Continued from LAST WEEK
Electoral Commission for each of the states of the federation. The members, as that of the Federal Electoral Commission, should also be drawn from amongst retired judges, retired senior civil and public servants and professors of law, political science and other relevant disciplines. It shall be the responsibility of the State Electoral Commission to advise and recommend to the Governor a candidate for appointment as the Resident Electoral Commissioner of the state concerned. The recommendation must be from amongst the career electoral officers in the respective state. In essence, something similar to what currently obtains in the judiciary is being recommended here.
Respect For the People’s Mandate
On no account should a candidate whose election is being challenged be sworn into office It negates all known principles of fairness for a person whose election is being challenged in the tribunal or law court to be sworn into office. It is a dirty slap on the individual faces of the people who have decided with their ballot power to elect one of their own only for another person, for whatever reason, to be sworn into the same office. It is a travesty of justice. And it thwarts the whole essence of elections. And this was not the intention at the birth of the present Fourth Republic. I recall listening to General Abdulsalam Abubakar during a media chat before the onset of the Republic. He was asked the reason behind the choice of May 29, 1999 for handover of power to the civilian administrators. Before then, May 29 was insignificant in our political cum democratic journey. He responded by saying that he got advice from the then Chief Justice of Nigeria, The Honourable Justice, Mohammed Lawal Uwais CJN. He said that the CJN told him that three months was the period needed to determine electoral petitions after the elections in February. That was what informed the choice of May 29 for handover. Thus all electoral petitions and subsequent appeals were meant to be finally determined before successful candidates were to be sworn into offices.
There is no doubt that the Electoral Act of 2022 is a major improvement in our electoral journey as a state, especially since the fourth Republic. However, the aspect of speedy resolution of disputes arising from elections is a snag in that piece of legislation. By Section 132 subsection 8 of the Electoral Act, 2022: “The Tribunal shall deliver a judgment in writing within 180 days from the date of the filing of the petition.” Subsection 9 gives the appellate courts 60 days to hear and dispose of appeals from the Tribunals. So for a dispute that will commence at the tribunals and terminate at the Supreme Court, as in the case of gubernatorial elections, a period of 300 days, equivalent of ten months is needed to dispose of such disputes. This accounts for the impunity of the electoral officers as we have witnessed in recent time, especially during the just concluded 2023 general elections. It is further compounded by the provision that even when the election is nullified by the tribunal, the person who had been declared elected by the INEC will remain in office till the final decision on the matter provided he has filed an appeal within the stipulated period.
It accounts for impunity of electoral officers
Section 138 of the Electoral Act, 2022 accounts for the impunity presently seen among the officers of the INEC in their handling of the Nigerian elections in recent times. It provides are follows: “(1) Where the election is nullified by the Court and notice of appeal against the decision is given within the stipulated period for appeal, the elected candidate shall, notwithstanding the contrary decision of the Court, remain in office and enjoy all the benefits that accrued to the office pending the determination of the appeal and shall not be sanctioned for the benefits derived while in office. (2) If the Election Tribunal or the Court, as the case maybe, determines that a candidate returned as elected was not validly elected, the candidate returned as elected shall, notwithstanding the contrary decision of the Election Tribunal or the Court, remain in office pending the expiration of the period of 21 days within which an appeal may be brought.” It is these provisions that embolden electoral officers to truncate the will of the people to declare whomever they like as winners of the elections not minding the mandate of the electorate. They do this knowing that whomever they return as winner eventually be sworn in and continue to enjoy the benefits of offices they never earned. Politicians brag about with the cliché, go to court, knowing that while in court, which is unfortunately up to Supreme Court for all elections, the de facto INEC declared officer will remain in office. This is a grave injustice and theft of the peoples’ mandate. So in effect, the import of the provisions of Section 138 of the Electoral Act, 2022 is to breed rascality among politicians and lead to corruption of electoral officials. So when you hear the cliché, “Go to Court”, sections 8 and 138 of the 2022 Electoral Act are responsible for it. What that cliché means includes, “Even if you eventually win in court, we would have spent some months in power with our stolen mandate.” Nothing can be more bizarre daring than that.
Leads to off season elections which take a toll on the economy, security and social life
It started with Mr. Peter Obi as governor of Anambra State. INEC had with impunity declared Dr. Chris Ngige as governor – elect of Anambra State following the general election of April, 2003. Consequently, Dr. Ngige was sworn in as governor on 29th May, 2003. He continued to hold sway as the de facto governor of Anambra State till March 2006 when the Supreme decided that he was not validly elected governor and that it was Mr. Peter Obi that ought to have been returned instead. Mr. Peter Obi was thus sworn in as governor of the state on 17th March, 2006, that was after a usurpation by Dr. Ngige aided by INEC and the People’s Democratic Party (PDP) for nearly three years. It did not stop there. After barely a year in office, another general election was conducted by the INEC for office of governor of Anambra State and Dr. Andy Uba, winner of the election was subsequently sworn into office. But Mr. Obi would not have it. He went back to the court for an interpretation of his tenure, and he succeeded. That gave birth to off season elections, mainly of governors of some states in Nigeria. As at the last count, eight states in the country are experiencing off-season elections of their respective governors. More are likely to join. While Mr. Peter should be commended for always standing up for justice and his tenacity of purpose in reclaiming his mandate, the impact of off-season gubernatorial elections are far reaching. Elections in Nigeria are very expensive and cause so much suffocation on the social and economic lives of the populace. The elections are often militarized and a disproportionate size of the military and paramilitary personnel is usually deployed for such elections. The entire state is often cordoned off by the security agencies thereby disturbing both commercial and social lives not only of the people of the areas concerned but even beyond.
I believe it is now settled that we cannot continue like this. Something drastic and urgent too has to be done. INEC should be institutionalized along the line suggested above. It should be able to produce unfettered candidates for appointment to its top offices. The Electoral Act should be further amended. No election petition should go beyond two arbitral bodies, the tribunal and an appellate court. The presidential election petitions should be as it presently is while all other election petitions should commence at the tribunal and terminate at the Court of Appeal. The tribunals in any case should deliver judgment by 90 days of filing the petition while the appellate courts should deliver judgment within 30 days of the decision of the tribunal. Finally the elections should be held early enough to accommodate the judicial activities before a successful candidate is sworn into office. It is hoped that when the foregoing suggestions are implemented, the current absurdities created by our extant legal provisions in our electoral jurisprudence will be solved.
• Ikechukwu Onodi, Esq is a private legal practitioner based in Lagos. He can be reached via 0803 332 9449