Date Published: 01/25/11
Cogency of credible elections in April By Chimezie Elemuo
On December 8 and 9 2010, the Port Harcourt branch of the Nigerian Bar Association held a two day working conference tagged “The Cogency of Credible Elections in 2011.” It was a conference that came at the nick of time giving the apprehension in the polity. INEC Chairman warned recently that no perfect election would be achieved in this year’s election. He said that there is no perfect election any where in the world. The Port Harcourt conference afforded participates and the conference lecturers opportunity to ruminate on the coming elections. After the two day conference all and sundry agreed that even if there is no perfect election any where in the world, the April elections must be credible. It is in the light of this that yours truly wishes to state in summary and in form of analysis the collective opinion of the conference lecturers and participates if we are to achieve credible election this year. In Enemuo V. Duru ( 2004) 39 W.R.N. p.98 Fabiyi JCA noted that for there to be credible elections in the country, “… those charged with the responsibility of conducting elections in a democratic dispensation should appreciate that democracy can only thrive through election and not selection of people’s representatives.” He continued that “they should be fearless and courageous. Above all, they should operate with due honesty of purpose if democracy in our land must take firm root and continue to germinate.” Conference participates agreed that for there to be free and fair elections this year, the political parties, politicians, the electorate, the courts and the criminal enforcement agencies like the police have a pivotal role to play if we must move from our present perennial electoral crises to building a veritable electoral process that will not only ensure electoral stability but that will entrench a well rooted democratic culture in the polity. This perhaps forms the reason why every Nigerian has been yeaning for electoral reform. If we must have an electoral system that the world would applaud and emulate, the political parties have onerous role to play. They are the primary factor against stable electoral system in the country. They must eschew bitterness and rancour while electing their standard bearers in any election. This must be done in fairness to all and sundry. They must learn to respect their own constitutions as this will lead to stable party politics and not germinate into allowing INEC to take a part into who becomes the standard bearer of the parties or throwing its hat into party politics by declaring one candidate as its recognized candidate against the other. This has always led to court actions, putting parties and the electorate into disarray, posing credibility crises into the election conducted by INEC. This much was echoed by the Supreme Court in Amaechi V. INEC & 2 Ors. (2008) 1 SC (PT. 1) 77-78, where His Lordship, Justice Oguntade, JSC, (as he then was) noted that “an observer of the Nigerian political scene today easily discovers that the failure of the parties to ensure intra- party democracy and live by the provisions of their Constitutions as to the emergence of candidates for elections is one of the major causes of the serious problems hindering the enthronement of a representative government in the country.” His Lordship is a keen observer of the Nigerian politics and cannot be wrong. It therefore follows that the political parties must be ready to ensure that intra- party democracy is maintained as this will safe the electoral process by forestalling or minimizing pre- election litigation which has always forced INEC to either take position as to who is its recognized candidate or forcing the electoral umpire to make last minutes amendments where the rejected candidate is successful in litigation. The last situation often than not leads to confusing the electorate and at the same time causes swapping of votes and all sundry electoral malpractices. The former paints INEC as an interested party that it should not be and therefore, draws it into public criticism and odium. There is no gain saying the fact that this was the case in Imo State during the 2007 gubernatorial election and why the Supreme Court stated in Ugwu V. Ararume ( 2007) 12 NWLR (PT. 1048) 367 at 486 per Onnoghen , JSC, that “ the sooner we learn that laws are not made for the fun of it but for the betterment of the society if obeyed, the better for this nation which is a nation of constitutional democracy under the rule of law, where the law is supreme to all and sundry.” The conference added that unless the political parties learn to imbibe the spirit of true democracy in their affairs particularly in electing their standard bearers for elections, since they are the primary source of democratic evolution, INEC may not conduct any credible election. This is so and it has been reiterated by the Australian court in Baldwin v. Everingham ( 1993) 1 Q.D.R. 10 that political parties fulfill “ a substantial public function in our society and play a central role in the determination of affairs of the state.” It must be pointed out at this stage that the present state of political parties in Nigeria will not guarantee any credible election and deep seated democratic culture in the country.
Now, all eyes are on Jega and the April general elections. Will he deliver or will he fail? This question agitated the minds of the conference lecturers and participates. It is a poser for INEC as a body. The conference agreed that the first step to conducting credible election next year is for INEC to compile a credible voter’s register and place it for scrutiny by the political parties, the electorate and concerned individuals. This is the first step to curb election rigging. INEC must not only be transparent but must be seen to be transparent. It is only then that it can win the heart of the masses. In Onuigwe V. Emelumba (2008) 9 NWLR (pt. 1092) 37 at 413, Garba , JCA noted that “ the Independent National Electoral Commission should always strive to sincerely remain and be seen to be an impartial institution and arbiter in the conduct of elections into all public offices in the country. That can only happen when and if its officers dedicate and commit themselves to the observance of the rule of law by conscientiously carrying out their statutory duties and functions in strict compliance with the Electoral Act and the Constitution.” Compiling the voter’s register and presenting it for scrutiny will be in strict compliance with the Electoral Act. This is one sure way of conducting a credible election and preventing election rigging or over voting. In Chime V. Ezea ( 2009) 2 NWLR (pt. 1125) 231 at 386, the Court of Appeal espoused the view that “ rigging or over voting has from time immemorial been a cause for concern all over the world, especially in the so called third world or developing countries. It is indeed a very serious and highly lamentable electoral malpractice. It is most shameful and degrading act that ought to be condemned in all it ramifications…” Above all these, as all eyes are set on INEC, the politicians should learn to eschew violence and acrimony as that will help INEC focus on doing a good job. As His Lordship, Niki Tobi observed in Abubakar V. Yar’Adua (2009) 19 NWLR (pt. 1120) P. 117-178 that “… politics as it is played in Nigeria leaves a lot to be desired. There is so much acrimony, bitterness and violence. Nigerians play politics as if they are in a battlefield. It is not so. I do not agree that politics is a dirty game. It is a decent game; only some Nigerians made it dirty. The problem in Nigeria is the politics of winner takes all.” Really, politics is a beautiful and decent game. And our politicians should try to make it so. In Agbaje V. Fashola ( 2008) 6 NWLR ( PT. 1082) P. 144, the Court of Appeal per Dongban- Menesm, JCA, advised politicians to exhibit the “ spirit of good sportsmanship….When an election is conducted in substantial compliance with the Act, producing a winner, other contestants should concede. This concession will strengthen our fragile strides towards democratic governance. A few concessions here and there will enable the electoral process to progress on terra firma.” A word is enough for the politicians.
The conference noted the controversies that trailed election tribunals in the past and was unanimous that such should not repeat itself in the coming elections. The standard should be high this time around us all agreed. In the past, so many petitions were thrown away on mere technicality by the election tribunals. In Nwole V. Iwuagwu (2004) 5 NWLR (pt. 895) 61 at 88- 89, it was noted that “… in all election matters, the use of technicalities should be avoided. It merely helps to shut the opponent out. It never resolves the basic issues in controversy…. Boldness of a high degree is required of the Election Tribunals….” In Ogunsakin V. Ajidara (2008) 6 NWLR (pt. 1082) P.33, Agube, JCA equally noted that “Election Tribunals should endeavour at all times to do substantial justice and seek to determine petitions before them expeditiously and on the merits….”
What worried the minds of many was whether the country would be able to achieve the feat of deciding election petitions before the swearing in of elected candidates. This is not difficult to achieve but it is most onerous. The conference expressed shock that just a few months to the April 2011 general elections, some petitions arising from the 2007 elections are still pending in the courts. The Court of Appeal was the first to express this shock several years ago in the case of Nwole V. Iwuagwu ( 2005) 16 NWLR ( pt.952) 543 at 671, where Nsofor J.C.A. noted that “ it is embarrassing to say the least that almost two years after the general elections… some of the election petitions arising therefrom are still pending in some courts.” Looking at the nature of election petitions in the country, one is mindful of the fact that this may be an uphill task. Looking at the facts on ground, yours truly expressed the view that dispensing of election petitions before the swearing in of elected candidates is most desirable but still observed the opinion of the Court of Appeal in Mohammed V. Cop (1999) 12 NWLR (pt. 630) p.331 at 340 that “the guiding principle in the conduct of a proceedings is not how soon the case finishes but how satisfactory was justice administered.”
The conference called for the creation of special courts to try election offenders as this will curb election violence. I felt that it is the attitude of the politicians that breed election violence. Politics must not be a do or die affair. The conference rapped up by calling on the security agencies to be up and doing to able the country achieve credible election this year. The two day conference was an intellectual odyssey and ended up in high notes.
Chimezie Elemuo a commercial and litigation lawyer based in Port Harcourt . 07067408165.