, in common understanding that would be lawful if pursued individually’’.

Similarly the Oxford English Dictionary concedes that acting in association means the action of combining together for a common purpose and freedom is said to be the exemption from arbitrary, despotic or autocratic control, independence, the state of being able to act without hinderance or restraint, liberty of action. Liberty of action means that no person can be forced to join an association against his will.

This point was vividly made by Pats-Acholonu, JCA in Nkpa v. Nkume (2001) 6 NWLR (Pt.701) 543 when His Lordship, now of blessed memory, said that ‘Time it was when the law governing the native community was force of custom good or bad and whether repugnant or not. Now in the 21st century we are governed by a living law-the constitutions of older democracies.

No one can force or coerce anyone to join a club, society or group that he does not intend to wish to be a member of.’ ‘It is an affront ‘, as Pats-Acholonu JCA, as he then was, concluded, ‘and an infraction of his constitutional right to use old-age custom that has now been neglected to moribundity to make one acquiesce or become a member of a body that he or she despises. It is atrophy’’.

This point, made so poignantly, ought to serve as notice to the politicians particularly in legislative houses who wish to validate cross-carpeting on grounds that it comes within the concept of freedom of association. There is no absolute freedom and certainly, what is forbidden by the constitution cannot be validated under any other guise having regard to the fact that even fundamental rights and freedoms under the constitution are circumscribed within certain limits.

It is necessary to emphasize that between the decision of the Court of Appeal in Nkpa v. Nkume the Supreme Court in INEC v. Musa supra, is an affirmation of the fact that freedom of association is a necessary index of democracy and inevitably, of constitutional government.

This point is also underscored by the provision of section 221 of the 1999 constitution which provides that no association, other than a political party shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election.

Accordingly, membership of a political party in the context of the provisions of section 201of the constitution is significant since other organizations and associations are prohibited from canvassing for votes for any candidate at any political party or to the election expenses of any person at an election. We need not over flog this issue.

Democracy flourishes only when there is rule of law and happily, this is the cornerstone of the multiple point agenda of the present administration.

It is therefore necessary to note that within the regime of the rule of law, provision is made for a right to vote and a right to be voted for. Of course there are ancillary rights such as restrictions of voting to citizens save for known exceptions. The prescription of the age at which a person may vote or be voted for as the case may be, requirements of residency etc are matters that are prominent.

The manner of elections such as whether the election shall be by secret ballot, open-secret ballot, option A4 or the other variables is a matter that is usually taken care of by law. Within the context of democratic norms, freedom of speech, of peaceful assembly and the other political rights of citizens including public officers, prisoners, election officials and military personnel, of Nigerians living abroad and even the participation in the political process by mentally disturbed patients are covered by law. We may assume that the law always has in contemplation disputes that may arise before, during and after elections. It is the Electoral Act that usually takes these matters into account.

Election petitions are usually, a veritable source of discomfort for the electoral process in Nigeria and by extension, for the survival of democracy. While on one hand it may be conceded that legitimate grievances arising from elections are usually settled by petitions at tribunals or the regular courts as may from time to time be determined by the enabling laws, it cannot be denied that petitioners also promote uncertainly in the outcome of the contest and generally, raise the political temperature.

It is for this reason that several months after the last general elections, far too many petitions are left unresolved. While some petitions were sent back for retrial, some are still pending on appeal. It cannot be doubted that it is not a major hallmark of political stability for a person who holds a high political office to spend an unreasonable time in the tribunals or courts awaiting a decision as to whether or not he is a legitimate occupant of the office to which he was supposedly elected. Regrettably, this practice of testing each election in the tribunal has matured into a cultural trait of its own.

Thus, in the aftermath of the elections held in 1979, virtually all the results concerning gubernatorial and legislative houses elections were contested in the affected constituencies across the federation. This scenario was replicated in 1999, 2003 and in 2007. As already pointed out, the political heat usually generated by election petitions has not really been measured but it appears to me that the electoral process and indeed, the polity, may be better off if a politician who has contested election and lost, may lick his wounds and wait for another day. The electoral process will for sure, be nurtured by this kind of for-bearance.

However, one may subscribe to recent argument that a high quality election challenge may have the dual value of exposing corruption in the electoral process and at the same time, enriching the law especially with regard to electoral jurisprudence’. In terms of exposing the flaws in the electoral process, Buhari v. Obasanjo (2005) 13 N.W.L.R (Pt. 941) 1 is a case in point.

In that case, Belgore JSC, as he then was, observed that the petition holds record for its number of respondents, witnesses, exhibits and length of time taken to hear and determine it: He added that ‘l think this is due mainly to the Electoral Act, 2002 riddled with absurdities and anomalies, and several inconsistencies making it the clumsiest Electoral Act ever in the history of this country’.

On his part, Pats-Acholonu, JSC, lamented that ‘we may have to evolve any methodology in framing future Electoral Acts to make trials very short otherwise we risk having the present state of affairs coming up all the time. A situation where an election petition lasted more than 2 years for a 4 year presidential term leaves very much to be desired.

It is an affront to the rule of law seen from an activist and progressive view point of mind: Justice Acholonu, even from the bench, was frustrated with politics and advised that ‘anyone without a profession except politics must have nothing to do with politics in whatever form. Above all let budding politicians leave jobless people who now turn into thugs as supporters alone, so that more harm will not be done to electoral process!

There is no doubt that the dialogue on way and means of  improving the electoral process must continue mainly because of the prevalent belief that both the process leading to the choice of candidates and the election proper are not usually carried out in an entirely satisfactory and transparent manner. Most candidates for elective office would rather not be subjected to party primaries.

Rather, they would prefer to be arbitrarily selected or anointed. The godfather will always be at play – at least in the minds of the average politician. It cannot be doubted that the best way to assuage the concerns of those who despise the political process is to make the procedure for choosing flagbearers a little more certain and some-what reassuring for all concerned.

The entire electoral process must be rid of unwanted cogs in wheel of progress such as rigging and falsification of results. Tom Stopperd, the Czech born British dramatist notes that it’s not the voting that’s democracy, it’s the counting: In support of this view, Professor Ben Nwabueze argues that ‘’… elections rigging undermines another cardinal principle of democracy; the principle that the welfare of the people being the object of government, victory at an election must be related and linked to the ability to secure and promote the people’s welfare, and that a government which has not performed well in this respect forfeits all claims to have its mandate renewed: In order to avoid electoral mischief, actors on  the political stage must learn to abide by the rules and refuse the temptation to succumb to selfish tendencies.

Selfishness in the political arena means nothing other than that a politician should not feel satisfied simply because an untoward procedure has favoured him or her. Any politician worth his weight should protest wherever and whenever the playing field is not level. All proven cases of election mischief such as bribery, treating, thuggery and all other forms of electoral fraud must be eschewed and when practiced, dealt with through the due process of law.

Perhaps, it is fitting to conclude by repeating what late Hon. Justice Pats-Acholonu advised in his contribution to the Supreme Court decision in Buhari v. Obasanjo, supra.’ ‘To ensure the non- repeatal of what happened in some parts of the country in 2003, there must be massive education of the electoral officers who will take part in future elections. There must be state-wide enlightenment programme educating the masses to their rights as to how the citizen who are sovereign can exercise their franchise freely, unmolested and undistributed.

There must be de-emphasis on money. It is important to demonstrate to the citizenry what incalculable harm corruption has done in this country so that at election time they should learn to shun people who try to buy their votes’. ‘more importantly; he counselled, ‘Our security men should have a series of workshops to learn that their allegiance is to the constitution and should learn to practice what police in developed nations do. Politics in Nigeria should not be a do or die affair, l agree.


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