Electoral Reforms: are the problems legal or social?

As usual the more we hear the less we understand. Apart from the ongoing intrigue in the power sector, nowhere is this statement more apt than with the proposed electoral reforms. In the last couple of weeks the media has been rife with news about the Uwais Report. As the story unfolded, we learnt that in addition to the Uwais Electoral Reform Committee (ERC) set up in 2007 to propose ways for credible elections, there was a nine-member Shettima Mustapha Committee appointed to draft the Government’s White Paper* on the report. And then, the White Paper was reviewed by the three-man Michael Aondoakaa Review Committee. I remember thinking there were one too many cooks with ladles in the broth and that all these reports on reports and reviews on reports is one of the reasons it has taken so long to hear the recommendations on electoral reform and will be the same reason why most of the substance will be lost in translation. Unsurprisingly, the general consensus (apart from those in PDP-land where independent thinking is frowned upon) is that most of the recommendations which would bring about the critical positive change to the electoral system have been dropped in favour of other recommendations.

The one jettisoned recommendation which has precipitated the harshest criticism is the recommendation that the Chairman of INEC be appointed by the Nigerian Judicial Council (NJC). At the first briefing on the issue, the reason for the rejection of this recommendation was “to avoid a situation where the President loses ‘control’ over the electoral commission”. Isn’t that conflicting? Why should the President who might himself be up for re-election want to be able to control the Chairman of the Independent National Electoral Committee?

In another briefing, the Minister of Information provided another reason for the reluctance to give up control of the appointment of the executives of INEC: to avoid undermining the principle of the separation of powers by asking the judiciary (NJC) to perform a function of the executive (making executive appointments). Technically, the Chairman of INEC’s role is an executive role and it makes sense that the reporting lines are to the chief executive of the country but the sensitivity of the role and Nigeria’s track record where election fraud is concerned, demands some independence from this same executive. Besides, the separation of powers excuse is weak because there are few if any political structures which adhere to a strict separation of powers, not even in the United States where their Constitution is largely influenced by the writings of Montesquieu one of the foremost supporters of the doctrine. Britain, our birth mother, prides itself in its unwritten Constitution where there is actually little separation between the arms of government and their elections have not seemed to suffer for this.

According to Iwu in a lecture delivered at NIPPS, Kuru a few weeks ago, reforms on the electoral process in Nigeria have been ongoing such as the establishment of the Independent National Electoral Commission Fund under Sections 3 & 4 of the 2006 Electoral Act and the establishment of the Electoral Institute to facilitate capacity building and professionalism in the Commission. I’ll let you be the judge of the impact of these reforms.

Iwu goes on to say that there are only four outstanding areas of electoral reform requiring constitutional amendment: the mode of appointment of Chairman and members of the Commission; funding of the Commission; adjudication of post-election disputes before the sweating-in of declared winners and the introduction of a system of proportional representation. From the details which we now know, the Uwais Report made recommendation on the first and the third and both recommendations were dropped. Campaign financing and the funding of INEC are both critical issues and it says something about how serious we are about tackling election reform because regardless of who appoints the Chairman and Commissioners of INEC – he who pays the piper calls the tune. But these are all technicalities on what should or should not be in the Electoral Act as the enabling law for INEC.

Which brings me to the next question: is the problem with our election process and system because of the gaps in the legal framework or because of our psyche? As much as I hate to admit it, underlying Iwu’s self serving position on this issue, there is some truth. He says ‘the greatest corrosive damage to the electoral process in the land is wrought more by the self-serving and contemptuous conduct of few members of the political elite - the deep pockets - than any other factor. ” The expectations we have that electoral reforms will miraculously and dramatically change our elections for the better are not realistic; law is not magic. Instead we need people with the right psyche executing the law and accepting the law. Not what we have now, where laws are only for law students or the masses who do not have the money or the arrogance to circumvent the law.


If for arguments sake the Federal Executive Council had accepted the recommendation of the Uwais Report that the NJC appoint the Chairman and Commissioners of INEC, what would this do on its own as a part of legislation? Not much really because there is no assurance that the NJC or even the appointees of the NJC are incorruptible, so we end up back where we started.

In the United States, the country we seem most aligned to in terms of political structure, the President appoints the Chairman of the Federal Election Commission (FEC). Maybe in addition to the consultations with the general public on expectations for electoral reform, the Uwais ERC should have looked at the FEC and how it maintains its independence from the same President which appoints its executives. My guess is that the answer lies somewhere within law and society: campaign and election financing and simply, the type of men (or women) who go into service for their country.

*white paper is the term for documents issued by government which lay out policy or proposed action, on a topic of current concern

Published March 24 2009