As a major stakeholder in the electoral process, the Nigerian Bar Association must play a crucial role in shaping the processes and outcome of the April 2011 elections. It has a moral, social and constitutional mandate and obligation to the Nigerian people to lead the way and show the light that will lead to the conduct of free, fair and transparent elections.
It does not have and is not permitted to enjoy the luxury of remaining aloof or unconcerned with the processes leading up to the elections. It cannot remain or afford to be silent in the face of monumental constitutional and legal changes and challenges in the electoral process. Silence in the circumstances of the dynamics of Nigerian politics will amount to a violation of its constitution and charter with the Nigerian people. The Bar at the National and Branch levels must therefore play a crucial role in setting the agenda of political discourse and proactively pointing the way out of very challenging situations.
These assertions are made against the backdrop of the fact that the April 2011 elections in Nigeria will be tough and challenging for all the stakeholders in the electoral process. The political parties are conducting their primary elections under a new and challenging electoral framework and the primaries have been characterized by violence, threats of violence, rigging and outright manipulation of the process.
The political landscape is also characterized by platform prostitution on account of genuine, perceived and or opportunistic political posturing with the consequent changes to the dynamics of political equation in some states. The nation is also faced with the task of conducting a new registration of voters. Previous registration exercises have caused pain and anguish to the Nigerian people as politicians and political parties manipulated the voters register and padded same with fake names and names of inanimate objects.
There is also the challenge of heightened insecurity in so many parts of the country. There are serious cases of kidnappings, religious and ethnic crises, politically motivated killings, the importation and distribution of light weapons to political thugs, bombings and the threats of more bombings and a general climate of fear and insecurity.
Given its strategic position in the society, the Bar must give and provide leadership to the major stakeholders in the electoral process by developing the necessary template for the conduct of credible elections in a temperate environment. The Bar must be the undisputed driver in making sure that the constitutional and legal framework for the election conforms to national, regional and international standards.
It must put in place mechanisms for checkmating those that may want to compromise the voters register. It must put in place measures aimed at monitoring all aspects of the electoral process including measures to make sure that the votes of the people remain the only determinant in conferring legitimacy to an elected office holder.
To perform this role effectively, professionally and ethically the leadership of the Nigerian Bar Association at the national and branch levels must be abreast of and follows issues in the electoral process. It must be abreast of changes in the constitutional and legal framework for the elections and how these changes affect the dynamics of the election and the sovereign right of the people to determine who governs them.
The Bar must also develop a strategic action plan on tracking changes and strategically intervening in the electoral process through advocacy, monitoring and evaluation.
The Bar Association at the National and Branch levels must be politically and legally proactive because as at now there is palpable confusion as regards the constitutional regime under which the April 2011 is anchored. This is because on the 23rd day of November, 2010, the Independent National Electoral Commission released the time table of activities leading to the April 2011 elections.
The time table was released at a period when the National Assembly claimed that the 1st and 2nd amendments to the Constitution had come into force while a Federal High Court sitting in Lagos held that the 1st amendment was inchoate without Presidential assent.
The National Assembly appealed the ruling of the Federal High Court but by some stroke of magic, the President of the Senate and the Speaker of the House of Representatives on the 10th day of January 2011 forwarded the 1st and 2nd amendment to the Constitution to the President for his assent. The President assented to both documents on the same day.
The question that begs for an answer is whether the 1st and 2nd amendments are part of the operative constitutional framework for the April 2011 elections having come into force when the processes for the elections were already underway. It is also doubtful whether the 2nd amendment is a legal document since the 1st amendment must come into force before another Bill can amend it. There are also key issues in the 1st amendment are innovative and at the same time controversial and the Bar must analyse them and determine how they will impact on credible elections.
Furthermore, the Electoral Act 2010 amended the Electoral Act, 2006. It brought into being a new electoral regime in so many respects and attempted to plug some of the loopholes in the electoral process. Some of the amendments are quite progressive while some of the provisions are problematic and will challenge the will and intellect of the major stakeholders in the electoral process. The Act brought about a new regime in the conduct of political party primary elections; the sequence of elections; the conduct of elections, announcement of election results, political parties changing candidates and the resolution of electoral disputes.
Given these changes in the constitutional and legal framework for the conduct of elections and the changing political landscape and electoral dynamics, the leadership of the Nigerian Bar Association at the National and Branch Level must more or less memorize and be abreast of the core changes in the constitution and the Electoral Act, 2010.
They must have knowledge of the functions of the Independent National Electoral Commission as spelt out in the Third Schedule to the Constitution of the Federal Republic of Nigeria and the Electoral Act, 2010. They must know that Nigeria has a total of 774 Local Governments. They must know that each Local Government is divided into electoral wards. They must know that Nigeria has a total of 8, 752. They must know that Nigeria has a total of 990 House of Assembly Constituencies, 360 Federal Constituencies, 109 Senatorial Districts and 120,000 registration units.
The Bar Association has a Rule of Law Committee and an Election Working Group. Both must work in tandem and ensure that the electoral process conforms to regional and international standards. The Rule of Law Committee must have a template for scrutinising all laws passed in relation to the election. It must scrutinise all rules and regulations made by the Independent National Electoral Committee and all the Political Parties relating to the conduct of elections and the conduct of the affairs of their political parties.
Where the rules and regulations are ultra vires or made male fides or offends the principles of the rule of law and due process, the Bar Association must protest and suggest alternatives including the publication of alternative guideline, rules and regulations. The Bench mark of the Association should be the African Charter on Democracy, Elections and Governance.
The Bar must also act proactively and be the standard bearer and a powerful voice on issues around elections and the electoral process. It has a responsibility to monitor the voters’ registration exercise and make sure that the events of the past do not bedevil the present.
It has a responsibility to monitor Party Congresses and Conventions as well as the elections and issue reports on same.
The Bar has the largest spread than any other civil society group or organisation and has the capacity to deploy lawyers far and wide to source for any information and monitor any process. This accord with its fundamental objective of promotion and support for law reform and the promotion and protection of the principles of the rule of law and respect for and enforcement of fundamental rights, human rights and people’s rights.
The Bar must carry out sustained and aggressive sensitization programme of its members and the general public on key issues and consideration in the registration of voters and the general elections. It can do this through press conferences, television and radio advertisements and appearances and road shows. The Bar can in this wise assist the law enforcement agencies in training their personnel on issues around the Constitution and the law relating to the election security. The Bar can also assist in the training of ad hoc staff of the Independent National Electoral Commission on the law and the constitution and this can enable them act professionally and ethically.
The Election Working Group of NBA can also set up a web site where laws, rules, guidelines and regulations guiding the general elections can be assessed. The Branches of the Association can use such a medium to update on the events in their various states relating to preparations for elections and impediments to the electoral process. The Branches can send reports and such reports will be analysed and used in the issuance of monthly updates on the electoral process.
The Election Working Group must also organise a training program for key officers in the various branches who will in turn replicate same in their branches. These branches will be properly programmed and primed to monitor all aspects of the electoral process. Ensuring good governance is part of the mandate of the Bar Association and part of its social responsibility.
The Election Working Group must also set up discussions with the security agencies to ensure a secure environment for the elections. It should set up meetings with traditional and religious leaders and other leaders of thought. It must drive the program for electoral justice by ensuring that the constitutional and legal framework for electoral dispute resolution is fair and just to all. It must not fight shy of suggesting amendments that will improve the climate of elections in Nigeria. The Bar Association cannot hide under any other group to do this because it has a specific mandate and must be seen to act independently. It can collaborate with other groups so long as it retains its voice and is not subsumed under a different agenda and ideological viewpoint.
Barrister Festus Okoye
Coordinator, Independent Election Monitoring Group (IEMG).