FELIX NWANERI writes on the burden of prosecution of electoral offences suspects, which informs calls for the passage of the bill for establishment of an Electoral Offences Commission to ensure speedy prosecution of electoral offenders
T here is no doubt that violence has always been a major threat to Nigeria’s electoral process. Out of the nine general elections the nation has conducted since independence – 1964/1965, 1979, 1983, 1999, 2003, 2007, 2011, 2015, 2019 and 2023 – perhaps, only that of 2015 could be said to be violence-free.
For instance, while the 2007 general election was described by both local and foreign observers as one that cast a harsh light on patterns of violence, corruption and outright criminality that have characterised Nigeria’s political system, the post-election violence, which trailed that of 2011, although it was adjudged a sharp departure from the past, nearly drove Nigeria to the brink.
By the time the dust settled, several lives were lost and property worth billions of naira destroyed in the northern part of the country. Among those caught in the crossfire were members of the National Youth Service Corps (NYSC), employed by INEC as ad hoc staff. Kaduna State and Kano states, which were the worst hit by the crisis, had thousands of persons displaced. The 2019 general election was also marred by violence in flashpoint states like Rivers, Kano and Lagos. However, for the November 2019 off-season governorship elections in Kogi and Bayelsa states, they were were nothing but a full scale war.
A report by the Centre for Democracy and Development, (CDD) on the polls showed that 10 persons lost their lives during the exercise, while 129 cases of violence and electoral crimes were recorded.
CDD’s report read in part: “Elections which should have enabled citizens to express their democratic preferences were violently and crudely undermined by an unrelenting band of partisan outlaws. The magnitude of the violent assault on the sanctity of the ballot was shocking. The outcome of a process that was so criminally subverted should not be allowed to stand.”
Similarly, the Nigerian Civil Society Situation Room and YIAGA Africa said the election was marred by violence, votes buying, voters’ inducement, intimidation, and harassment. The Situation Room, a coalition of over 40 civic groups, particularly described the Kogi election as “a major dent to Nigeria’s democracy.”
While both chambers of the National Assembly, vowed then not only to probe the violence that marred the Kogi and Bayelsa elections, but called for immediate arrest of the perpetrators, analysts have over the years insisted that prosecution of election offend-ers should not be left in the hands of the Independent National Electoral Commission (INEC) as it is a major mandate that another body should be saddled with. It was against this backdrop that many called on the government to work on the report of the Justice Uwais Electoral Reform Panel, which recommended that a separate body be set up to handle electoral offences. They also called for more collaboration between INEC and the relevant security agencies to facilitate prosecution of electoral offenders to curtail the excesses of politicians and their supporters as well as restore confidence in the electoral system.
The electoral umpire had in the past tried to prosecute election offenders, but it was overwhelmed given the number of individuals involved. For instance, out of the 869,800 persons involved in the manipulation of the voters’ registration process ahead of the 2015 general election, the electoral body was only able to prosecute 200, which represents less than one percent of the total figure. Then chairman of INEC, Prof. Attahiru Jega, who admitted that the commission lacked the capability to prosecute electoral offenders, admitted that the only way to deal with electoral fraud is to adopt the recommendations of Uwais panel. His words: “The best way of dealing with electoral offenders is to go back to the recommendations of the Justice Uwais Electoral Reform Committee, which is to establish an election offences tribunal whose business it is to prosecute electoral offenders. Let us have a tribunal whose full responsibility is to prosecute electoral offenders, so that INEC can concentrate its energy on conducting elections professionally and competently.” President Muhammadu Buhari, who apparently reacted to the issue, when he swore-in Jega’s successor and present INEC chairman, Prof. Mahmood Yakubu, in October 2015, said it was not enough for election tribunals to just cancel or order fresh elections over perceived subversion of the peoples wish. His words then: “It is not just enough for an election to be cancelled and a new one ordered. It would be much better if all those whose actions or inactions led to the cancellation of such election to be investigated and if culpable, prosecuted whether they are individuals as candidates or party agents, Institutions such as political parties, electoral body, or public officers as electoral staff or security agents. “Similarly, perpetrators of electoral violence and thuggery should not be spared. Unless our system stops covering up all forms of electoral malpractices, we can hardly get it right. No system endures with impunity.”
Resurgence of violence
While most recent elections were charactrised by vote buying, it was resurgence of violence during the 2023 general election that was concluded at the weekend. The presidential and National Assembly elections which took place on February 25 were not only marred by violence and at-tacks on members of the opposition in most states across the country, there were also reports of violent assaults on staff of INEC and destruction of election materials. Interestingly, what happened during the February 25 polls turned out to be a child’s play compared to what was witnessed across the country during last weekend’s governorship and state Houses of Assembly elections.
There were reported cases of opposition intimidation in Lagos, with several voters prevented from getting to their polling units. Ethnic profiling was also commonplace, and many polling units were invaded and attacked, with voters chased away. Chief Executive Officer of Connected Development (CODE), Hamzat Lawal, who confirmed this worrisome development, berated attacks and suppression of voters in Lagos. He also cited the brutalisation of a voter in Ebonyi State for refusing to vote for a particular political party, stressing that it was against democratic tenets.
His words: “In Ebonyi State, one of our own, an accredited Uzabe field observer, Uzodimma Lucy Ogodo, was brutally attacked for refusing to vote for a particular party. This is unacceptable and against the tenets of democracy which we strive so hard to maintain as a nation. “The democratic contract of our country dictates that we as citizens have the exclusive right to determine who our leaders are and we must protect this right, and this is why we are again calling on security agencies to act swiftly and ensure justice is served.
Similarly, Executive Director of the CDD, Idayat Hassan, noted that data from its 1,500 observers across the country revealed that there were more cases of votebuying during the governorship election than the presidential poll of February 25. According to her, observers in all seven states in the North-West Nigeria reported high cases of vote trading by political party agents. She added that In the North-East, political party agents in Taraba State infiltrated the queues, pretending to be voters while using the chance to offer cash for votes. “Money was used alongside other materials such as food items, wrappers and a ‘credit voucher’ were used to buy votes and those items were to be redeemed after the results were declared,” she said.
In the South-East, there were reports of party agents using materials, phones and other souvenirs to entice voters in Anambra State, Hassan said, noting that multiple states in the South-South wanted voters to show proof of their ballots before being paid. Party agents also compiled a list of voters in Esan Central LGA, Edo State. “A concern that has cut across multiple zones is the reduced presence of security officials.
Observers across the states in the South-South, South-West and North-West reported a much smaller security presence, especially when compared to the presidential election. “This has led to repeated skirmishes and fights between voters, party agents and officials. For example, observers in Enugu reported clashes between the party representatives, while others in Jigawa highlighted similar issues between selfprofessed party members.”
Hassan said there were reports in Ukanafun Local Government Area in Akwa Ibom, where thugs attacked a polling unit and chased away voters, adding that election materials were also hijacked at gunpoint in Emelia LGA while thugs disrupted the process in Obio Akpor LGA, both in Rivers State.
To those who believe that INEC had not done enough to ensure that electoral offenders are brought to book, the only acceptable excuse is lack of capacity and not the enabling law as the Electoral 2010 (as amended) spelt out in clear terms what electoral offences are. The act also empowered INEC to undertake the prosecution of election offenders. Part V111 of the act lists various types of electoral offences and prescribes punishment for them. Section 23, for instance, prohibits the buying or selling of voter cards; such offences attract a fine not exceeding N500,000 or imprisonment not exceeding two years or both on conviction.
Under Section 81, a political party or association, which contravenes the provisions of Section 227 of the constitution (prohibiting retention, organisation, training or equipping quasi-military organisations) commits an offence and is liable, on conviction, to a fine of N500,000 and N700,000 for any subsequent offence; and N50,000 for every day that the offence continues.
The act also provides that any person, who aids and abets a political party to contravene Section 227 commits an offence and is liable, on conviction, to a fine of N500,000 or imprisonment for a term of three years or both. Section 91 of the act criminalises contravention of limitation on election expenses.
Under Section 91(12), any accountant, who falsifies or conspires or aids a candidate to forge or falsify a document relating to his expenditure in an election or receipt or donation for the election or in any way, aids and abets the breach of the provisions of Section 91 commits an offence and on conviction is liable to 10 years imprisonment Section 122 prohibits impersonation and voting when not qualified, and its contravention attracts a maximum fine of N500,000 or 12 months imprisonment or both, while under Section 129(4) anybody, who snatches or destroys any election material shall be liable on conviction, to 24 months imprisonment. Section 130 frowns at undue influence of electorate on electoral officials; its contravention attracts a maximum fine of N100, 000 or 12 months imprisonment or both, while threats, under Section 131 attract a maximum fine of N1 million or three years imprisonment. Section 150 empowers INEC to undertake the prosecution of election offenders. Section 150 is complemented by Sections 174 and 211 of the Constitution, which empowers the Attorney-General of the Federation and states’ Attorneys- General to institute and undertake criminal proceedings against any person with respect to federal laws and state laws respectively.
As expected, the election management body has repeatedly thrown its weight behind the establishment of Electoral Offences Commission. For instance, the chairman of INEC, Prof Yakubu, had in his presentation during a public hearing on the “Bill for an Act to Establish the National Electoral Offences Commission and Related Matters, 2022,” said although the electoral commission is opposed to some of the clauses in the bill, it believes that the work of the proposed commission will help in the prosecution of electoral offenders. He added that since perpetrators of electoral offences are most times not the beneficiaries of the crime, it was imperative for their sponsors to be fished out. His words: “In addition to its responsibilities, the commission is required to prosecute electoral offenders. However, INEC’s incapacity to arrest offenders or conduct an investigation that leads to the successful prosecution of especially high-profile offenders led to the suggestion to unbundle the commission and assign some of its extensive responsibilities to other agencies as recommended by the Uwais and Nnamani committees. “For those who argue that the solution does not lie in expanding the federal bureaucracy by creating a new commission, we believe that the National Electoral Offences Commission should be seen as an exception. It is proposed that the Electoral Offences Tribunal be established with exclusive jurisdiction to try electoral offenders. It is clear that the reform of our electoral process cannot be complete without effective sanctions on violators of our laws.”
The INEC chairman, who reiterated his call for the passage of the bill before the National Assembly, during an interaction with journalists in Lagos ahead of the 2023 elections, said: “As the 2023 general election approaches, we appeal to the National Assembly to pass the Electoral Offences Commission/ Tribunal Bill into law to ensure speedy prosecution electoral offenders.”
Tracing the recent history of attempts at electoral reforms in the country, Yakubu recalled the Uwais Committee on Electoral Reform of 2009; the Lemu Committee on the 2011 Post-election Violence and the Nnamani Committee on Electoral Reform of 2017. He, however, regretted, however, that 11 years after the Uwais recommendation, “we are still talking about the prosecution of electoral offences.” Against this backdrop, the INEC chairman urged the Ninth National Assembly to make history by passing the Electoral Offences Commission Bill into law as according to him, “it’s time to walk the talk.”
Past recommendations on EOC
Among the recommendations of the Justice Uwais-led Electoral Reform Committee constituted by late President Umaru Yar’Adua in 2007, were the ones aimed at curbing electoral violence. The committee recommended the setting up of an Electoral Offences Commission to ensure prosecution of offenders even after the winner will have finally emerged. According to Justice Uwais then, the acceptance and implementation of the recommendations “will significantly restore credibility to the Nigerian electoral process and usher in an era of free, fair and credible elections that will conform to international best practices.” Unfortunately, the recommendation didn’t find favour with the Yar’Adua government. A similar recommendation was made by the Sheikh Lemu panel set up the administration of President Goodluck Jonathan to investigate the 2011 post elections. The panel looked into the crisis and reported that 943 persons died and 843 were injured due to electoral violence. It therefore recommended the establishment of “an autonomous and constitutionally recognised Electoral Offences Tribunal, but which may be an ad hoc body as it may not have much to do in between election periods.” Significantly, the Jonathan administration, not only accepted the recommendation, it also directed the then Attorney General of the Federation and Minister of Justice, to take steps towards setting the tribunal. However, the dream was not realized until Jonathan left office in 2015. For the Senator Ken Nnamani-led 24-man Constitution and Electoral Reform Committee set up the Buhari administration in October 2016, its report not also contained recommendations on how to improve the electoral process in Nigeria, but attached to it were four draft bills on the amendment of relevant provisions of the constitution, amendment of the Electoral Act, establishment of Political Parties and Electoral Offences Commission and the establishment of Constituency Delimitation Centre.
Position of stakeholders
While both chambers of the federal legislature were unable to pass the bill till date, it is echoes of Electoral Offences Commission given the violence the marred the just concluded 2023 polls. The consensus is that there is the need to ensure that justice is done to those who willfully throw spanner on the wheels of the nation’s electoral process.
Some analysts, who backed INEC on the establishment of a separate agency for electoral offences, said it will not only curb elections violence, but fast track the prosecution of electoral offenders to serve as deterrent to those who subvert the electoral process. Some others called for the amendment of Section 59 of the Electoral Act which gave the power of arrest and prosecution of electoral offenders to INEC, thereby excluding security agencies.
According to those who hold this view, security agencies use the said section in the Act as alibi for doing nothing when electoral crimes are committed even in their presence.
They pointed out that the prosecution of electoral offenders and others who commit crimes related to elections has been a sore point in the electoral process and its direct consequence is that the ordinary people disengage from the electoral process as very few people would want to go to the polling units to be maimed and killed by political thugs.
It was further argued that electoral impunity also creates a regime that is illegitimate and does not command the confidence of the people and that of the international community as well as leads to political and economic instability as those robbed of their victory may employ legitimate and illegitimate means that overturn the said election.
Executive Director, Policy and Legal Advocacy Centre (PLAC), Mr. Clement Nwankwo, who backed the proposed commission, maintained that the Electoral Offences Commission must be independent and insulated from partisanship.
According to him, “the commission, if it should be set up, must really give the outlook of independence and impartiality. We don’t have a problem with the president making nominations but those nominations should be subject to Senate confirmation.”
While anxiety mounts over how INEC intends to ensure that justice is done to those accused of throwing spanner on the wheels of the nation’s electoral process, it is believed that passage of the Electoral Commission Bill into law will go a long way in helping to curb incidents of violence in future polls.