Professor Ben Nwabueze (SAN), in this piece, titled, ‘Incidence of Corrupt Practices And Non-Compliance with the Provisions of the Electoral Act during the February/March 2019 general elections’, writes on what he describes as contradictions in the polity.
In addition to the decisive factors of violence and the intimidating presence of armed uniformed military men, another important factor affecting the genuineness of votes ascribed to candidates is corrupt practice and non-compliance with the provisions of the Electoral Act. This factor is important because, like the factors of violence and the intimidating presence of armed uniformed military men, it determines the character of an election as a democratic election, which may be here defined as the exercise of a right guaranteed by law to every citizen of the prescribed age to vote in freedom for the choice of leaders at an election fairly and impartially conducted, and to exercise the right without interference by the authorities, civil and military; it is important for the additional reason that, as Olu Fasan said in the Vanguard of 28 March 2019, corrupt practice or rigging, in all its variegated forms, breaches “the fundamental doctrine of consent of the governed”, which deprives the “emergent government the legitimacy and moral right to govern.”
Nature And Effect of Corrupt Practices as Contradistinction from Non-Compliance with the Provisions of the Electoral Act
It needs to be stated at the outset that “corrupt practices” partakes of a nature and effect altogether different from “non-compliance with the provisions of the Electoral Act”, with which it is juxtaposed by section 145(1) of the Act, which provides that “an election may be questioned” on the ground, inter alia, that it “is invalid by reason of corrupt practices or non-compliance with the provisions of this Act.” The juxtaposition of corrupt practices with noncompliance in this provision is a statutory recognition that they are two different things and provide separate grounds for questioning the validity of an election. Corrupt practices at elections must therefore be kept distinct from non-compliance with the provisions of the Act.
First, non-compliance implies a failure to do something which the law requires to be done, or doing wrongly what the law requires to be done, whereas corrupt practice implies a positive act the doing of which is prohibited by law; the latter is illegal and is often a criminal offence as well, while the former is ordinarily neither an illegality nor a criminal offence. Second, an electoral malpractice or corrupt practice is also not a “defect”. The side note to section 146 of the Electoral Act 2006, quoted below, reads: “Certain defects not to invalidate election.” Although a side note is not part of an enactment, it has an important bearing on the interpretation of its meaning. The word “defect” contemplates or at any rate, it suggests, an irregularity. It is defined by New Webster’s Dictionary of the English Language as “fault; an imperfection”. It has therefore nothing to do with an electoral malpractice or corrupt practice, as defined later below. Section 146 (now section 139(1) of the 2010 Act) should therefore be restricted in its application to non-compliance not constituting a corrupt practice. It provides as follows:
“An election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non compliance did not affect substantially the result of the election” (emphasis supplied).
The fact that “corruption practices” is not mentioned in this section, as it is mentioned in section 145(1), shows that the law-maker never intended section 146 to apply to corrupt practices.
Third, the term “corrupt practices” is derived from the word “corruption” which connotes, according to the definition of it in Black’s Law Dictionary, 7th Edition, “(1) depravity, perversion or taint; an impairment of integrity, virtue or moral principle. (2) The act of doing something with an intent to give some advantage inconsistent with official duty and the rights of others.” In relation to an election, the term means, therefore, a perverse, dishonest, immoral, improper or illegal act or practice intended to influence the election in favour of a particular candidate sponsored by a particular political party.
Whilst it may be a crime, as in the case of the corrupt acts or practices made a crime by sections 131 and 137 of the Electoral Act 2006, it has a meaning wider than that, and embraces perverse, dishonest, immoral, Improper or illegal acts or practices which, though not made a crime by statute, are intended to influence an election in favour of a particular candidate sponsored by a particular political party – an act may be illegal without being a crime. This is what makes corrupt practice at an election, whether or not it is made a crime by statute, so inimical to free election. It strikes at the very root of free and fair election; it is irreconcilably antagonistic and hostile to an election in the sense required by democracy.
The character of corrupt practice at an election as something which, by its intrinsic nature, undermines the quality of an election as a free election. and therefore its credibility and integrity, is attested by the penalties attached to conviction for it by section 122( I) of the Electoral Act 2002, where corrupt practice is made a crime by statute. The subsection provided as follows (the provision is omitted from the 2006 Act):
“Any person who is convicted of an offence under this Part of this Act which amounts to corrupt practice or is convicted for aiding, abetting, counseling or procuring the commission of such offence shall, in addition to any other penalty, be disqualified during a period of four years from the date of his conviction from being – ¬
(a) registered as a voter or voting at any election; and
(b) elected under this Act or if elected before his conviction, from retaining the office to which he was elected” (emphasis supplied).
Thus, under section l22( I) of the Electoral Act 2002 conviction for corrupt practice where it is made a crime by statute nullified the election of the person concerned, regardless of whether or not the corrupt practice substantially affected the result of the election. The gravity of the penalties under section 122(I) above is a statutory recognition of the nature of corrupt practice as a matter so fundamental to the principle of free, fair and credible election, so fundamental indeed that conviction for corrupt practice made a crime by statute nullified the election of a person convicted of it.
There is something intriguing about the omission of the provisions of section 122(1) of the 2002 Act from the subsequent Acts of 2006 and 2010. The reason for its omission is not stated, but it may not be unconnected with the fact that nullification of an election strikes greater fear and aversion in politicians than criminal punishment – imprisonment or fine. They would rather face the hazards of criminal punishment than the perilous risks of nullification of an election. Yet the abolition of the provisions of section 122(1) above does suggest a certain unseriousness, if not hypocrisy, in our so-called drive to exorcise corrupt practices from our electoral system. The provisions of section 122(1) above should be brought back for the greater deterrent effect of nullification.
Corrupt practice must be regarded as a matter intrinsically “substantial” in nature by reason of the fact that it impairs the quality of an election as a free election and therefore its credibility and integrity. It follows, therefore, that corrupt practice, if shown to have occurred, need not be proved to have substantially affected the “result” of the election under section 146(1) of the Electoral Act 2006. Being something intrinsically substantial in nature, and because it strikes at the very root of free election and thereby undermines its integrity and credibility, corrupt practice, if proved to have occurred, has the effect of invalidating an election by its intrinsic force; it is irrefutably presumed to have substantially affected the result of an election.
The first leg of the provision in section 146(1) above, i.e. that “the election was conducted substantially in accordance with the principles of the Act” is also incompatible with the nature of corrupt practice. An election featuring corrupt practices on a massive scale cannot reasonably or meaningfully be said to have been “conducted” in accordance with the principles of the Act; the principles underlying the Act, being those of free, fair and credible election, are excluded by corrupt practices occurring on a widespread scale, which makes it untenable to say that the election was conducted substantially in accordance with the principles of the Act.
In interpreting and applying section 146(1) a distinction needs to be made between non-compliances amounting to corrupt practice and those not amounting to corrupt practice. The subsection applies only to the latter.
It is not, however, suggested that, being antagonistic to free, fair and credible election and being of a nature intrinsically substantial, a single, isolated incident of corrupt practice renders an election null and void. Its impact on the “result” of an election is the function of how perverse a particular corrupt practice is, and how massive and widespread its incidence is; in other words, corrupt practice, including non-compliance amounting to corrupt practice, is a ground for nullification if it is proved to have been perverse in nature and fairly massive and widespread in its incidence, in which case it is irrebuttably presumed and taken to have substantially affected the result of the election, without further proof.
The question which the court is to consider is not as to whether corrupt practice, by its intrinsic nature, is antithetical or not to free election (its utter incompatibility with free election has the truth of an axiom), but as to the amount of it, in terms of the degree of perverseness of particular corrupt practices and their spatial incidence, that renders an election null and void. No doubt, the determination of the question leaves considerable discretion to the court, but, like all judicial discretion, it must be exercised, not by perverse legalism, but judiciously and with due regard to truth, justice and the Rule of Law.
The application of section 146 of the Electoral Act 2006 by the courts in cases where corrupt practices or electoral malpractices are complained of in an election has had the sad result that the extensive array of corrupt practices of great perverseness and widespread extent proved to have occurred in the Buhari v. Obasanjo Case,  13 NWLR (Part 941 – 943), was dismissed and the election sustained, because such corrupt practices proved to have occurred were not proved to have substantially affected the result of the election – a perverse application of the law.
The application of section 146 to the complaint of corrupt practices in the Atiku Abubakar v. Umaru Musa Yar’Adua Case, (2008) 12 S.C. (Pt 11)1, produced a result no less saddening. The petitioner in that case, Atiku Abubakar, had averred, inter alia, as follows in his petition:
(i) deliberate non-supply, under-supply and late supply of electoral materials, including ballot papers;
(ii) multiple voting, voting by people not registered to vote, voting in private houses and other unauthorized and undesignated places;
(iii) voting was not by open secret ballot, as prescribed by the Act, owing to failure by INEC to erect polling booths in most places, which resulted in the secrecy of the ballot being violated;
(iv) stuffing of ballot boxes, ballot boxes snatching, intimidation, use of violence and threats, bribery, falsification of results;
(v) Form EC8A series showing scores of candidates were not signed by presiding officers at the polling units nor countersigned by party agents (except for those of Umaru Yar-Adua’s party), as required by the Act;
(vi) Counting of votes and declaration of results were not done at the polling units, as required by the Act; results were instead collated at state level based on “scores transmitted electronically from polling units and/or local government areas” across the nation;
(vii) Arbitrary allocation of scores to candidates and falsification of scores.
The complaints listed above were dismissed by the Court of Appeal on the ground that “most of them appear trivial in character” – i.e. non-substantial within the meaning of section 146(1). Nothing perhaps betrays more glaringly the predisposition of the Court of Appeal to use section 146(1) as a shield to protect infractions of the Act than its dismissal of the Petitioners’ complaints listed above on the ground that they are “a logistic problem and not a defect”.
Admittedly, an act or omission to act which would otherwise be condemnable as a corrupt practice would not be so regarded if it is due to accidental or logistical reasons or other lawful excuse, but not when it is deliberate or willful. as the massive, widespread incidence of non-supply, under-supply and late supply of ballot papers and other electoral materials during the April 2007 presidential election indisputably was.
The character of such deliberate or wilful non-compliance as electoral malpractice or corrupt practice is attested by making it a criminal offence punishable with 12 months imprisonment or NlOO,OOO fine or both.
For a polling officer to “fail to report promptly or to discharge his lawful duties at his polling station on an election day without lawful excuse” or for “any officer appointed for the purpose of the Act to act or omit to act, without lawful excuse, in breach of his official duty,” (section 130, Electoral Act 2006). Such dereliction of duty by officers appointed for the purpose of the Act, if it occurred on a massive, widespread scale, as it did during the April 2007 presidential election, warrant nullification of the election, regardless of whether or not the “result” of the election is thereby substantially affected.
Atiku’s present petition arising from the 2019 elections is replete with complaints of corrupt practices, as well as complaints of non-compliance of course. They feature corrupt practices of the old forms listed above, to which are now added more or less new ones, notably treating and vote-buying, which occurred practically everywhere, especially vote-buying. Not only was vote-buying done openly, but it was institutionalised in the sense that it was done under the guise of government’s social intervention programme by which money, N5,000 or N10,000, called “trader moni”, was distributed to traders in the markets by the Vice-President of the country or by which cooked meals were provided for children in the schools.
The February 2019 presidential election is thus tainted by the corrupt practices of the perverse type and which occurred on a widespread scale; it is therefore invalidated by the intrinsic force of corrupt practice of the distinctly perverse type and which is proved to have occurred on a widespread scale; no proof that it substantially affected the “result” of the election is necessary.
The election tribunal/court’s decisions on this issue are marred by perverse legalism
It smacks of a perverse legalism that corrupt practice, of a distinctly perverse type, and as something which, by its intrinsic nature, is so fundamentally antithetical to free election and which undermines its integrity and credibility, should, where it is proved to have occurred on a massive and widespread scale, additionally be required to be proved to have substantially affected the result of the election. The proof of its occurrence on such a scale makes an election null and void by the intrinsic force of a corrupt practice; as no election is, in law, deemed to have taken place, there cannot be a result or, putting it differently, there cannot be a result without an election, so that no question of the result not having been substantially affected can arise. We would be putting the cart before the horse to talk of the “result” of the election when there was no election in the contemplation of the law, or as far as the law is concerned.
And yet the election tribunal/courts have uncompromisely held that corrupt practices, however perverse in nature and however massive and widespread in extent, do not nullify an election, if they are not proved to have substantially affected the result of the election. The Supreme Court, the apex court, in Buhari v. Obasanjo, supra, leads the way in the long line of such decisions.
Typically, Niki Tobi JSC was in the forefront of this line of decisions. In Atiku Abubakar v. Umaru Musa Yar’Adua, supra, he held : “If there is evidence that the result of the election was not affected substantially, the Election Tribunal must, as a matter of law, dismiss the petition, despite all the corrupt practices or non-compliance with the Electoral Act.” (at p. 149). “I do not”, he said, “see evidence of proof that corrupt practices or non-compliance substantially affected the result of the election” (at p. 147). He accordingly dismissed the petitioner’s claim of invalidity of the election on the ground of corrupt practices or non-compliance.
The effect of this line of decisions is effectively to shield an election from invalidity on the ground of corrupt practices, thereby casting the tribunals/courts in the lamentable image of aiders and abetters of rigging.
On this matter of corrupt practices at elections, we seem to have gotten ourselves enmeshed in the web of two contradictory positions : between, on the one hand, massively indulging in corrupt practices in choosing the persons to govern us as President, State Governors and legislators, whilst on the other hand, loudly professing to be waging a war against corruption. The image of the country created by this self-contradiction is that of insincerity and hypocrisy, which needs to be cast off.