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Tackling upsurge in electoral offences

Disquiet over creation of Electoral Offences Commission

TUNDE OYESINA writes that the recent call by the Independent National Electoral Commission (INEC) for the creation of a Commission to deal with electoral offences has elicited mixed reactions from lawyers

 

 

Some senior lawyers have expressed divergent views on the recent call by the Independent National Electoral Commission (INEC) for the creation of a Commission to tackle electoral offences and bring offenders to justice.

 

The lawyers while baring their minds on the issue at the weekend could not speak with one voice on the desirability of such a Commission. The Electoral body had recently renewed its earlier call for the establishment of an Electoral Offences Commission through its Resident Electoral Commissioner in Kano State, Prof. Shehu Risqua.

Speaking at a one-day workshop on electoral reportage, Risqua said the proposed Commission should be assigned the responsibility of recording, investigating and prosecuting violators and offenders of the Electoral Act during the polls. He noted that the Commission’s creation would go a long way in checking electoral irregularities, including violence and snatching of ballot boxes. The INEC Commissioner also sought media assistance in recording evidences of electoral violations and breaches, saying the authorities were very determined to check these excesses during the 2023 general election.

 

“INEC is usually too involved with ensuring the successful conduct of elections to undertake additional assignments such as the arrest and prosecution of violators of electoral laws of the land”, Risqua said. INEC had earlier in 2019 through its Chairman, Prof. Mahmood Yakubu, called for decisive actions against electoral offenders in the country.

 

He made the call during the Nigeria Civil Society Situation Room Stakeholders’ Forum on Future of Elections in Nigeria. The event was organised by a Coalition of Civil Society Organisations (CSOs) in Abuja. Yakubu while speaking through INEC’s National Commissioner and Chairman, Information and Voter Education Committee, Festus Okoye, said the electoral umpire was in full support of the establishment of Electoral Offences Commission to punish electoral offenders. Yakubu said: “it is time to take decisive action to break the cycle of impunity through the promulgation of an Electoral Offences Commission/Tribunal to handle matters relating to electoral offences.

 

“The commission has made it clear that it lacks the capacity and wherewithal to continue the prosecution of electoral offenders and it is for this reason that the commission supports and will continue to support the creation of an Electoral Offences Commission/ Tribunal to process, arrest, investigate and prosecute electoral offenders”. Senate’s intervention

 

As a follow up to the request by INEC chairman, the Senate subsequently passed a Bill to establish Electoral Offences Commission in 2021 The Bill sponsored by Senator representing Borno North, Abubakar Shaib Kyari, passed second reading in March 2021 and was sent to the Senate Committee on Independent National Electoral Commission (INEC).

 

Presenting his Committee’s report, Senator representing Kano South and Chairman of the Committee on INEC, Kabiru Gaya, noted that electoral law violations have characterised elections in Nigeria from 1999 till date. “Successive elections at the national, states and local government levels have been marred by irregularities with political players resorting to violence to outsmart each other to achieve victory. “No doubt, electoral offences remain a significant threat to credible, free and fair elections in Nigeria, where elections heighten political tension and trigger violence”, Gaya said.

 

The senator further recalled that INEC had severally lamented that it lacks the capacity to prosecute and ensure the conviction of individuals apprehended for electoral offences, saying with less than 100 legal officers, the electoral umpire was incapable of pushing for conviction of offenders. “Indeed INEC has at several occasions admitted that it lacks the wherewithal to cleanse the system. Its failure to prosecute even one percent of 870,000 and over 900,000 alleged electoral offences in the 2011 and 2015 general elections respectively is an affirmation of the necessity for a paradigm shift  on how we deal with electoral offences”, Gaya further noted.

 

Accordingly, the Senate during consideration of the INEC Committee’s report, approved the establishment of National Electoral Offences Commission. The Bill indicated that the Commission’s membership would consist of Chairman, Secretary and representatives from the Justice, Interior, Defence and Information Ministries.

 

The function of the Commission includes; investigating electoral offences created in any laws relating to elections in Nigeria, prosecution of electoral offenders and maintaining records of all persons investigated and prosecuted. It will also liaise with the Attorney- General of the Federation, law enforcement bodies and agencies in the discharge of its duties; liaise with other bodies within and outside Nigeria involved in the investigation or prosecution of electoral offences as well as adopt measures to prevent, minimize and eradicate electoral offences throughout the federation.

 

The Senate in Clause 12 of the Bill approved at least five years imprisonment or a fine of at least N10 million naira or both, for any officer or executives of any association or political party that engages in electoral fraud that contravenes the provisions of clauses 221, 225(1) (2)(3) and (4) and 227 of the 1999 Constitution as amended.

 

The upper chamber also adopted the Committee’s recommendation of 15 years imprisonment for any person involved in ballot box snatching, supplying voter’s cards to persons without due authority, unauthorized printing of voters’ register, illegal printing of ballot paper or electoral document, and importation of any device or mechanism by which ballot paper or results of elections may be extracted, affected or manipulated, and voting at an election when he is not entitled to vote.

 

It also approved 10 years imprisonment for any person who sells a voter’s card, or in possession of any voter’s card bearing the name of another person, or prepares and prints a document or paper purporting to be a register of voters or a voter’s card.

 

The Senate also gave its nod to a term of at least ten years upon conviction for any election official who willfully prevents any person from voting at the polling station, willfully rejects or refuses to count any ballot paper validly cast, willfully counts any ballot paper not validly cast, gives false evidence or withholds evidence, and announces or declares a false result at an election.

 

The upper chamber in Clause 20(2) of the Bill also approved at least 15 years imprisonment for any judicial officer or officer of a court or tribunal who compromises electoral justice, during or after an election. It also gave at least 15 years jail term or N30 million naira fine for any security personnel or election official engaged by the Independent National Electoral Commission or State Electoral Commission who attempts to influence the outcome of an election. In addition, any person found to disturb public peace on election day by playing musical instruments, singing or holding an assembly where a polling station is located shall be guilty of breaching electoral peace and liable to six months imprisonment or a fine of at least N100,000 or both.

 

Also, any person acting for himself or on behalf of any organization or political party or candidate or his agent with the intention of prejudicing the result of an election, damage or defame, in any manner, the character of any candidate in an election or his family member by making, saying, printing, airing or publishing in the print or electronic media false accusation on any matter shall be guilty of serious corrupt practice and liable on conviction to a term of at least ten years or a fine of ten million naira or both.

 

Any person soliciting or giving votes for or against any political party or candidate at an election, or found to affix campaign materials on any private house, public buildings or structures, or prints posters and banners without the name and address of the political party to which the candidate or person belongs contravenes sub-clause (1) to (5) and guilty of an offence and liable to at least five years or a fine of at least ten million naira, or both.

 

The National Electoral Offences Commission Bill, 2021, also prohibits any campaign against national interest. It provides a twenty years jail term without an option of fine for any person who propagates information that undermines the independence, sovereignty, territorial integrity or unity of the federation.

 

Besides, any candidate or agent who damages or snatches ballot boxes, ballot papers or election materials before, during and after an election without the permission of the election official in charge of the polling station attracts at least twenty years imprisonment or a fine of at least forty million naira.

 

The Senate also approved at least fifteen years imprisonment for any person who conveys voters to and from the poll; and three years imprisonment for any employee who directly or indirectly exerts undue influence on a voter in his employ.

 

The upper chamber approved three years and not more than five years imprisonment for any person who provides false information in any material particular to a public officer. It also approved at least ten years imprisonment or at least twenty million naira fine or both for any person who uses hate speech to stir up ethnic, religious or racial, social or political insecurity or violence against anyone or group of persons.

Lawyers speak

 

In the meantime, a cross-section of lawyers have expressed mixed feelings over the request by INEC for a creation of Electoral Offences Commission. In his reaction , a former Director- General of the Nigerian Institute of Advanced Legal Studies (NIALS), Prof. Adekunle Adedeji (SAN), expressed his support for INEC’s request.

 

Adedeji said: “No matter how you look at it, these electoral offences are specialized offences and there is no limit to the kind of institutions that can be set up to fight them. “There is nothing in the system at the moment suggesting that the  other investigative and prosecutorial agencies in the country are effectively looking at the plethora of electoral offences.

 

“When you talk of electoral crimes, we are talking hi-tech. This means you have to rely on digital forensics because a lot of forgery and impersonation happens and we have introduced a lot of digital processes into our elections.

 

“We are not talking about foot soldiers stamping around the country but very focused forensic analysts and investigators and if they fail, the head of the agency takes the axe and we try a new one”. An Abuja-based lawyer, Chidi Molokwu, also threw his weight behind the creation of Electoral Offences Commission, saying it will serve as a mechanism for electoral accountability and prevention of offences. He added that if the Commission is well set up in terms of functionality and capacity, there would be no need for a specialised election crime tribunal.

 

“INEC has enormous responsibilities, which has hindered it in making significant efforts in prosecuting electoral offences. A major challenge is lack of resources, both human and capital, to effectively prosecute electoral offences.

 

 

“This is compounded because INEC lacks investigative powers and has to rely on a third party, the police, to investigate offences. It is further worsened by peculiar features of Nigeria, where electoral politics is a zero-sum game and a ‘do or die’ affair. There is abuse of state resources, the practice of godfatherism within many political parties and high level of electoral impunity”.

 

“Politicians commit electoral offences recklessly and with impunity because they believe and know they can do these without repercussions. There is also endemic corruption. Corruption has also increased the recurrence of electoral offences in the electoral process, as practices such as patronage, vote buying, and selling have become the norm during elections”.

 

“All these make it difficult to tackle electoral offences in Nigeria effectively. These many issues around electoral offences in Nigeria greatly undermine transparency, participation, inclusion, and trust in the electoral process. The way electoral offences are addressed is a key indicator of the integrity and credibility of elections. It is on the above note that I strongly support the creation of such commission”, Molokwu said.

 

Speaking in the same vein, Chief Iheke Solomon, opined that there was an urgent need for the creation of Electoral Offences Commission. Solomon said: “Let me start by noting that the Electoral Act empowers INEC to prosecute electoral offenders.

 

However, the Act does not invest INEC with the power to arrest and investigate suspects. INEC accordingly relies on the Nigeria Police (which it lacks power to control) to effect arrest and conduct investigation.

 

“This deficiency does not augur well for effective discharge of the prosecutorial powers of INEC in the light of the known tardiness in investigation process of the Nigeria Police vis-a-vis the urgency required in dealing with election malpractices and related offences. “Therefore, the call by INEC for the creation of an independent electoral offences commission to handle both the arrest, investigation and prosecution processes of election offenses deserves urgent and appropriate attention.

 

“More importantly, the propriety of an independent electoral offences commission is based on the rationale that INEC which is charged with the statutory responsibility to conduct elections, and in all electoral disputes, is a party to the election petitions, should never have been saddled with the responsibility of prosecuting electoral offences, which most often than not it has interests in their outcome, no matter how remotely the interest maybe .

 

“It’s a cardinal principle of our legal jurisprudence never to allow anyone to be judge over his own matter. It is impossible for INEC to effectively combine its statutory functions of conducting elections with that of prosecuting electoral offenders, without the likelihood of bias.

 

The establishment of an independent agency is, therefore, paramount in the interest of justice. INEC should focus on its core constitutional mandate of conducting elections , and postelection matters”. However, expressing contrary views, Dr. Basil Ignatius, submitted that the country does not need a separate commission to handle electoral offences . He said: “There have been improvements in the Nigerian Electoral framework, especially with the introduction of the new Electoral Act of 2022, which has introduced some positive changes despite some challenges.

 

“Beyond laws and legal frameworks is the need for implementation and/or compliance with enacted laws, as the dearth of implementation and compliance is the danger that breeds electoral impunity. “Historically, electoral offences in Nigeria could be categorised into three broad categories: These are; pre-election offences, largely related to either campaign or electioneering processes, including matters relating to campaign financing.

 

Secondly, there are election day offences. These relates to issues such as disruption of voting processes, use of violence or intimidation, harassment or use of money, as well as problem activities perpetrated either by the electoral officials themselves or security agencies deployed for election duty. The third category relates to postelection day offences.

 

These has to do with alteration of election result or fraudulent declaration of results or even violent activities to disrupt the collation and announcement of results processes. “So, for me, enforcing and enhancing the existing laws by election tribunals and the regular court will achieve desired results instead of creating a separate body or commission”.

 

Ignatius was echoed by a former Assistant Publicity Secretary of the NBA, Habeeb Akorede, who was also opposed to the creation of Electoral Offences Commission. “I do not believe that another commission should be specially created for electoral offences. We might however empanel another ad-hoc Tribunal to deal specifically with electoral offences at the end of every elections in the way and manner we have the election petition Tribunal.

 

“The powers of the Tribunals to try electoral offences should be divested as the Tribunals are often burdened with strict time-lines of election petitions”, Akorede said.

 

A constitutional lawyer, Professor Auwalu Yadudu, also expressed reservation on the effectiveness of establishing Electoral Offences Commission. Yadudu said: “It is one court too many. If we mean business, there are sufficient extant legal provisions in our statute books to effectively deal with electoral offences.

 

“The problem is failure or neglect to diligently apprehend violators and their sponsors and deal with them. I have my serious reservations if another court structure will make much, if any, difference”.

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