By OSERHEIMEN A. OSUNBOR
THE Constitution of the Federal Republic of Nigeria in its Third Schedule Part I Item F 15 sets out the powers of the Independent National Electoral Commission, INEC. It states inter alia: “The commission shall have power to – (a) organise, undertake and supervise all elections to the offices of the President and Vice President, the Governor and Deputy Governor of a State, and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation; ….”
The Constitution in section 158 guarantees the independence of the Commission along with some other Federal bodies in order to ensure that they exercise their respective functions free from external influence, control or interference.
The need for the Commission to carry out its functions free from any external control is very crucial considering the fact that free, fair and credible elections form the basis of citizens’ participation in the choice of their elected representatives into public office which is the essence of democracy.
In the discharge of its functions and exercise of its powers under the Item F 15 (a), the primary duty of INEC is to ascertain, through election, the will of the electorate or voters and to declare the candidate with the highest number of votes as winner of the election.
The Constitution could not have envisaged that the Independent National Electoral Commission will share this power with any other authority or organ of government but sadly that has become the reality as election tribunals and courts have repeatedly declared as winner of an election a candidate different from that declared as winner by INEC – the body that organised, undertook and supervised the election in the first place.
It is a serious anomaly, incongruity and an aberration for INEC to conduct an election and declare a winner and for other persons who took no part in the conduct of the election to declare a different person as winner. This renders the word Independent in the name of the Commission worthless and meaningless. It does not make sense and is inherently wrong.
This is more so where the person declared by the court to have won the election did not originally have the majority of the votes cast in the election. This usually happens after the votes (sometimes running into hundreds of thousands) of the candidate declared winner are annulled by the courts and tribunals or are declared “wasted votes” for reasons due to no fault of the voters.
This has given rise to the emergence of elected officials who were rejected at the polls by the voters but emerged through the courts as winners in total disregard of the will of the majority of the people that heeded the call to perform their civic duty.
The essence of democracy is thus defeated. Elections, to that extent, have ceased to reflect the will of the people but the will of the judges sometimes by a split decision of 2:1, 3:2, etc, as the case may be. Elections should be won at the polls, not in a court of law. They should be a reflection of the will of the voters, not the brilliance of election petition lawyers or the will of courts of law or other extraneous consideration. Every vote must count because this goes to the very foundation of democracy.
In an attempt to correct this anomaly, the National Assembly introduced section 140 of the Electoral Act 2010. It states: “(2) Where an election tribunal or court nullifies an election on the ground that the person who obtained the highest votes at the election was not qualified to contest the election or that the election was marred by substantial irregularities or non-compliance with the provisions of the Act, the election tribunal or court shall not declare the person with the second highest votes or any other person as elected, but shall order a fresh election”.
Regrettably, the courts have struck down this well-intentioned provision as unconstitutional and an attempt to muzzle the judiciary. They have continued to carry on as before (See for instance, Labour Party v INECFHC/ABJ/CS/399/2011 delivered by Hon Justice G Kolawole on 21 July 2011). It has now become imperative for the National Assembly to revisit the principle behind section 140 of the Electoral Act 2010 by incorporating it into the Constitution during this current Constitution Review exercise.
Many prominent Nigerians have spoken against the current practice of electoral-victory-through-the-court, describing it as undemocratic. Prominent among these are former President Goodluck Jonathan who is reported to have said that the outcome of elections must be decided by ballots and not by the courts. In his words: “If the ballots don’t decide who wins, then we are not practising democracy”.
Also Comrade Adams Aliyu Oshiomhole, who was himself a beneficiary of court-ordered electoral victory, has condemned the practice and described it as undemocratic. According to him: “The court should not impose. If the courts find out that the preferred candidate did not win, for me, the only democratic option, the legal option will be to repeat the exercise… Nothing should empower the court to impose a man rejected by the people on the people.
That goes to the heart of democracy and it destroys the fabric of our democratic process… The very best the court can do is to order that the exercise be repeated because in a democracy, nobody other than the people can choose who governs them. For me this is fundamental.”
In a similar vein, Professor Itse Sagay SAN, (Chairman, Presidential Advisory Committee Against Corruption) who was himself a member of the team of lawyers that secured electoral victory in the court for Adams Oshiomhole in 2008 now sees the wrongfulness in the practice, saying “it’s unfortunate we now allow judges, instead of the electorate, to give us governors”. (See Sunday Vanguard 7 April 2019 at p.10). The time has come to “work the talk” and take corrective action.
If the court finds that there has been a serious infraction or violation of the law which amounts to substantial irregularity or substantial non-compliance in the election, the tribunal or court can and should nullify the election and order a repeat of the election. Anything beyond that puts the judiciary and its impartiality in a dangerous situation where its integrity can be called to question as we have seen in recent times.
I believe it is expedient to heed the weighty admonitions in the interest of our democracy and for many other reasons, namely: It will help to preserve the integrity of our judiciary and restore public confidence which has been imperilled on account of this unwholesome practice, albeit permitted by extant law. It will insulate the judiciary from political pressure to compromise in return for financial inducements or blackmail.
It will help preserve our democracy lest we suffer the fate which recently befell Mali. That country’s government was brought down by a military coup partly on account of the decision of their Constitutional Court which nullified the election of many members of the opposition in Parliament and replaced them with supporters of the government who had lost at the polls.
The consequences of our Supreme Court handing over an electoral mandate to a person other than the INEC-declared winner in a Presidential election, for instance, can best be imagined. We should be mindful of Murphy’s Law which states that anything that can go wrong will, sooner or later, go wrong. It will reduce voters’ apathy which is fuelled by the growing impression that in Nigerian elections votes don’t count. It will reduce the spate of litigation, many of them frivolous, by fortune-hunting litigants who explore every available avenue, fair or foul, to get into office using the courts.
(There are important lessons to be learnt from the US elections where various courts up to their Supreme Court have been firm to protect votes despite Trump’s desperate efforts to have some of them annulled).
Accordingly, and with a great sense of responsibility, I urge you to consider this proposal as essential to your mission of electoral reform and the consolidation of our democracy during this round of constitution amendment exercise.
It is noteworthy to mention that the National Assembly took a laudable step to secure the independence of INEC from the Executive arm by ensuring its financial autonomy through the First Alteration of the Constitution which puts the Commission on a First Line Charge. In like manner, the Supreme Court invalidated provisions in the Electoral Act of 2002 which sought to dictate to INEC the days and sequence of elections as an encroachment by the Legislature on the independence and powers of the Commission.
It remains to safeguard the independence of the Commission from encroachment by the Judiciary by giving INEC the exclusive power to declare the winners of elections. The National Assembly should not lose this opportunity whose timing is very apt.
It will restore faith in our electoral system and confidence in our democracy. I have taken liberty to propose a Draft Bill (which is attached herewith) on this reform. It should be borne in mind that this proposal, if it passes, will necessitate consequential amendments to some sections of the Electoral Act 2010.
To ensure that the reinforced independence of INEC as proposed is not abused I further propose that we introduce a new section in the Constitution to the effect that where elections to any office are repeatedly nullified by the tribunal or courts due to flagrant violations of the law, substantial irregularities or substantial non-compliance, the Chairman, or Commissioner or other officer responsible may be removed for gross misconduct on a motion supported by not less than a two-thirds majority of all the members of the Senate. The courts or tribunal can also recommend such officials for prosecution. These sanctions will serve as a deterrent and compel INEC officials to sit up.
Bill for an Act to strengthen the Independence of INEC and to preserve its power over the organisation, supervision and conduct of elections including the exclusive power to declare the winner of an election. Section 6(6)(a) of the Constitution is hereby amended by adding the following words after the semi-colon; “but shall not extend to the power of the Independent National Electoral Commission to declare the winner of any election.”
A new section 228A is hereby inserted in the Constitution. If an election petition tribunal or a court as the case may be, determines that a candidate who was returned elected was not validly elected on any ground whatsoever, the Tribunal or the court shall nullify the result and order a fresh election and shall not declare the person with the second-highest votes or any other person, as validly elected.”
A new section 228B is hereby inserted in the Constitution. “Where elections to any particular office in an election are repeatedly nullified by the tribunal or courts due to flagrant violations of the law, substantial irregularities or substantial non-compliance, the Chairman, or Commissioner or other officer responsible may be removed from office for gross misconduct on a motion supported by not less than a two-thirds majority of all the members of the Senate.” The Third Schedule Part I, F-15 (a) is hereby amended by inserting the following words after the semi-colon – “and to declare the winners of those elections.”
Prof. Osunbor, a former governor of Edo State wrote from Abuja