By Davies Iheamnacho
Mr Festus Ogwuche is a senior legal practitioner based in Port Harcourt, Rivers State. In this interview, he gives insight into the issues of suspension of electoral process by the Independent National Electoral Commission, INEC, and role of the military during the 2019 polls.
From a legal perspective, how would you describe the recent elections conducted by INEC?
I will describe the 2019 elections in one word – bizarre. Yes, bizarre in the sense that it came with certain features which one considers incomprehensible. As a third world country and yet a fledgling democracy, it is not within anybody’s expectation that we blaze trails in elections, at least for now. But the idea of postponing elections on the very day of the polls is jolting. This is not withstanding the cogency of the factors responsible for that because under no circumstance can an election be postponed in the US. Then we have the umpire scheduling supplementary elections after it had declared a winner and issued him with a certificate of return.
Within the purview of law and the Electoral Act, is supplementary election permissible?
Supplementary elections are the product of the imagination of INEC officials who engaged it as subterfuge to manipulate the process and swing the electoral pendulum in the direction that suits them at any material time. It is tagged with inconclusive elections and this has become somewhat the tradition from the death of Prince Abubakar Audu, when it first reared its ugly head in our political terrain. But now, we have a better understanding of what it entails and where it targets. Some of us boldly challenge the legality of this coinage. The issue thereby becomes whether or not our jurisprudence allows for the introduction of extraneous considerations in the implementation of laws. There is nothing in the law envisaging the possibility of a supplement in the polls. Then again the challenge becomes the distinct features in the process that would make it require a supplement beyond the declaration of its twin coinage in inconclusive elections.
What specific part of the electoral act do you think should be amended?
The issue here is not about amendments per se, but rather about wholesome reforms to bring our electoral system in tandem with international best practices and to reduce fraud, malfeasance and violence in the system. Several attempts were made in the past in this direction but the obviously genuine efforts were all frustrated. For instance our very dear late President Musa Yar’adua took one look at the process that enthroned him in the saddle and was not quite comfortable with it. He knew that the process of his emergence was faulty and unacceptable, and he constituted an electoral reform committee headed by the venerable retired Justice Uwais. The committee did tremendous work on this mandate, received tremendous inputs from the vast array of our national diversity and came up with compelling recommendations that should have nailed the hiccups and loopholes in our elections directly on the head.
As far as I am concerned, the Uwais committee recommendations are the road map to the guarantee of free, fair and credible elections in Nigeria. It made far reaching prescriptions that would have transmuted our electoral misfortunes to platforms of civility and decency. It sought for an all encompassing composition of INEC that would guarantee the integrity of polls and sanctity of the ballot in this country. We have seen clearly that all the recourse to academic citadels for appointments particularly of the INEC chair, is merely cosmetic and does not solve any problem. Elections are not academic ventures and do not require any scholarly exertion.
Then again, the issue of unbundling INEC by the creation of the Political Parties Registration and Regulation Commission, the Electoral Offence Commission and the Constituency Delimitation Commission as a measure of injecting life and efficiency into the electoral system. The issue of independent candidacy was amply recommended and this is in the face of the current global trends in democracy with its gradual shift from party systems. And it is also to bring the system within Nigeria’s international obligations particularly in the face of the recent pronouncement of the African Court of Human Rights in the case of Mtilika and Law Society of Tanganyika vs Republic of Tanzania – wherein the court in construing Article 13 of the African Charter, stated emphatically that to deny independent candidates the right to participate as candidates in an election contravenes Article 13 of the Charter and is an infringement on fundamental rights.
The Uwais panel strongly prescribed the amendment of the constitution on the issue of independent candidature to bring it in conformity with international law, particularly the African Charter on Democracy, Governance and Elections and the ECOWAS Protocol on Democracy and Elections. But in spite of the noble objectives for the setting up of the panel, the National Assembly which was then composed more of the beneficiaries of the monumental sham Professor Iwu called the 2007 elections, took one look at the document and threw it overboard. Reason is that it could upturn their positions which from every of its intent and purpose, is parochial and self- serving. These are the same people who now find themselves in the opposition and are crying foul. They forgot that what goes round comes round. My group has employed all available means to make case for the full implementation of the Uwais report. Unfortunately, it has not yielded any result that’s fruitful. What we saw was a semblance of it in the setting up of another panel headed by Senator Ken Nnamani. We expressed some misgivings and scepticism over the panel’s capacity in terms of whether it will do a better job than that of Hon. Justice Uwais. Today, we are vindicated as the Nnamani group did not turn out anything that is superior to Uwais’. And so it has become somewhat a merry go round affair until the National Assembly gave its nod to the amended electoral act which should have brought innovations that would enhance the electoral process. President Buhari declined his assent as required and the polarisation of members of the National Assembly along party lines made it an uphill task for the requisite constitutional consensus that would overrule the President. Before he became President, Buhari was very vocal on electoral reforms, and what we see now is a complete volte face with his earlier position when he was struggling for the position. That’s how bad it is.
In the last election, several persons were victims of election violence. What remedies do you think are available for them?
In defining what should be remedy for victims of electoral violence, one should start from the point of view of the extent to which perpetrators are brought to book. People who perpetrate violence during elections are seldom apprehended and prosecuted and the reason for this is not farfetched – they are paid servants of political big wigs who are always disposed to shielding them from the long arms of the law. The unfortunate thing is that this has somewhat buoyed up their activities that violence appears to be accepted as part of our elections. You cannot talk about a proper remedy for victims in this circumstance when the monsters of violence still bestride the political landscape like colossus and are ravaging the land. Somebody once suggested the enactment of an Electoral Offences Act. Again, one may find it difficult to articulate a proper remedy for a victim of election violence in the face of the mounting involvement of the state in the said violence as we recently witnessed in the last elections, particularly in Rivers State and Kano. Until the warfare element is expunged from our electoral process, people will still look forward to elections with anxiety, fear and trepidation, and when that becomes the case, then no remedy contained either in the law or prescribed as an interim recourse can assuage the feelings of the victim.
For instance, no attempt has been made for a data for victims of electoral violence. Politicians are only interested in the collation of votes and declaration of results but none appears to be interested to find out who and who were killed or maimed at the end of the day. Each election and everything that came with it are forgotten as soon as the results are announced and no measures are put in place to curtail whatever vice that crystallised thereby. So, it is doubtful if the National Office of Statistics or the Human Rights Commission has any figure or data on the victims of electoral violence. Note again that in construing victims in the sense of elections, it must be seen from the perspective also of pre- and post-elections such as those who died or suffered injuries at political campaign rallies as in Rivers and Kano, and those attacked in the aftermath of the polls as in Zamfara, Adamawa and Southern Kaduna. Well, the families of dead victims should be compensated and those lucky to be alive may approach the courts for preservation of their fundamental rights and may also take advantage of measures available under the canopy of some international organisations such as the UN to abide by its obligations to protect the citizenry.
How optimistic are you that the election petition tribunals will do justice to the petitions before them?
I am convinced that the tribunals will do ample justice to petitions brought before them pursuant to the elections. Indeed, the whole world is watching and they are very much aware of everything that happened prior to, during and after the elections including the unconstitutional and forceful removal from office of the CJN. But then, there must be a radical departure from former modes of adjudication to ones that are quite in tune with current realities and trends, away from technicalities as to the legality or functionality of card reader or whether a party was duly nominated or filed a petition this way or that way and at what time and in what manner. The prime focus of every electoral adjudication is who won the mandate of the voters and nothing more. Technicalities have no place in electoral adjudications as their application is in itself a subversion of justice and could get a popular candidate into an elective position outside the will of the people.
The UNDP Accra Declarations on the Principles of Electoral Justice captures in succinct form the ingredients and criteria for justice and recognises that it is ultimately for the voters and not necessarily the vying candidates.
I presume that should be the focal point of adjudication for the tribunals and courts for the 2019 elections.
What is the stand of the Electoral Act on suspension of the electoral process?
Neither the provisions of the Constitution, the Electoral Act, nor the INEC guidelines and regulations contemplated the inconclusiveness of an electoral process. It is not simply a matter of semantics but the words suspension and cancellation are not synonyms and cannot be equated with each other.
Even so, to engage the word inconclusive in our elections is tantamount to going beyond the precincts of the law, which would definitely require judicial approval. Of course there’s no law that empowers an electoral umpire to unilaterally truncate a constitutional process in the manner of inconclusive elections as that is a usurpation of judicial powers. But here we are with several elections truncated in the name of inconclusive elections on the premise of a margin of criterion that puts the credibility of the polls to the test. Unfortunately, the supplementary polls have turned out to be a nightmare for many Nigerians going by the near war that it generated across the country where they were held last week.