By Udo Jude Ilo
Electoral fraud has been a recurring problem in Nigeria.
Only rarely has the ballot reflected the will of the people. Rigging puts the control and accountability of office holders and governance beyond the reach of the voters. It undermines the principle at the very heart of democracy.
Since the 2007 election, more than seven gubernatorial elections have been overturned by the Election Tribunal on the grounds of rigging and discredited election process. Each case revealed, on the face of it, reasonable grounds to prosecute perpetrators and beneficiaries of the flawed elections. Sadly, nobody has been successfully prosecuted for electoral malpractice.
Even more troubling, in cases where the Tribunal ruled that elections should be rerun, the fraudulently elected governors used state resources to fund their renewed campaigns. In essence, the legal framework and the electoral environment in Nigeria almost seem to incentivise electoral fraud.
Everyone knows that rigging is wrong. But the truth is that electoral malpractices cannot be curbed by moral persuasion but only by strict application of the penalties provided by law against electoral offenders. Recapturing the sanctity of the ballot requires a review and recommitment by the guardians of our democracy to upholding the principles and provisions around electoral accountability.
Existing provisions on electoral accountability are somewhat weak, both in content and in procedures for enforcement. In some cases institutional capacity to apply such provisions is lacking. Above all, a lack of political will to enforce them makes the situation worse, But nonetheless, we have what we need to make a start…
The primary duty of prosecuting electoral offenders is placed on the INEC pursuant to section 150 of the Electoral Act 2010. But the duty is not exclusively INEC’s. Section 150 is complemented by sections 174 and 211 of the Constitution which empower the Federal Attorney General and State Attorneys General to institute and undertake criminal proceedings against any person with respect to federal laws and state laws respectively.
It is impossible for INEC to exercise its prosecutorial power without investigation, which is the primary role of the Nigeria Police Force under section 4 of the Police Act. In other words, the role of enforcing electoral accountability is a duty shared across the Executive branch, through the Ministries of Justice, INEC and the Police.
Another interesting addition to the institutions involved in enforcing electoral accountability is the Election Tribunal, provided for in section 149 of the Electoral Act. Election Tribunals can recommend prosecution for an offence disclosed in any election petition. This provision suggests an additional route by which to ensure offenders are punished. Sadly, there is no record of any such recommendation by the Tribunals, though this does not prevent INEC from examining court records to see if any electoral crime has been disclosed.
Until now, most of the agencies involved in ensuring electoral accountability have themselves been named or indicted in one way or another as participants in electoral fraud and malpractices. INEC under Iwu was discredited, amid accusations of being a willing participant in rigging elections. The agency cannot prosecute itself. Nor can the Attorneys General whose Government/offices benefited from the electoral fraud. Likewise, as indicted in the Uwais Commission report, the police have been guilty of a pattern of criminal conduct during elections, including: “brutality, intimidation, facilitating the snatching and destruction of ballot boxes.”
In short, the level of corruption within the institutions charged with enforcement has made it almost impracticable to enforce electoral accountability.
We have to get serious about reform. In the long term, there is need to strengthen the provisions around electoral accountability to ensure adequate penalty for electoral crimes. For example, deposed governors or other political office holders should not be allowed to run again where the cancellation of their election result is because of malpractices in which they were involved.
Loss of office, banning from public office and refund of public resources acquired while in office should be included as punishment for electoral fraud. Such far reaching provisions will require the support of civil society and government to become adopted. We must disincentives the tendency of our people to indulge in electoral fraud.
But we cannot afford to wait for new penalties before we act. We do have useful laws and provisions in place and with a critically important election only a few weeks away, they must be used to the best effect possible. The Jonathan administration claims to be committed to improving elections, and the Police Force is trying (so far without much success) to remake itself. Above all, we have new and serious leadership at INEC.
Without further delay, INEC must approach the court to try cases of electoral offence currently in their files. Prof Jega and his team are obviously focused on managing the current elections but they can and should involve the Nigerian Bar Association, NBA, in the prosecution of suspects. Starting now will signal clearly to Nigerians as we move towards April that this time it will not be business as usual.
In particular it is recommended that INEC should:
1. Appoint, designate and inaugurate ahead of the next elections a high level Electoral Crimes Reporting Group with clear terms of reference and the visibility to present a credible threat of prosecutions this time around;
2. Initiate an inter-agency co-ordination process with the Inspector General of Police, the Chief Justice of Nigeria, PCA, the Chairperson of the new ECRG, and the NBA President;
3.As part of the guidelines for election observers, require all observers in their reports to document and submit to INEC any and all incidents of electoral offences;
4. Organise with the Nigeria Judicial Institute/Nigeria Institute of Advanced Legal Studies a training for major judicial officers on electoral offences;
5. Designate an electoral crimes unit within INEC and require all RECs to do the same; 6. Organise a national meeting of INEC and RECs on electoral offences and crimes; 7.Prepare and have prominently all polling stations/registration centres, a bill of electoral offences;
The police must atone for their past sins by providing the necessary forensic back-up to INEC to ensure effective prosecution. It is also very important that government must be seen to stand back and allow investigations and prosecutions to proceed without interference.
Electoral corruption is part of a general malaise afflicting the country. It has become a way of life and a pattern of operations for so long.
Conversely, confronting it will require commitment; courage and fidelity to the spirit of the law. The measures suggested here may not necessarily bring an end to electoral crime. Hopefully, however, they will, in combination, increase the likelihood that this time around, there will be some accountability for some of the most serious breaches of electoral laws. The future of democracy in Nigeria can only be sustained if we restore sanctity to ballot and deterrence to electoral fraud.