Let’s Scrap INEC, Jail Officials And Have New Electoral Act — Constitutional Lawyer

 

Scores Judiciary Low For ‘Very Poor Showing’ In Election Adjudications

In this hard-hitting interview with LAGOSTREND , constitutional lawyer, Festus Ogwuche, provides his assessment of the state of elections and recent electoral adjudications in Nigeria.

He criticized the Independent National Electoral Commission (INEC) for its poor handling of recent elections and called for scrapping of the Electoral Act, 2022 as well as the implementation of Justice Mohammed Uwais’ recommendations on electoral reforms.

Ogwuche said both INEC, the political elite, the judiciary, and the professoriate have collectively failed the Nigerian people through validating sham elections, stressing that judges have been “pandering to the whims and caprices of the elite” to the detriment of democracy in Nigeria. Excerpts…

Why Does It Seem Difficult To Prove Electoral Malpractice In Nigerian Courts?

(In saner climes), elections cannot be declared if it is shown that there were discrepancies or malpractices and criminalities. And of course, some persons would have to be charged to court and prosecuted, and if they are found guilty, they should go to jail.

Within the ambits of the Electoral Act, 2022, some offences are created and in creating those offences, the Act did not exclude the INEC officials. Electoral officials who are found wanting in certain acts of criminality would also be charged.

But we have a strange situation in Nigeria where elections have been marred by discrepancies and criminalities and they (INEC) still go ahead to declare results. And because nobody goes to jail, INEC officials and party agents are gathering more strength in doing whatever they are doing, whether rightly or wrongly, in election conduct.

Now if the ballot is stuffed and you go to court, rather than tackle the issue of the ballot that was stuffed, the court begins to talk about technicalities, about whether the action was brought at the proper time or whether it is a pre-election and post-election matter and at the end of the day, throughout the court’s adjudication of the matter, it never talks about the ballot box stuffing. What do you say about that? That’s the problem because they are not doing the normal thing, for me, the fact of the election and the ballot or votes cast are not even the subject matter of post-electoral adjudication.

So, if that becomes the case, whether anybody can give proper electoral justice (becomes a problem). Because if you look at the entirety of the decisions, they never talked about the elections.

In property adjudication scenarios, what the tribunal would be looking at would be the number of votes. Who got the highest number of votes?

In Malawi, they had a panel, the constitutional court had to order that all the ballots should be brought to the court and they had to count them afresh. That is post-electoral adjudication.

You don’t adjudicate on technicalities, whether a man is wearing powder, or the man is wearing a short dress or whether he came to the court at the appropriate time or whether an issue is an internal or external party affair.

Anything that borders forgery or criminality is something that should come during the adjudication process in the post-election adjudication.

We have to go back to serious electoral reforms. Not just electoral reforms but also judicial reforms because the judiciary is even carried away with wrongs, perhaps even more than INEC itself.

At the end of the day, people stand under the sun and rain to cast their votes and the courts decide who won the election based on technicalities. In most cases, the person who won the election is not the person declared by the courts. In some cases, it is not the persons declared by INEC that are declared by the courts and so the courts are the ones who decide our elections. So, there is no credibility at all in the process if you ask me.

Many Thought INEC Learnt Lessons From The General Elections. What’s Your Take On Its Conduct Of The Imo, Kogi and Bayelsa Off-Cycle Governorship Polls?

INEC is not learning anything because the court has said INEC is at the discretion to decide whether or not to transmit results from polling units. Despite the fact that it is contained in the INEC regulations that results would be transmitted from the polling units, the Supreme Court discountenanced it, meaning INEC could do anything they like with election results.

When the judicial system would give INEC such a blank cheque, what do you expect? Particularly in a situation where we exist in a corruption-laden ambience.

So What Do You Recommend To Fix The Situation?

What I recommend as far as I’m concerned is rigorous reforms. If it is possible, we discard the current Electoral Act. I also recommend the implementation of Justice Mohammed Uwais’ recommendations on electoral reforms. Those recommendations as far as I’m concerned provide a road map to address the problem.

I am talking about a brand-new Electoral Act under the canopy of the Mohammed Uwais recommendations which I consider as a road map to conducting credible elections in Nigeria.

We cannot continue with this Electoral Act. A lot of loopholes are there which politicians exploit, which incumbent governments and the elites engage in to perpetuate themselves in office.

We are also saying that the current INEC as it is constituted needs to be scrapped. We must have an INEC that can stand the test of time through its independence and autonomy, devoid of interference. An INEC that will stand on its promise and its operations, very independently of outside influence of the executive and Legislative arms of government.

We cannot have an electoral process that will stand the test of time and be free of malpractices if we don’t embark on judicial reforms.

Because the judiciary itself is a very, very big problem in this issue of the conduct of elections. In the whole gamut of our democratic process, you cannot separate them (the judiciary) from the rot that has caused a lot of the problems. Particularly these court decisions that were churned out recently, sometimes you begin to wonder whether it is the same Supreme Court that gave those judgements in the Second Republic