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For independent INEC: Adopt judicial model (2)

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By Afe Babalola

Last week I discussed the role of the electoral body in ensuring the election of leaders who will transform the country. I identified a truly independent and impartial electoral body as an absolute necessity in bringing this about. This week I intend to highlight changes that can be adopted to make the electoral body more independent.

AS stated earlier, Nigeria operates the independent model of electoral body and it is for this reason that the name of Nigeria’s electoral commission contains the word “Independent”. However, many continue to argue that it is only independent in name. Yet an electoral commission of this model is expected to be independent of the executive body and be able to manage its own budget. Other countries which operate the independent election commission model include Australia, Canada, India, Indonesia, Jordan, Pakistan, Poland, Romania, South Africa, Sri Lanka, Thailand and the United Kingdom. Other models as identified last week include the Mixed, Executive, Judicial and Branch models.

Process of appointment and removal

In my estimation, one of the problems militating against the real or actual independence of the electoral body is the fact that key officers of the body are appointed majorly by the head of the executive in the person of the President. This is largely due to our penchant to copy wholesale, models from other countries without firstly identifying if that model will suit local circumstances. Thus we have copied and adopted the “independent” model without bothering to find out if its adoption is well suited for Nigeria. It is similar to the manner in which Nigeria adopted and continues to operate the American Presidential system of government despite its glaring inadequacies and expensive nature. Sections 154 and 157 of the Constitution of the Federal Republic of Nigeria 1999 (As Amended) which contain provisions for the appointment and removal of members of the Commission read as follows:

Prof. Mahmood Yakubu, Chairman of the Independent National Electoral Commission (INEC)

154.(1) Except in the case of ex officio members or where other provisions are made in this Constitution, the Chairman and members of any of the bodies so established shall, subject to the provisions of this Constitution, be appointed by the President and the appointment shall be subject to confirmation by the Senate.

(3) In exercising his powers to appoint a person as chairman or member of the Independent National Electoral Commission, National Judicial Council, the Federal Judicial Service Commission or the National Population Commission, the President shall consult the Council of State.

  1. (1) Subject to the provisions of subsection (3) of this section, a person holding any of the offices to which this section applies may only be removed from that office by the President acting on an address supported by two-thirds majority of the Senate praying that he be so removed for inability to discharge the functions of the office (whether arising from infirmity of mind or body or any other cause) or for misconduct.

(2) This section applies to the offices of the Chairman and members of the Code of Conduct Bureau, the Federal Civil Service Commission, the Independent National Electoral Commission, the National Judicial Council, the Federal Judicial Service Commission, the Federal Character Commission, the Nigeria Police Council, the National Population Commission, the Revenue Mobilisation Allocation and Fiscal Commission and the Police Service Commission.

The above provisions without a doubt confer enormous powers on the President with regards to who may be appointed as a member or Chairman of the Independent National Electoral Commission. While it is true that the Council of State and the Senate have respectively been assigned roles to play in the process, it cannot be disputed that the ultimate power resides in the President. The problem with this is that the President, as an elected official may not always be able to rise above partisan interests in making appointments even though that is what is expected of him.

In this respect, I note the recent admonition of the ruling party to some of its elected officials who will be participating in some yet to be concluded elections, that President Muhammadu Buhari will not intervene illegally on their behalf in the process. This is highly commendable as it is exactly what is expected from the President. However, this announcement is itself confirmation that some individuals may actually be nursing the misplaced expectation or hope that Mr. President is capable of intervening and will indeed intervene on their behalf. This hope or expectation in my view must necessarily be rooted in the knowledge that the chairman and members of the Commission owe their appointment to the President and that as such, these persons can be influenced, directly or indirectly by him.

Furthermore, even where the President is able to rise above partisan considerations, the fact that he is able to appoint in the first place, may yet colour the entire process with an air of impartiality leading to a loss of public confidence in the electoral process. Indeed a few weeks to the last election, the purported posting of a member of the Commission who was alleged to be related to the President brought about some controversy. So even in the absence of evidence that partisan considerations were at play in making appointments, perception alone may still call into question the integrity of the electoral process thereby affecting public confidence and where public confidence is lost, for real or imagined reasons, the essence of the entire process becomes lost. Voter apathy will set in.

It is for the above reason that I personally would prefer the adoption of the the Judicial Model of electoral commission in which the election commission is closely supervised by and ultimately responsible to a special “electoral court”. Countries with such a model include Argentina, Brazil and Mexico. The advantage of this is that it will provide once and for all, an Electoral Court, the creation which many Nigerians have advocated to tackle the commission of electoral offences. This is the way to go and it is my expectation that in the months to come, the legislature will undertake a review of the entirety of Nigeria’s electoral system and come up with measures aimed primarily at ensuring not only the transparency of the polls but also importantly, the independence of the body that by law is required to organise them.

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