By Afe Babalola
Last week I identified some of the problems which adversely affected the smooth conduct of the last general elections. I stated how electoral violence contributed to voter apathy and how the huge number of political parties may actually not be good for the country’s democracy. As I stated last week, many of the identified problems can be addressed through amendments to the Constitution and the Electoral Act.
CHANGE in process of collation and transmission of results
At the moment, the Electoral Act provides for collation and announcement of results at the unit, ward, local government, state and federal levels, depending on the particular election in question. For example, while the collation in the presidential election will go the whole hog, collation at an election to elect a governor will terminate at the state level. Unfortunately, as collation and transmission of results at these levels is largely manual, involving inputing of results from one result sheet to the other, some unscrupulous politicians have identified disruption or manipulation of this process as an easy means of defeating checks put in place by the Electoral Act to ensure free and fair elections. Incidents have occurred wherein electoral officers saddled with physically conveying results from one level of the collation to the other have been attacked.
One of such brazen attacks occurred on March 23 during the gubernatorial election in Benue State when Comfort Dooshima and Prof. Comfort Tuleun, Collation and Returning Officers, respectively, for Gboko Local Government sustained gunshot injuries during an attack on their convoy whilst conveying results from one point to the other. It is widely speculated that many of these attacks are sponsored by candidates who perceive that they have lost the election and resort to instigating violence so as to have elections held in the strongholds of their opponents cancelled or declared inconclusive. It is argued that this accounts for the high number of elections declared as inconclusive by INEC in recent times. Whatever is the motivation for such acts of violence, which is also replicated at the unit level, it cannot be disputed that urgent action is required to put a stop to it.
Given that the attraction to the sponsors of these attacks is the opportunity and ability to physically seize control of electoral results forms, I consider that INEC should be empowered by law to explore means of electronic transmission and real time collation of results. Thus, where agents of a party or candidate have verified the results at a polling unit, such results should be electronically transmitted to the next point of collation in the chain where it will again, upon receipt, be verified by other agents of the said political parties who before then would have received information from their counterparts at the unit level about the results being transmitted. So where, for example, the agent of XYZ Party at the unit level has verified that the scores of his candidates and those of the other two parties at the election are 45, 55 and 60, respectively, the agent of the same party at the ward collation level need only satisfy himself that the scores received by INEC thereat tally with what was announced at the unit level.
This verification which can be done along with the agents of the other parties will then be repeated for the remaining levels of collation. Whilst some aspects of the proposed amendments to the Electoral Act 2018, which unfortunately failed to receive the assent of the President already provide for the deployment of technology in the conduct of the election, they are not far reaching enough to provide for real-time transmission of election results as suggested here. Adopting this measure will not only reduce the logistic difficulties of INEC and the attendant financial cost of same but also help shield INEC officials from harm.
Disposal of pre-election matters touching on nomination before the conduct of elections proper
As has been the case in the past, the courts were inundated by a high number of cases filed by politicians to contest the result of primaries held by their parties to nominate candidates for elections. In some cases, the suits were between factions of political parties seeking declarations as to which faction was the authentic one as to be able to organise the primaries of the party. Such litigation ultimately affected the ability of some parties to nominate candidates in states such as Rivers and Zamfara. The problem, however, is that INEC as the electoral umpire is often joined as parties to these various suits in which the contending parties seek and, in most cases, obtain orders of injunction requiring INEC to either recognise a certain set of candidates or withhold its recognition of another set of candidates.
At the end of it all, INEC often then has to contend with several conflicting judgements and orders made by courts of coordinate jurisdiction. Addressing this problem recently, the Chairman of INEC was reported to have stated as follows: “For our part, there are two major areas of concern. First is the issue of conflicting judgements arising from pre-electlon and post-election cases. As a firm believer in the rule of law, the Commission always obeys court orders or, where it is considered necessary, appeals them in the interest of justice. “There have been over 1,200 cases involving the Commission since the 2015 General Elections and not in a single case has the Commission disobeyed a court order.
“However, conflicting judgements, especially by courts of coordinate jurisdiction at the High Court level, are putting the Commission in a very difficult position and creating uncertainty in the process. The court in one judicial division may order the Commission on a particular course of action only to be contradicted by another court of coordinate jurisdiction from another division or even within the same division on the same subject matter. Conflicting court orders are negatively affecting the consistency, neutrality, and public perception, not only of the Commission, but the Judiciary as well. There is therefore the urgent need to address the issue of conflicting judgements in order to engender certainty in the electoral process.
“Our second area of concern relates to the lack of consequential orders by the courts after making findings on an issue and stating the position. In such cases, the Commission is compelled to take a position relying on previous decisions of the court on the subject. This has in some cases made the Commission appear inconsistent and has also led to protracted litigation. “
To be clear, pre-election matters and the problem they pose to the smooth and efficient conduct of elections as identified by the Chairman of INEC, are not entirely new. Indeed, it is to allow for the timely disposal of such matters that the Determination of Pre-Election Matters (Fourth Alteration, No. 9) Act 2017 was passed. The Act amends section 285 of the Constitution of the Federal Republic of Nigeria 1999 by limiting the period of time within which pre-election matters and appeals emanating from them may be filed, heard and disposed off. Thus, a person desirous of filing a pre-election matter must do so within 14 days of the occurrence of the facts giving rise to his complaint while the court must deliver its judgement within 180 days of the filing of the matter. Any appeal must also be filed within 14 days of the judgement.
However, despite these innovative provisions, several pre-election matters filed prior to the election still lingered till the day of the election, while some were only resolved after the conduct of the election. A case in point was the tussle as to the identity of the candidate of the Social Democratic Party at the last presidential election. The matter was only put to rest via the judgement of the Supreme Court delivered on March 29, well after the elections. To further bring order to the whole process and insulate the courts and INEC from pressure, I suggest that a further amendment be made to the Constitution to provide for the conclusion of all pre-election matters at least 30 days to the conduct of the elections.
To make this workable, parties must be permitted to begin the process of nomination earlier than is currently allowed. This will also require INEC to release the time table for the holding of elections and all matters that precede it, including holding of party primaries well ahead of time. Such a timetable must allow for the period of time currently provided by the Constitutional amendment for the filing, hearing and determination of pre-election matters and appeals emanating from them.