Amendment Of Our Electoral Laws To Enhance Credible Election

By Kenneth Okonkwo

Democracy survives where there is free, fair, periodic and credible elections that ensure peaceful transmission of power from one leader and political party to the other. Before democracy can collapse, die or anarchy prevails, there must be systemic corruption that has destroyed the fabrics of the Executive, Legislature and the Judiciary. The three arms of government must have collapsed in efficiency and effectiveness with checks and balances in non-existent. The first lesson we must learn from the February 25 presidential election is that there was a failure in the duty of the Executive, Legislature and Judiciary and this failure is unnecessarily pushing us closer to the precipice.

The foundation of democracy is built on the Legislature for the simple reason that democracy is the government of the people and the Legislature is the representative of the people. They make laws for the peace, order and good governance of the people. They also have oversight power to investigate all the other arms of government, to obtain information from the public to assist it in making or amending the applicable laws, exposing corruption, inefficiency and waste in government. They authorise the money that can be spent by the executive and can practically kill any agency of government by simply deciding to defund it. The Independent National Electoral Commission (INEC) asked for about N400 billion to organise free, fair and credible elections in 2023 and predicated the request for this humongous amount on the premise that they need to acquire about 176,000 Bimodal Voter Accreditation System (BVAS) electronic machines to enable it electronically accredit, store and transmit number of accredited voters and election results recorded by the BVAS to the collation system and use the machine to upload the scanned copies of the polling units results (form EC8A) unto the INEC Results Viewing Portal (IREV) which will be used to verify the manually collated results to ensure their correctness.

At the end of the day, INEC failed, refused and neglected to carry out this function because of a purported technical glitch, which has not been explained till date to the institution that gave them the money. The most disturbing thing is that the same INEC that went to the National Assembly to obtain the money for their electronic transmission of results went to court to state that their duty to utilise the BVAS for storage and transmission of election results is no longer mandatory, but discretionary.

The Legislature, therefore, has the first duty as the representative of the people, immediately after the conclusion of the case at the Supreme Court, to conduct an inquiry into everything that transpired during the February 25 general election to unearth the truth behind the pretenses of all the participants in the election to enable them undertake to amend the Constitution and laws that will sustain our elections.

They must find out why INEC collected such humongous amount of money under the pretext that a duty is mandatory on them and went to court to claim suddenly that it was no longer mandatory. They must make sure that INEC account for every kobo given to it for the election and all the officials that did not perform their duties be appropriately sanctioned for deterrence. They must be convinced on why there was a technical glitch in the presidential election and not in the Senatorial and House of Representatives elections held on the same day. They must place the burden on INEC to publish publicly all the results in all the elections whether any person demands it or not and compel the courts by law to admit the published election results as sufficient proof of election results at election. Failure of INEC to publish the results should be deemed that elections never held because without authentic results, there is no authentic election. It’s an unprecedented injustice to hold a Petitioner liable for not proving electoral malpractices where the documents he needs to prove them were denied him by INEC who perpetrated the malpractices. Seeing that the future of our elections and the security thereof depends on technological advancement, they must tighten the laws to ensure the preservation of the electronic accreditation, storage and transmission of election results.

They must inquire why the whole five elections which include that of the President, Governor, Senator, House of Representatives, House of Assembly cannot be held in a day thereby reducing drastically the amount we spend during elections. Why would Nigerians labour to travel twice in one month from their work places around the country to their areas of registration to vote. This inconvenience results in the apathy and fatigue Nigerians experience and express in subsequent elections after the presidential election. In this era of high fuel price at N617 per litre, something must be done now with our laws to ensure the unification of the elections to take place in one day. As a matter of fact, there is no law that forbids INEC from holding all the elections in one day, but where they don’t want to adopt that choice, a law can be made to compel them. I do not see the possibility of Nigerians wanting to go back to their different places of registration from all over the country twice in a month in future elections to vote.

Immediately after the 2020 presidential election in America, in which some very powerful forces wanted to manipulate the election against the popular wish of the people, the Legislature rose up to the challenge of exposing all those forces in order to preserve the sanctity of their elections, no matter how powerful those forces were. This led to the impeachment of a sitting President, 91-count criminal indictment of a former President and all his conspirators in the quest to forbid the rigging of American election. United States of America realises that what is sustaining the country is free, fair and credible elections. They can give anything to ensure credible elections. The Nigerian Legislature must rise up and borrow a leaf to sustain our democracy no matter whose ox is gored.

Presently in our laws, a Petitioner cannot seek redress against any non-INEC official who commits or aids in committing any acts of corruption, violence and rigging of the election of any Petitioner. This is because, the position of the law presently is that the Petitioner does not have the right or power to join any person, who is not an INEC official as a Respondent to his petition. Section 133(2)(3)(a)(b) of the Electoral Act states that a Petitioner can only join the declared winner of the election and INEC as Respondents and no more.

We find ourselves in a quagmire where if you aver to any facts in your petition about private individuals without joining them as parties, the court will say you have denied them of fair hearing and strike out the paragraphs which averred to their conduct in rigging election and if you join them as parties, the court will say you don’t have the power by law to join them. This was what happened in the presidential election petition court where the Peoples Democratic Party (PDP) averred in their petition that the Governor of Kogi State, Yahaya Bello, and one Mrs Adejoh interfered with the presidential election in their state. The court simply held that the Petitioners cannot allude to their actions because they were not joined as parties to the petition. This means that private citizens, thugs and members of the military and para-military forces can do whatever they like, rig and manipulate elections however they like and the Petitioners will be left with no remedy for their actions. The Legislature must amend the laws immediately to give the Petitioners the power to join any person who engages in election malpractices that affects the credibility of our elections otherwise our democracy will be destroyed by such entities.

There’s a need to amend the strict 180 days rule. Where in an election, a trial court strikes out a petition for any reason, it will be injustice for the 180 days rule to continue to run while the Petitioner is appealing against the striking out of his petition. What the Petitioner is saying at this moment is that his petition should be heard. If the 180 days rule continues to run at this moment, even if he succeeds on appeal, it may be an academic exercise because by the time he comes back to continue his petition at the trial court, the time would have expired. The right thing should be that if the petition is struck out for any reason on the strength of any preliminary objection, the 180 days rule should be paused until the appeal is exhausted, after all, the trial court didn’t utilise the time. If the appellate court sustains the preliminary objection of the Respondents at the trial court, the petition dies. If the appellate court overrules the preliminary objection, the Petitioner simply comes back to complete his 180 days at the trial court. To hold otherwise is to deny the Petitioner fair hearing in the adjudication of the matter.

The Legislature must make laws to ensure that election petitions are determined before the winner is sworn in to prevent the winner from using the instrumentality of the State to intimidate, manipulate or corrupt the Judiciary into making favourable decisions to the incumbent. We are still in Africa, a developing continent, and the power of incumbency is abused because of lack of strong institutions. Following from this is the exercise of the power of the Legislature to sanction erring Judges who neglect the laws made by the Legislature and make unfounded decisions based on technicalities. They can get two third majority of their members to remove such erring judicial officers. If the incumbent President is found to be complicit in the manipulation of the electoral process, he should be removed through impeachment. There’s no price too costly to pay to protect our democracy. You cannot be like America, unless you do what Americans do to be where they are today.