By Joseph Daudu, SAN

These statistics do not include those deaths that were unreported or those that were premeditated, politically motivated assassinations, arson and other mayhem unleashed on the populace by politicians and their thugs. These deaths do not also include the Boko Haram attacks in Bauchi, Gombe and Yobe States during the elections which claimed several lives.

Factors militating against the effective use of police powers during general elections

The impression one gets is that these acts of violence and mayhem can proceed unchecked and unabated, without the intervention or control of the law enforcement agencies in Nigeria. The question arises why the NPF is seemingly helpless and hapless in the prevention of these criminal activities? Indeed when arrests are made why do the suspects appear invincible and beyond the prosecutorial reach of the law enforcement agencies?

JB-Daudu

Under the Police Act the prosecution possesses undoubted powers to prosecute offenders in violation of our penal legislations before any court in Nigeria appropriately designated for such an exercise. It is therefore a regrettable matter that the National Assembly has created an unsalutary state of affairs by denying Police the complimentary power to prosecute offenders apprehended by it for committing electoral offences.

J.B. Daudu SAN, delivered this lecture at NBA Ikorodu branch 10thannual B.O. Benson SAN lecture.

The power to prosecute and bring offenders to justice is a necessary adjunct to police powers. Indeed, stakeholders maintain the unassailable position that power to prevent and apprehend criminals without a corresponding power to prosecute is an exercise in futility.

Consequently when the Electoral Act 2010 provides in section 150 (2) of the Electoral Act that ‘Any prosecution under this Act shall be undertaken by legal officers of the Commission or any legal practitioner appointed by it.” It has expressly and openly emasculated the Police in its task of securing electoral peace and harmony.

This section has far-reaching implications; firstly, it removes prosecutions of electoral Offences from the Police and the Federal and States Ministries of Justice and restricts this important exercise to legal officers of INEC or legal practitioners appointed by the commission. The implication is that criminal prosecution will be centralised Quere?

Has INEC got the manpower to prosecute even 10% of electoral offences? By divesting the police of powers to prosecute such summary offences, who will investigate the offences, because, the fall-out of this prosecutorial ban is that the police will lose an interest in investigations. At any rate, it is settled law that the Hon Federal Attorney-General can take over or discontinue any criminal proceedings in the Federation or State. So what is the functionality of this provision?

It seems clear that the provision which seeks to preserve the independence and integrity of elections under the Act by limiting participation in prosecution to INEC staff or lawyers briefed by her, loses sight of clear constitutional provisions which fetter its power to do so. For instance section 214 of the 1999 Constitution which prescribe that there shall be only one police force in Nigeria and the provision of section 174 and 211 which vest powers to prosecute criminal offences on the Attorney-General of States and the Federation.

Secondly, has the Commission the man power to prosecute all offences charged to court in the Federation? The answer is in the negative, prosecution is expensive and rigorous business, and it is also a specialized art. Till date, INEC Legal Department is not equipped to prosecute any offender under the Act as the necessary facilities are not in place. In any event, the Commission has stated on many occasions that it does not possess the wherewithal to carry out such additional functions that will cause distraction to its core duties.

Great care has to be taken to organise and dedicate a battery of lawyers in the INEC legal department to prosecution of cases. The essence of a democracy is to have functional machinery of Government, which in turn will provide safety and stability for her people to express their political rights in any atmosphere devoid of rancour and instability.

In other words, where hoodlums are allowed to operate freely, troubling innocent by-standers, wishing to cast their votes and or exercise their civic rights, without let or hindrance, the credibility of the election and the integrity of those elected through such chaotic situation would have suffered a fatal blow.

Finally by way of recommendation, Government needs to return to the drawing board and fully implement the Hon. Justice Uwais Report on Electoral Reforms which provides for an Electoral Offences Commission and a Tribunal to be its adjudicative arm. This step is imperative for the maintenance of law and order during elections and beyond.

THE LEGISLATIVE ARM OF GOVERNMENT

The survival of our model of Presidential Democracy is hinged on the optimal performance of the 3 arms of Government i.e. Executive, Legislature and the Judiciary. The 3 arms are expected to act in check to one another. However it has been observed that the weakest link at the level of State governance is the legislature. It appears that the checks and balance that they are expected to provide is completely absent.

The clearest example is the passing into law legislation to authorise outrageous ‘so-called severance pay package for Governors, Deputy Governors, Commissioners and other motley political office holders’. This is coming at a time when the 85% of the nation’s resources is reportedly being spent on recurrent expenditure at both national and states it is inhuman to take such largesse from Government Treasury just because of a 4 year service.

This kind of conduct is anti-democracy and it is perpetrated because there is no one within the system to call them to book. It is a vicious circle with every aspirant looking forward to climb the political ladder by any means most especially through violence and godfatherism in the hope that ultimately it will be his turn to enjoy such largesse for life. In my humble view, this is not the intendment of democracy. The people from where we copied the system have no equivalent of such brigandage.

These people are the ones that give democracy a bad name. It is suggested to the incoming administration that there is an urgent need for the setting up of a ‘ Uniform Law Commission ’will in turn set up or establish the ‘National Conference of Commissioners for Uniform State Laws’ is so as to establish legislative balance between the Centre and the States and also inter-govemental harmony. The existence of this Agency will frustrate any efforts to abuse the law making process whether in relation to constitutional amendment or in respect of ordinary Bills.

THE FIRST STEPS OF THE IN-COMING ADMINISTRATION

Although winners emerged and we congratulated them, the out-going President too must be commended for his statesmanlike conduct of conceding the election to General Muhammadu Buhari. There remain very serious issues arising from the elections which must not be swept under the carpet and abandoned there until the next general elections.

These issues which I propose to highlight hereunder are issues that if care is not taken are usually capable of diminishing the legitimacy of Government that emerges from such an exercise. More over if not dealt with comprehensively, these problems will resurrect with grave consequences in future. The problems include but are not limited to:

The problems associated with voter Registration.

 The problems associated with voter accreditation and the use of the card reader.

The amendment of the Electoral Act 2010 to deal with all the issues detected and highlighted by stakeholders since the introduction or usage of the extant legislation.

  The need for electoral reforms

Some commentators have advocated that INEC, Government of the day and other stake holders be given credit for this most imperfect election. That all and sundry be commended on account of the fact that election was conducted, no matter how bad. They hinge their argument on the fact that it is unfair to judge us along western standards of democracy and that we have, in any event, tried. To such persons it must be said that democracy, truth, honesty and decency are universal virtues recommended by the Almighty for man.

They differentiate us from wild animals and it is necessary to say here that our report sheet for this elections which is ‘average ‘ is the direct consequence of how low and corrupt we have become. Since poverty is not a defence for theft. The new administration must take power with the result that it will genuinely take steps to eradicate such ills; this will restore confidence into the machinery of governance and renew the social compact (contract) between the State and the people.

Right now, outgoing government or the incoming one must take steps to ensure not only that there is no repeat of the kind of things we witnessed in this election but that a democratic culture based on truth and honesty is introduced into Nigeria. If we do not do so, then, the Promised Land will continue to be an illusion and despite our wealth, we will continue to live in squalor and want. God, the Almighty cannot be deceived as man can.

MATTERS ARISING FOR THE IN-COMING GOVERNMENT

It is normally said that we should thank the Good Lord for small mercies; the survival of Nigeria is a cause to continue to be thankful to God the Almighty. It is a big mercy. For this the in-coming administration must not squander the good will of Nigerians for there is not much left. There are important areas of priority for which a lot of good can come out of, we shall endeavour to explore some of these areas.

LAW, ORDER AND SECURITY

This is the greatest priority facing the incoming administration, virtually, law and order have all but broken down, even those who are meant to protect the people from the harassment of criminals have criminalised their own official acts, police check points even though outlawed still rear its head at odd hours and they have now been converted to illegal toll gates. Apart from the disgrace and odium such behaviour brings to the country, countless criminals have slipped through the net because due process has not been followed by the decision makers. The following solution may be apt:

Reorganisation of the Nigerian Police Force.

Enactment of a uniform criminal code.

Resurrecting the fight against corruption by empowering organisations like the EFCC and ICPC.

Tackling corruption among public officers.

Tackling corruption in the private section.

Ensuring that the Rule of Law prevails and that the message to criminals is that when caught, they will be tried by a court of competent jurisdiction, convicted and sent to jail or acquitted and freed. Judicial powers to the Police where unlawful killings in the name of extra-judicial justice have become the order of the day must be discouraged and eradicated.

Control of civil disturbances.

Combating terrorism.

Maintenance of law and order.  Etc

ECONOMIC REFORMS

The appropriate starting point is to ensure that there is a comprehensive review of the existing economic policy. It cannot be business as usual. Government must note that despite billions of dollars spent on iron and steel and Power, we are still unable to produce steel in any form or provide Power (electricity) to Nigerians beyond 2500 or so Kilo watts when what is minimally required is in excess of 10, 000 kilowatts. Billions are spent on importation of items that we can produce if we had electricity to produce them.

The absence of an engaged workforce is responsible for the high level of poverty in Nigeria which in turn leads to rampancy in the crime rate. The new administration must, as a matter of priority, revive all moribund industries by creating a real fund, not a political fund that will be effectively supervised for industrialisation of key sectors of the economy. As a starting point, all textile industries must be re-organised and revitalised, there should be a ban on almost all food products that are imported, let local industries produce replacements.

The President elect stands in a unique position to change the face of Nigeria and imprint himself in the history of Nigeria. To facilitate this, we expect that the administration will:

Genuinely revive the rail industry and make it the moving force for the Nigerian transportation sector.

Make the roads safer and assessable to all Nigerians.

Ensure that the reforms in Telecommunications continue.

Continue with banking reforms.

Continue with the reforms in the aviation sector.

Encourage local participation in the industrialisation process.

EDUCATION

Nigerians expect that emphasis is placed on qualitative education; the lack of quality education is responsible for most of the ills in the society. The low quality is having a debilitating effect on the ability of the country to progress. There is an urgent need for the administration to articulate a revised National Education Policy for the accelerated advancement in education at all levels.

RULE OF LAW/JUSTICE

No modern society can survive without the rule of law; this administration must ensure that all are equal before the law. The independence of the judiciary must also be preserved and all justice sector reforms embarked upon by the out-going administration must be steadfastly continued and implemented. Justice must reach the grass roots.

CONCLUSION

Nigerians await with hope the inauguration of another administration, her people are full of expectations, whatever happens, let us preserve the peace, encourage order, breed dedicated Nigerians, discourage crime and hold our elected officials to account particularly to the terms of their oaths of office. Let anyone entrusted with responsibility and the nation’s wealth not only account for what he is entrusted with but be supervised so that a record of his stewardship can be kept. Above all let all entrusted with power fear God Almighty. LONG LIVE FEDERAL REPUBLIC OF NIGERIA.