Wednesday, August 10, 2022
Nigeria’s Electoral Jurisprudence is ‘One of the Most Backward in the World’ – Falana

In this interview Senior Advocate of Nigeria and human rights lawyer Femi Falana, talks about major issues arising from Nigeria’s general election.

From the menace of ballot snatching, through the role of the military in the electoral process and the number of political parties in the country, the debate over electronic voting and more, Mr Falana explains what should be and what should not be. Excerpts:

What is your general impression about what has happened in 2019 with the general elections; what has been your impression about the process?

Well, you know there are many actors and many actors are involved in the process. At the level of the political parties, the use of thugs across board, the attempt to derail and manipulate the electoral process, the illegal deployment of troops, as well as bombing of INEC offices, destruction of election materials, snatching of ballot boxes and general terrorisation of voters… we thought we had gone past this level.

For INEC, apart from the postponement of the presidential elections, which was avoidable if we were more organised and if election materials are printed in Nigeria – shamefully, we either had to go to South Africa or Belgium to print the materials that’s why we are in this kind of embarrassing situation – I think INEC discharged its statutory duties to a large extent commendably, but there were saboteurs, electoral officers that were compromised.

At the end of the day, INEC has been able to operate independently and, happily, the two leading parties have been accusing INEC of bias either in Rivers or Bauchi or whatever, so I think that’s okay for INEC.

Unlike in the past when election results were taken to Abuja when the local situation resisted rigging, and that was the practice for 16 years under the PDP, now, with the innovation of technological methodology in conducting elections, it is no longer possible to go to Abuja to announce results of elections. Results are now announced at the unit level. We still have problems in a few areas where the collation was hijacked, but generally, what happened in 2019 was some improvement, except that we are too forgetful.

What bothers me as a Nigerian is the fact that the political leaders and some of my colleagues in the human rights community who were pressuring President Jonathan to deploy troops for the 2015 elections, now believe it is illegal to deploy troops for elections. Those who engaged in ballot snatching, now pontificate to some of us on how not to rig elections. They now come around to teach us about the beauty of democracy. Those of us who were asking INEC to conduct a do or die election, are now the heroes of democracy, the teachers of democracy. But the Nigerian people are the victims of electoral manipulation, of electoral violence. Attempts can be made but Nigerians have refused to be provoked into a major catastrophe. In some countries where the degree of provocation was not as serious, people have gone to wars. People have fought wars in defence of their franchise so the Nigerian electorate have tried not to be provoked but we could have done much better.

I understand the desperation in accessing power in Nigeria and, particularly in a bourgeoisie environment, there isn’t anything so strange in what we have witnessed. Where the law has not been allowed to deal with thuggery, violence, (and) ballot snatching, we couldn’t afford anything better.

Nobody is in jail for engaging in the manipulation of the electoral process in 2015, nobody has been jailed in any of the states where local government elections were rigged and, by the way, the state electoral bodies in majority of the states conduct the worst elections in Africa. It is so bad now that opposition parties no longer waste their funds and resources on local government elections in Nigeria.

So, we are talking about general elections. The 2019 general elections with all the shortcomings, for me, is an improvement in many areas on the part of INEC and the electorates. Where we have continued to have problems, to be honest with you, is the desperation on the path of the political class to hold on to power so tenaciously, most of the time, illegally.

Now we have 91 political parties and when I last spoke to the electoral body’s authorities, they did point out that there are more than 100 associations just waiting for the elections to end to be registered. Do you think we’ve gone from too little to too many?

There is no way you are going to constrict the political space particularly to two political parties that are neither ideological nor principled. Hence you could be in one party in the morning, change to another one in the afternoon and before you go to bed, return to your original base so it was very necessary. And I would say, with profound respect and having regards to the fact that we are talking of a population of about 200 million people, having a hundred political parties or 200 is not the problem. The problem is the content of the manifesto and programmes of those parties. Are they parties that the Nigerian people can vest their hope in? Are they parties that can guarantee the future of your children and mine? Are they parties that can turn our poverty to prosperity?

If you just set up political parties to endorse other candidates and collect money, or you turn it to family affairs, there are problems. But in terms of the number, if you go round the whole world, we do not have any political parties here, it is the quality of the parties that should bother us.

There may be a political party that will say, ‘Sorry, we just want to defend the environment’; Green parties in Europe. There are parties that will say, ‘We want to promote education in Nigeria’. Others will say, ‘We want to ensure that every Nigerian has access to basic health facilities. And political parties could simply say, ‘Our interest is to ensure that the economy of our country is dominated by Nigerians to promote prosperity’.

When you have such political parties that are addressing issues, the number becomes irrelevant. And when you get to that stage when parties transcend the individuality of the founders, or the big guys there or godfathers as we call them, then they are likely to say, ‘Since our programmes and manifestos are similar, why don’t we work together?’ I am not talking about adoption on the eve of elections. So, it is a process where parties will merge on the basis of similarity of ideologies or philosophy.

I mean the National Assembly has amended the Constitution, through alteration four of the Constitution, to say if you fail to win 25 percent of the votes cast in a presidential election or a governorship election or you fail to produce a legislator thou shall be banned. That won’t advance the cause of democracy in the country. And while you have brought out that law, you haven’t presented other political associations from registering as political parties. So, we still have to go back to the drawing table. What manner of political parties do we expect? What type of political parties will really expand the democratic space, advance democracy in our country (and) defend popular interest? That is the way I look at it.

The elections are now over and attention will now shift to the temple of justice because a lot of people will be heading in that direction. Do you think the judiciary itself, having been under a great deal of scrutiny, … is actually ready to attend to this issues that will come up before it in a way that people can expect that they were better served by going to the judiciary than heading to the streets?

Your question is loaded. I will go about it this way; our courts are already dealing with disputes arising from the electoral process. Over 600 cases have been filed challenging the lack of internal democracy in the parties whereby godfathers impose candidates on political parties and the electorates. Those cases are in court and our courts are dealing with them, although by now quite a number of them would have been overtaken by events. With respect to the tribunals, again, our courts are going to dispense justice within the limited ambits of our electoral jurisprudence, which is one of the most backward in the world.

Will those tribunals not be challenged since they were set up by the Acting Chief Justice?

No. Again, that is not correct. The members of the election petitions tribunal are constituted by the President of the Court of Appeal. The Chief Justice or the Acting Chief Justice merely performs the oath of office on them. No more, no less.

You talked about the backwardness of this system…

I can tell you, in the majority of African countries, there are Constitutional Courts to deal with election disputes and those matters are dealt with speedily – 14 days, 21 days. In our own country, we used to have a limitless period; sometimes up to four years. By the time we are having another election, some of the election petitions are still in court. That is number one. Number two, unlike in the past whereby election petition tribunals and judges trying disputes arising from elections will recommend the trial or the discipline of officers who engage in electoral malpractice, these days, our courts simply behave like Pontius Pilate.

Furthermore, we have imported very reactionary doctrines into our electoral jurisprudence such as ‘prove beyond reasonable doubt’. ‘You are saying that the election has not been properly conducted and these allegations are said to be criminal in nature, so you must prove beyond reasonable doubt; not on the balance of probability – who won the election, who lost the election’. They ask you to come and prove it like a criminal offence.

Furthermore, you are not just going to allege failure or refusal on the part of the electoral body to conduct elections in accordance to the electoral law, the onus is on you to show that non-compliance with the law has materially affected you. Apart from those who contested the elections, every Nigerian including thousands that may have been disenfranchised lack the locus standi to challenge that election. You can’t say, ‘Oh, I wasn’t allowed to vote; I am challenging that election or you must pay me compensation’. They say, ‘Sorry, you have no locus standi to challenge the election.

Furthermore, when you allege that figures have been inflated, you have to bring the actual figure and what has been inflated.

So, whichever way you look at it, there are insurmountable legal hurdles for petitioners. I know colleagues, very respected colleagues who will never handle cases for the petitioner. They will rather handle (cases) for the respondent so that they just go to court and raise technical objections to the petition. We have cases where the courts have held that ‘Yes, you have alleged that the elections were manipulated, violence took place. You have to prove how such violence, how such manipulation has affected the election’. And our courts always end up with the theory of substantial compliance; that, ‘when you look at the totality of the election, oh, (of) 120,000 polling units, you are only challenging, maybe, elections in about 500 or 1,000 units, that cannot materially affect the result of the election’. These are the problems with our electoral jurisprudence.

Unfortunately, for 16 years under the PDP government, the democratic forces in Nigeria, the progressive forces in Nigeria, the human rights community and other stakeholders, tried to impress it on the government to change the electoral jurisprudence to embark on serious fundamental electoral reforms. Those pleas were ignored.

We are also in that era now, where the ruling party has also refused to embark on genuine electoral reforms. And of course, if for any reason, the ruling party is defeated in an election in the future, you will have the same allegations raised by the PDP now (being raised) by the APC then, but, hopefully, some new democratic forces should have taken over the process. We can’t go on like this, indefinitely. No nation can continue to toy with its destiny as we are doing.

Of course, the Uwais Panel made a profound recommendation; they were ignored. President Jonathan set up the post-election violence (panel) in 2011. Again, very serious recommendations were made, and all the recommendations were ignored. President Buhari set up the Ken Nnamani committee which reviewed all the previous recommendations and added new ones to reflect the current situation. Again, the report has not been debated at all. So, it is not about looking for new ideas, those recommendations are on the ground, gathering dust in the archives of the government. Not to talk of several judgments of our court, that has indicted the electoral process and called for reforms. So what has happened over the years has been an attempt by INEC to update, take a few of the recommendations, turn them into guidelines, but that is not sufficient, and that is why we are in a mess.

Can you talk about the militarisation of the process, the involvement of military or people in military uniforms?

The denial was an afterthought and it was contradictory. Before the denial by the Chief of Army Staff, the army authorities had set up a panel to investigate the role of its own men in the election in Rivers State, where allegations were made. If you now say, these guys that were being investigated are not members of the armed forces, there is a problem there. In 2015, the tragedy of it all is that the Chief of Army Staff, General (Tukur) Yusuf Buratai, set up a panel of enquiry, headed by Major General (Adeniyi) Oyebade, to investigate the militarisation of the Ekiti governorship elections in 2014, where the candidate of the PDP, Ayodele Fayose, was alleged to have been commanding a general in the army. All the military personnel indicted in that probe, were flushed out by the Nigerian Army.

There are not less than five judgments of our courts, which have declared that the armed forces have no role in our elections. Curiously, these cases were filed, either by the candidate of the APC, Muhammadu Buhari, or individual members of the APC. One of the cases was filed in Lagos by Femi Gbajabiamila of the APC, where the Federal High Court held that it is illegal to deploy troops in the conduct of the election. In fact, in one of the Buhari/Obasanjo cases, a former president of the court of appeal, Honourable Justice Ayo Salami said; our political class may be intolerant but have eased out the military from our politics, we should try to keep them at bay, they shouldn’t get involved in our electoral process.

The major pronouncement of our courts influenced the NASS to amend the Electoral Act on March 27, 2015, to the effect that the INEC shall assume the power of deploying the security forces during elections in Nigeria, provided that the armed forces shall be restricted to the transportation and delivery of election materials and protection of electoral officers. There is no law that allows any member of the armed forces to take command or guard a collation centre; it is not part of our law. It is contentious. But militarisation does not end with armed soldiers. When you also use police and thugs to terrorise voters, you are also militarising the electoral process and armed thugs commit offences during our elections, but they are all protected by godfathers in the political party.

Why was there so much brouhaha when Buhari asked security forces to deal ruthlessly with ballot box snatchers?

I think it was the way the president spoke if it is about invoking the law or saying that the full weight of the law would descend heavily on electoral offenders or ballot box snatchers; there shouldn’t have been any problem, but where it was said that … those who snatch ballot boxes may lose their lives, which was a presidential license for extra-judicial killings by our overzealous security forces. Nobody criticised the intent to deal with ballot box snatchers and other electoral offenders. The law is very clear on it; there are provisions of law to deal with all categories of all electoral offenders but our problem is the impunity and the fact that those who commit these offences are granted immunity by the government. I do hope this time around, since the electoral offences tribunal has not been allowed to be created, the INEC will invoke its power under section 150 of the electoral act to prosecute all the electoral offenders arrested by the police and other security forces.

During the process of the election, a lot of people got worried, and a lot of people are usually worried, when results take so long in coming out but as the INEC Chairman told me, the legal framework that currently guides the conduct and collation exercise specifically stipulates that it be manual and therefore for any change to occur, there needs to be an amendment to the law. But then, so many people have mentioned the issue of electronic voting and others have also urged caution on the issue of electronic voting. Where do you stand on the issue?

Well, again let me react to the position of INEC on manual collation and compilation of result, I do not agree (with it). Just like when the Supreme Court held that the use of card readers was illegal. How could they believe that, to say that using a technological device to perform a duty is illegal? I can’t understand it and that was why I reacted to the judgment by bringing out the provision of the law. Section 52 of the Electoral Act as amended in 2015 to the effect that INEC has been empowered to use any device to adopt any measure to conduct a credible election in Nigeria and that provision was amending the provision that had banned the use of any form of electronic system in our election. So it was replaced.

With that amendment, we can’t go back to the past. So that is the law today. Even if you want to have electronic voting now, it is covered under the law. But I have my fears and this I have expressed; as long as you have the culture of impunity that has become the order of the day in our country, no system will work. We saw it in Kenya where the system was hacked into and that is what is going on in the US. America has been investigating their own electoral manipulation since 2016.
Here, two leading professional bodies, ICAN and the NBA, tried to introduce e-voting. Both of the decisions have ended up in court where the leaders have been accused of sitting down in the secretariat to manipulate results using emails to generate results for chosen candidates.

Based on our experiences, we need to guide against the hijacking of the machines if you want to introduce electronic voting. Again, we need to educate our people. And that is possible. In the space of four years, we can wipe out illiteracy in this country if the political will is there. But you are not going to succeed in introducing electronic voting if the culture of the manipulating the electoral process continues. Some people will just hijack the machine as you have seen in the case of the card readers. They will demobilise the card readers and there is nothing you can do about that.

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