And then there were none (for change)

Change is one of the most popular or overused words in any political campaign and Nigeria’s 2011 elections were no different. The airwaves, paper-waves and Internet-waves made it seem like the mere deafening strength of the clamour for change would be enough to force the universe to shift in our favour. It seemed like we all wanted a change: of those who represent us in government, our electoral process and the ruling party.

The inaugurations are done, the last rounds of elections and coronations in the legislature have been discharged with and the victory party planners have hopefully collected their fees. As the haze of election fever and winner euphoria is lifting and we are beginning to see a little more clearly; where is the change?

The presidency has remained pretty much the same– a PDP president who made lots of compromises and promises to win, surrounded by purely motive based advisors and a soon to be constituted cabinet which is rumoured to be more old than new.

The judiciary of course remains untouched by elections. Apart from the whispers of personal financial gain from election petitions, something which sadly not even our latest super hero the FOI Law will be able to do anything about, there is no discernable change for the benefit of the public.

That leaves the legislature; the only arm of government that seems to have undergone serious change with over 70% of the members being new to the National Assembly. In the Senate, 73 out of 109 are brand new and in the House of Representatives 266 out of 360 have never been in the House before. There is something about new people in government that infuses the public with hope especially when we are so aware of the antecedents of the old. For the Senate though, the change seems to end there – they are firmly in the hand of the old guard and their buzz word is neither change nor the ‘transformation’ ofPresident Jonathan, it is ‘continuity’.

This leaves within the legislature, the House of Representatives, where the recent coup against PDP interference in the selection of a Speaker bolsters our hope for change. (We’ll worry about the motives of the financiers of the coup later – for now we are just pleased that ‘zoning’ is taking a beating.) And for now, the tune from the House is pleasing: that it will not be business as usual. But it is too soon to say whether the unusual business that our Representatives will be about, will be the business which is good for us or the business which will be good for them and the few they serve.

Despite the picture of self service which a ‘welfare committee’ evokes, the creation of five new committees by the House is encouraging especially since there is a Media and Public Relations committee to hopefully manage all the bad press the House has gotten recently with Dimeji Bankole and the missing billions. However, it is this story of corruption in the House that tells us more clearly than anything else, that nothing has really changed beneath the thin cover of ‘new members’ and the sudden and convenient independence from PDP.

Bankole, the former Speaker who has been a guest of the Economic and Financial Crimes Commission, while singing for his freedom implicated the new Speaker – Aminu Tambuwal as one of the architects who designed the need for the 10 billion Naira loan in the first place and who is a key beneficiary of the loan (Tambuwal’s allowance allegedly increased by N14 million a quarter). It turns out Tambuwal is not so new after all and it remains to be seen how much change he is going to bring to the House in the execution of its duties.

Ironically, as Bankole completed his term with the corruption charges hanging over his head, Patricia Etteh who he replaced after her impeachment for corruption was cleared of all wrong doing.

It looks like the change we can expect from our legislatures, is not iron clad and so we need to support them by being loud and clear about some of the things we expect from them. For starters, that welfare committee of the House should have a twin in the Senate and they should focus their attention on the welfare of Nigerians with a review their benefits, allowances, compensation, salary, constituency mobilisation fees – whatever names they want to call what they get - we cannot afford them. The Governor of the Central Bank, Sanusi Lamido called them out publicly on their cost to the nation and they have no defence – they need to cut their benefits now. Then they should kill, quarter, burn and bury all thoughts of creating more states – we cannot afford those either. Instead the National Assembly needs to sit with the Constitution and make changes which will empower the local governments and reduce the powers of the state governors over local government revenue. The ‘development’ we sorely need is not the development of new Governors Lodges in glorified villages, we need to give the local governments, those closest to the people, the resources to carry out their duties.

And finally, we need our representatives to portray the dignity and humility of those who are there to labour on our behalf and not flash their ostentatious and rags to riches lives in front of us. At one of the many swearing-in parties held for members of the National Assembly last week, guests at a party carelessly stepped on and broke the glass plates which were used to serve them. No one paid any mind. Those broken plates, so carelessly stepped on signify the waste and carelessness with which our elected and appointed representatives treat Nigeria’s resources and the indifference with which we, the public, encourage the waste. All in all, not a good harbinger of the change we desperately need – let us hope those nonchalantly broken plates are not a sign of what to expect from the 7^th National Assembly.

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FOI Act, not just another ‘bail is free’ signpost?

In the midst of the cartwheels and congratulations about the long
awaited birth of a freedom of information (FOI) Act for Nigerians, I
am wary. The hesitation comes not because the FOI law has been
allegedly watered down or because I do not believe that the FOI could
herald wonderful things; I am tempted to pull the plug on the party
because I think…so what? So what if Nigerians have access to a lot
more information than they had in the past? The real issue is; what
will change?

Today, thanks to the reach, space anonymity of the Internet we have
access to a lot more information than we did a few years ago. Granted,
it is a little harder to sift through the sheer volume of what we have
access to in order to scoop the nuggets of quality information but it
is there. We know that Dimeji Bankole and the leadership of the 6th
House of Representatives borrowed and spent 10 billion Naira that the
House did not have. What have we done with that information? Years
ago, in the early days of the Obasanjo administration, someone thought
it was a good idea to publish the allocation of electricity for each
State in the newspapers. Then it stopped because someone else was
worried that the public might notice that the states considered as
‘opposition’ where getting the least amount of electricity even when
they had the greatest industrial activity. There was a tense period
while they waited to see if anyone had picked up on it…silence. No one
noticed. Even when the information is all around, pasting itself
desperately to our eyelids and morphing into a gas which seeps into
our skin, but still we feel and do nothing.

This means that while we will technically have more access to public
information, it is doubtful if this access will magically transform
our society. There are many other things which have to co-exist with
the FOI in order for it to work effectively and unfortunately we
cannot merely legislate these things into being.

We the people have to realise that while corruption has become a way
of life for us, there is a cost and that cost is captured in all the
things we complain about – the lack of basic amenities, the absence of
accountability amongst politicians and public officers and the slow
pace of development. With the realisation, then comes the desire to do
something about it, to take the effort, individually or collectively
to challenge those who are responsible. Challenges to the injustices
and inconsistencies which float to the surface do not always have to
be made through the courts – the favoured route of lawyers and
activists such as Fawehinmi and Falana. We can protest by boycotting
those responsible by refusing to be associated with them. Already this
is happening. Recently, a former Minister of Petroleum from the north
who went to a wedding fatiha and as is custom, took of his shoes
before entering the house. However while he did his part by taking off
his shoes, none of the people participating from the outside did
theirs; apparently, someone should have offered to hold his shoes for
him. So he looks round for a minute and then tries to hand his shoes
to a man standing closest to him. The man declines to extend his hand
and instead says loudly and clearly – “what did you do for us?” The
former Governor of Nassarrawa State, Doma got a taste of what is to
come when he attempted to slink out of Doma, his village to return to
Lafia, after the results of the gubernatorial election which he lost
were announced. His people created a barricade to prevent his
departure and invited him to ‘stay and enjoy’ the haven he had helped
create during his four year tenure. The rejection of corrupt, weak,
ineffectual, lazy, selfish public officers is slowly happening but we
need to ramp up the pressure. Complete social excommunication is a
good way to challenge the people in government who misuse their
mandate. We might not be able to create our own Tarhir Square to
insist on good governance, but if we shun their weddings, parties,
dinners, talks, book launches and refuse to invite them to ours, I
promise they will wither up and die as surely as the harmattan winds
dry up plants.

We need more than lip service from the government about
transformation. Real transformation in government is going to mean a
break from the norm and the norm is corruption and impunity.
Unfortunately, there is little indication that we are serious about
doing anything about all the major obstacles to our development: a
civil service bloated with conniving and devious people who take pride
in ensuring that nothing changes and the institutionalised corruption
which has resulted in the crater in our physical and mental
development, which billions of dollars should have filled. The United
Kingdom is preparing for the launch of the UK Bribery Act on July 1
2011, a law which they are marketing as ‘tougher’ than the United
States Foreign Corrupt Practices Act. The UK wants to use transparency
and zero tolerance to corruption as a competitive advantage for
attracting business and investments to their country. We on the other
hand have had the Corrupt Practices Act since 2003 and as far as we
know, no one has been successfully prosecuted under this law. A few
cases have been prosecuted by the Independent Corrupt Practices
Commission but nothing has stuck…and the message remains the same –
Nigerians are not serious about reducing corruption.

The problem is familiar. Walk into a Nigerian police station and there
is a sign somewhere saying ‘BAIL IS FREE’ supposedly there to inform
the public that we do not have to bribe in order to bail anyone out.
But what happens in practice? I think this is what the FOI will end up
as – a sign post saying ‘look at us we know what we are supposed to
do’. It is not enough to just know; we need to act. As we celebrate
the passage of the FOI law, for the development in our awareness which
the law signifies, the law needs good followers to be the teeth in the
bite of the law to it does not end up as a ‘bail is free’ sign –
meaningless.

Published in Thisday Lawyer June 7 2011

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The state protected abuse of Nigerian women

As the preparations for the inauguration of President Jonathan in Abuja were being finalised last week, Nigeria was front page news in Kenya. The battered face and neck of Tess Wige, wife of Nigeria’s High Commissioner to Kenya, Dr. Chijoke Wilcox Wigwe were plastered all over the front of the Star newspaper. The grandmother of five who had to be operated upon after receiving a beating from her husband and who is now in danger of paralysis due to the injury to her back decided to end years of silence about the abuse she has received. As we read this we may or may not have proof of the sincerity of President Jonathan and his wife towards the real empowerment of women who can make meaningful difference to Nigeria but one thing is sure; all the pending legislation to protect Nigerian women will have been aborted and tossed out – to start all over again with the 7th Assembly - once again at the mercy of the merciless legislators who parade themselves as representatives of Nigerians. The Violence Against Persons Prohibition bill which would have provided a little shelter for battered women (and others who are regularly brutalised by those in more powerful positions) was scuttled by the 6th Assembly. The Widowhood Bill to shield women from the degrading customs required from them as they grieve for their husbands and the fathers of their children remains still born, lost in the corridors of the National Assembly as women sit covered in ash and drinking the bath water of dead corpses. What is it about us that we refuse to be civilised about the treatment of our mothers, our sisters, our wives and our daughters? Where does this scorn come from? As women struggle like ants weighed down by raw cane sugar for equity and fairness in dealings at home and space at the table to form policy which will affect the future of our children - we continue to be beaten at home and humiliated in public. As the world looks upon our shame – shame which we have become unfortunately immune to, the head of the IMF had to resign in disgrace for molesting and assaulting an African who worked in the hotel where he lodged. The mere allegation, made by a woman who might not even be a US citizen was enough for the authorities to board a plane and pick up one of the most powerful men in the world – touted to become the next President of France and put a huge spanner in his career wheel. And Dominique Strauss- Kahn is still technically innocent until proven guilty. However in Nigeria our state and its officers sanction violence against women with their inaction, their silence and their refusal to even pass laws which will still have to pass through the hurdles of enforcement. As the Kenyan and Nigerian civil society organisations have sprung into action to push through the layers of protocol required to remove Dr. Wigwe’s immunity as a representative of Nigeria – and recall him as Nigeria’s envoy, it brings it closer to home what is at stake for us. On one hand there are calls for him to be prosecuted in Kenya – the scene of the crime – because some fear that Tess Wigwe will not get justice in Nigeria especially against an elite member of government and society. From what we know about our judicial process, the case will quickly stretch out for years with Wigwe probably still enjoying the prestige of being a member of Nigeria’s diplomatic corps while his wife will remain bruised and ostracised by a brutalised society which knows only how to align with power. However, if President Jonathan and the 2015 class of administrators are serious about improving the lot of women and by extension society, then Nigeria needs to recall Dr Wigwe immediately, suspend him from service and ensure he is prosecuted fairly and quickly. And when and if found guilty, retired immediately. The reasons why Dr. Wigwe must be made an example of on Nigerian soil are very simple. One, as long as women continue to be beat up, degraded and abused in all sorts of ways in the home – with the silent complicity of society – this same society will continue to reject women in positions of power. A few weeks ago, Timipre Sylva, Governor of Bayelsa was reported to have slapped a female guest at a party – of course there are various versions of the story but there is no trail of crumbs without a cookie. As long as public figures continue to uphold the culture of abuse against women, then it will take a lot more than 15 women in the cabinet to change perceptions. Two, if Kenya successfully prosecutes Wigwe for assault, battery and causing grievous bodily harm then Nigerian men will continue to feel safe and will save the beatings for their wives for when they are on Nigerian soil. It is only when our courts and judges are encouraged to handle enough of these cases that we will begin to build the expertise and the confidence that the legal system needs to protect women from domestic and other violent crimes. All the progressive jurisdictions that we love to borrow from; places our legislators, executive and judiciary like to visit to supposedly learn from have all used the judiciary at one time or the other to handle hard social issues like this. What was Brown v Board of Education about? It was about ending segregation in American schools and someone had to be the Brown who would bring the case to court. So let Tess Wigwe be the Wigwe in Wigwe v Wigwe which will give Nigerian women the protection they so, literarily, sorely and achingly need.
If the decency of a nation is measured in the way it treats its children, then it is not far fetched to assume that for a society to be decent it must also treat the mothers of its children well. The Chinese say it is a curse to say ‘may you live in interesting times’ – I take the interesting times we live in as a blessing and it is the good luck of President Jonathan to be given this great opportunity to walk the talk of election promises and do right by Nigerian women.

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Beware the monster slayer becomes the monster

In order to successfully fight something, sometimes we have to embody it – to understand it and then decide how to dismantle it. Sometimes all we have to do is study it to understand its habits and manifestations. But other times, like a vaccine, we have to imbibe or take a little bit of the evil we are trying to get rid of before we can successfully overcome it. But what happens when we take too much of what we are trying to fight and we loose ourselves? The lack of social and formal justice in Nigeria is so deeply engrained in our system that it is extremely hard for us to fight the evils around us legally. This problem is especially disturbing in the battles to halt the cyclone of religious and ethnic bigotry which is engulfing the north and middle belt and to give women a firmer safer place to participate in governance. As a result, many monster slayers are becoming monsters themselves. A lot has been written and said, snarled out and spat up about the violence which followed the presidential elections and a lot of it has been reactionary as opposed to reflective. Without intent at justifying any type of violence, those who took to the streets to burn and loot and kill did so because they were allegedly upset at the results of the presidential elections. Why were they upset about the elections? Because after 12 years of PDP governance in particular and 50 years of independence, they are not satisfied with the state of affairs and their plans for a peaceful change – using the weapon of the ballot was taken from them. Arguably, the results of the presidential elections indicated the way the rest of the elections would go – with hated governors and state legislators remaining in office even when their antecedents have been woeful. The reaction may or may not have been the spontaneous rage of growing frustration with their powerlessness to be noticed, to be heard and to do anything meaningful about their lives. We are no strangers to election violence and neither are we distant cousins of religious and ethnic based rampage; but what seems to elude us is a sense of balance in looking at both sides of the equations. The newspapers are filled with statistics about how many people were killed in April (800 according to Thisday of May 17 2011) and how many churches were burnt (150) and rightly so a lot of coverage has been given to the members of the NYSC who died in the service of their country…and then silence. Muslims were killed too – there is a mother who was forced to watch her husband her 12 year old son killed before their bodies were burnt to a crisp along with their house and everything they owned. Many mosques were allegedly razed in Kafanchan and Zankowa and there are thousands on both sides displaced and living in camps in Kaduna but the media is oddly quiet about sharing these stories – so on both sides of the divide there is pain. But what hurts and keeps hurting like shards of glass imbedded in the soles of feet is the sense of abiding injustice and this is where the sense of frustration and hatred for each other grows.
Many Nigerians, both Christians and Muslims from different ethnicities– seem to agree that the Muslims in the north are the ones who always start ‘it’ and so it is only right, just, fair that the Christians give as good as they get. Fair enough – but when do you know when you are no longer defending and are now the attacker? Is fighting fire with fire the best way to handle a fireball or do you use water and/or sand? In this case the advocates for violence on both sides are thinking passionately but not logically and spurred on by angry words in the media and the anonymity of the Internet, the divisions grow. To successfully fight an evil – you have to empathise with the evil; not become the evil. You have to find the cause of the evil not just treat the symptoms. If it is generally accepted that the North has the worst and the lowest indices of development, poverty and education, then surely the frustration is understandable even when the violence is condemnable. However little public analysis has been done accepting the dismal state of affairs and what the solutions are. It is not clear what yet another investigative panel report will achieve. Like a never ending Animal Farm, the other ‘fight’ where the oppressed are taking on the characteristics of the wrong doers is in the crusade to get equitable participation of women in the public sphere. The benefits of having half of the population actively participating in governance and contributing to social policies are no longer in dispute. However, as women continue to be marginalised and kept out mainly due to custom and the unfortunately human inability to share power fairly, the injustice of this situation is spurring women to act like men in order to play and win in politics. Totally understandable especially if you think about issues practically – you can’t get into a bare knuckles kickboxing ring and expect to use gloves. But maybe there is another way. A way which does not include women joining a game where the rules are already rigged and stacked against them – by either using laws, enforcement and incentives to change the rules of the game or by starting other games which will attract other people. This way, women can get to showcase the best of their strengths and skills by using what they know about the effects of consistent marginalisation and under-representation to pull all the many divisions in our society together and campaign for a more equitable formula (than ‘zoning’) for ensuring representation. While the dynamics of power at every level from the basic social unit, the family to the most complex social unit, governance in the public sphere is complicated, women need a deliberate strategy which differentiates them from the men. It is not enough that women constantly react to the environment created by men; oppressing because they are oppressed, cheating because they are cheated and conniving and manipulating because they feel hard done by.
Until those caught up in religious and ethnic wars - either by swords or by words and until those caught up in the battles for gender representation – either by embodying the worst attributes of men or by attacking what is special about themselves, we will not resolve the issues. On the former, the Sheik Lemu led panel on election violence must culminate in at least three things in order for us to begin to close the divide – a published list of those who should be prosecuted for hate crimes; compensation for the loss of life and property suffered by all who were caught in the violence (not just families of the members of the NYSC who were killed) and a truth and reconciliation process so everyone gets to share their stories, look their tormentors in the eye and hopefully heal. On the latter issue, female politicians need to stop justifying the neglect of their duties and the cheating of their constituents and women activists need to be harder on the female politicians in holding them accountable to their office – no free passes for the women just to encourage them – let’s be hard on the men and women equitably and the support of the people will come. Women can play politics without descending to the lowest common denomination. If we all keep embodying the very same things we claim we are fighting against, we will keep paddling in one place – burning energy and going nowhere until we sink from exhaustion. As the government class of 2011-2015 prepare to take over on May 29, let us help them make a conscious effort to positively transform the way we push for change in Nigeria.

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will the promise to women be the first broken promise?

A lot of promises were made in the heat of the campaigns and a lot of campaign promises will broken under the magnifying glass of reality. As the fierce lobbying to alter the zoning formula of the Peoples Democratic Party (PDP) wages and the ministerial list overflows with hundreds of funny, scary and down right outrageous names, women are battling to ensure that they are not forgotten. Voices are raised to ensure that President Jonathan does not forget that during his one-man debate on March 30 2010 he said women would make up 35% of his cabinet, something no government pre and post independence has ever done. Banners are flying to ensure that as PDP carves up the country for the most lucrative government positions, women get a relatively fair share within the executive and the legislature. And equally important, daggers are raised, poised to stab to death, the dream of increased participation of women in setting the agenda for the development of Nigeria. So to be or not to be? To be for women and 35% representation in government means to recognize at least three things. One, that Nigerian women have contributed to society for years and in this time of great need caused by the shrinking of the global network and the exponential growth of available knowledge, women need to get more publicly involved. For years their valuable contribution to society in the basic social unit – the family has been discounted and only in the private sector are they allowed to thrive and compete honestly and successfully. Two, that gender affirmative action is the fastest way to bridge the gap between men and women in positions of power and decision making. Insisting on a minimum representation for women in all arms of government is not a Nigerian invention. Within patriarchal Africa Rwanda, South Africa and Botswana lead the way with Rwanda the new poster child for development ranking as number one in the world for the most number of female legislators. In macho Latin America more than eleven countries have minimum representation for women and in resolutely Islamic Indonesia, Pakistan and Jordan, they too are acknowledging the issue and have taken the leap of faith for women. Some find the idea of gender affirmative action to be patronizing and/or unreasonable either because women should be purposefully taking 50% of all positions or because women belong to cooking pots and diapers; they refuse to acknowledge that women are at a disadvantage and the race at this point can never be fair. No matter how hard and diligently we practice, if Nigeria insists that women start running from the starting line when men are more than half way through, then we will never catch up. There has to be a concerted effort to close the gulf in fair gender representation within society. And three, there is a reason why nations are encouraged to utilize all their human resources – because having men and women actively engaged, participating and representing the different needs of various factions of society ensures sustainable development. To not be for 35% representation for women in all spheres of government, there are a few reasons. One, is that so far most of the women – especially in elective positions have been uninspiring. The mildly satisfying defense that the men are just as insipid, still wins women no points because for cultural and psychological reasons, Nigerians prefer non performance from men to non performance from women. Besides, what special edge are women bringing to the table if they are going to act just like men? Some part of the truth is that the reason elected officers achieve little is because historically they were not held accountable; not by the electorate and rarely ever by the civil society organizations. However, with the 2011 elections we caught a glimpse of what arrogant underperformers (because Nigerians will excuse failure in a humble person) will routinely face during elections – they will be voted out where our votes actually count. Two, that as far as appointive representation is concerned, women in decision making positions have no incentive to focus on development and social policies which will improve the lives of Nigerian women. This is because as Prof Pippa Norris of the Harvard Kennedy School points out, “women appointed by a president or party leader lack the democratic legitimacy that arises from an independent electoral or organizational base”. The women come to function as mere appendages of powerful men to support the party position and since the people did not vote them in – they owe the people nothing. So while women might celebrate the inclusion of these women in the cabinet and decision-making, in real terms, there is little progress in terms of policies and programs which deal with issues important to women. There are two key issues at stake: how to balance quality and quantity and how to hold elected officers – regardless of gender, accountable to their office and their constituents. We want to be fairly represented by women and men who know the issues, have probable solutions and have the will to push through with the very many reforms which Nigeria needs. There are women who have proven themselves in their fields and finding 15 of them for the cabinet is as possible and certain as finding seeds in a watermelon. We do not want party chieftain wives, governors daughters or dusty old relics who will be grateful for the chance of one last feed at the trough and this applies to the men too. A scorecard for legislators and senior members of the executive will be kept and published once the race for 2015 begins – it is only by publicly naming and shaming that those who pretend to serve will be weeded out. What President Jonathan’s cabinet is going to look like after May 29 2011 is anyone’s guess but one thing will be immediately clear – whether or not he is a man of his word. Because by the composition of his cabinet shall we know what his real plans are for 2015 and how seriously he wants to address the national debt of marginalization which Nigeria owes women.

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INEC, always the defendant never the plaintiff

The elections are over, the electoral petitions and lawsuits have started and lawyers and other members of the legal system will be skipping all the way to the bank. The opposition was as taken in as the electorate with the mythology of Prof. Jega and the free and fair lemon. In many areas, the opposition was unprepared to deal with elections as usual while in other parts they were armed with cameras and recorders, the better to prove their cases. The electorate also had to contend – albeit to a lesser degree if we trust the media has not been guilty of under reporting – with electoral violence, intimidation, juicy soul wrenching persuasion like N200 and a bag of maggi cubes, ballot box snatching and just plain voter fatigue from trooping out to line up and vote not once or twice, but three times within a short period of time. The remedy for those aggrieved in both scenarios rests with the legal system and the powers of the Independent National Electoral Commission (INEC) to influence the two broad types of legal action that we should expect over the next few weeks and months. The first and more immediate category is where candidates who are contesting the results of the elections file a petition with the election tribunal as representatives of their constituents and themselves. Unfortunately, there are several problems for a petitioner in this type of suit. The first is that while the co-operation of INEC is critical to provide evidence such as ballot papers, results sheets and other documentation, INEC acts like a defendant in all cases. With this mindset of defending the free and fair elections it has just managed, INEC can hardly be considered an objective witness, yet it is joined as a party along side the alleged perpetrators of electoral fraud. Why is INEC automatically on the side of the defendant instead of on the side of the plaintiff, actively prosecuting those involved in thwarting the mandate of millions? The answer is between the provisions of the 2010 Electoral Act (the Act). One such provision is Section 137 of the Act which advices that instead of suing electoral or return officers who are implicated in electoral fraud, petitioners should make INEC the defendant. While on one level, it seems logical that INEC should be liable as the employer, this provision gives electoral officers and other representatives of INEC a free pass to aid and abet in cheating the electorate because they know that they will never be personally liable, and INEC will do all it can to save face by disproving the allegations. The second problem is the length of time it takes for election petitions to be heard and concluded. It is a long standing problem that Nigerians are all aware of, yet all the recommendations made in the Uwais Report on resolving this issue were ignored. Instead, like the ostrich intent on ignoring what its eyes tell it, Section 134 (Time for Presenting Election Petition) provides a timeline of 291 days within which a petition can be filed, judgment must be given and appeal concluded. This means by law, the entire process will take at least 10 months. We know that this can stretch as fluidly as a rubber band to close to a full term of office as it did in Ekiti and Osun States; very cold justice for those who are being denied the right to represent their people and vice versa. In the Bush v Gore case in 2000, the United States Supreme Court ruled on the Florida recount issue on December 9 2000, 32 days after the November 7 elections. Are there no lessons to be learnt from how other jurisdictions manage their election petitions? Third comes the unfriendly burden of proof which lies heavily on the petitioner. According to Section 139, the petitioner must prove that the fraud substantially affected the result of the election and that the election failed to substantially fulfill the principles of the Electoral Act. This means, if for example, fraud is proven in the Bauchi gubernatorial elections (with electronic evidence which we hope our Evidence Act will recognize), the judges can look at all the evidence and say: “yes there was fraud but generally the principles of the Act were complied with in terms of the processes followed such as voter verification and duly signed result sheets and the fraud did not really change the results of the election”. In other words, if the evidence tendered only reveals 419,419 dodgy ballot papers in favour of Yuguda, this means Yuguda who allegedly won by 771,503 votes will still have 352,084 votes against Tuggar’s 238,436. The argument would be ‘Yuguda would still have won, he did not even have to cheat’ and so he will remain the winner. And if by some chance the election tribunal rules that the fraud was substantial and asks Yuguda to step aside, he can appeal and the worst case scenario is that he would have illegally occupied office for close of two years and no one will prosecute him for his crime. Completely scot-free. There should be fairer burden of proof especially when the person being challenged is an incumbent. It would also be helpful if there were legal repercussions for those who illegally occupy office because of electoral fraud. Which brings us to the second category of lawsuits: where INEC is the plaintiff prosecuting those who are guilty of electoral crimes. The Act is replete with provisions prescribing the punishment for different crimes right from the registration process and through the elections but as far as we know, the prosecution of Nigerians for electoral crimes is something which takes place on another planet in complete secrecy. In order to curb the wanton display of disrespect and disregard for the Nigerian electorate, the free and fair INEC needs to start publicly prosecuting those how have been found complicit in election fraud, violence and other crimes. For instance, Heineken Lokpobiri, contesting to represent Bayelsa West Senatorial District was one of the first individuals singled out for election fraud right after the National Assembly elections. The papers reported that he was arrested by State Security Services operatives and since then, silence. If INEC wants to maintain the halo of free and fair, it cannot stop at defending itself before election tribunals; it must also prosecute. INEC cannot afford to sweep Lokpobiri’s case under the umbrella of compromise and reconciliation. The high and mighty along with the young and learning such as the National Youth Service Corps members, Arop Naomi Ebiem and Gloria Innocent who along with Ikechukwu Umezude were arrested for electoral malpractice in Enugu should all be brought before the courts by INEC. For better or worse, INEC has immense legal resources at its disposal. It has legal officers which can prosecute and defend and according to the Act it can also rely on state and federal attorneys general. It would be the first couple of steps on a thousand mile journey, the continuation of some of the precedence setting we have seen from INEC in 2011, if it can take its responsibilities as plaintiff seriously and ease up on its role as defender of the defendants who are most of the time, the most serious detractors of INEC’s somewhat well intentioned plans. Only then will we begin to see a balanced and concerted effort to tie all the lose ends which keep tripping us up in quest for really fair elections.

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Credible but not ‘free and fair’

“The Nigerian elections were credible, not free and fair” said a highly respected member of the African community who was head of one of the international observer missions. In other words, “it is believable that the winner won but that does not mean he won fairly”. In the aftermath of the results of the presidential elections being announced, the violence which has followed and the political ramifications and fallouts which might still occur there are several issues which remain unclear and unsaid. And if we and our government are sincere about really resolving the issues and moving forward we need to take these issues into consideration. People are questioning how free and fair the elections really were; the veracity of voter turnout; why the supporters of CPC are engaged in ‘senseless’ violence in states which CPC won; and why people cannot accept loss gracefully? These are the noisy questions. The quiet questions being whispered into the soft high bellies of diplomats, business moguls and foreign policy experts are: how stingy can we be with the truth? What would be the real impact of what we know to our source of oil, to the stability of the region and to the reputation of democracy in Nigeria, and indeed Africa?
Without a doubt, we have seen an improvement in the delivery of elections in Nigeria. There is increased transparency for parts of the process and we see some strategy going into the planning. The good news is that the Independent National Electoral Commission (INEC) has a benchmark by which future elections will be measured. INEC has set certain standards for the way elections are managed and the expectation of Nigerians is that ‘it can be done right’ and the election processes will continue to improve. The bad news is that, as everyone has pointed out – the elections were still far from perfect. If elections in Nigeria in the past have been ranked at minus 8 out of 10, then the 2011 elections have moved us to a ranking of 2 out of 10. So far only CPC is contesting the legitimacy of the presidential results; and rightly so because at the very least the voter-turn out in many parts of the country is suspicious. Of particular note were the exceptionally high turnout figures in Abia (77%), Akwa Ibom (75%), Bayelsa (85%), Bauchi (63%), Cross River (63%), Delta (68%), Edo (74%), Enugu (62%), Kaduna (65%), Imo (84%), Plateau (62%) and Rivers (76%) states. This is against the national average of 53% (which is itself inflated by the unnaturally high figures) and the historical voting patterns of Nigerians which show that high turnout is atypical. The collation process seems to be the weakest link in the election management process and INEC appears to have been ineffective in its oversight function in monitoring and controlling the collation process. This state of affairs, along with stories of fantastic sums of money being used as incentives, raises doubts about the authenticity of some of the figures arising from this process. According to one report, PDP might also have a reason to doubt the integrity of some of the votes for CPC because of the lingering question on under-aged voters in the north. But as questionable victors, who are trying to avoid scrutiny, it is not likely they will point oil stained fingers at anyone. The bottom line is that the tag ‘free and fair’ should stick in our throats the way pure water bags clog up our drains. And this is where law, order and justice come in.
Without a doubt the judiciary is complicit in where we find ourselves today. If Nigerians know that they can get comfort and redress for wrongs from the courts, then people would not feel so desperate to take matters into their own hands. No plaintiff in Nigeria, challenging a presidential election against an incumbent, has ever gotten judgement in their favour. At every turn, INEC refuses to ever see itself as neutral and instead staunchly camps for the defendants to insist before heaven and man, that the elections were free and fair; and the injustice builds up and up until it explodes. It is the same exploding injustice that has resulted from years of sweeping the killings amongst Muslims and Christians under the carpet of ‘political peace’ which continues to plague us all. Peace built on injustice is not sustainable. Since the civil war ended, killings in the name of religion have become normal; enquiry panels are set up to investigate, no one is publicly held accountable or punished but the media reports that things have returned to ‘normal’. But nothing is ever resolved and with each successive excuse to hack at each other for fraudulent elections or imposed candidates or just plain pain, both sides take it – riled up by years of being told to be patient and forgiving while injustice continues to flourish. All our elections since 1959 have been marred with fraud and violence and a cursory read through the observer reports or a search on Google will get you details. We already knew that there was going to be violence so why weren’t our security and intelligence agencies better prepared? By the evening of Saturday April 16 2011, stories of violence had started filtering in from Bauchi and as INEC started reporting the results, why didn’t we think of sending troops to areas where trouble could be anticipated? Instead we prefer to wait for order to completely break down before we start calling for peace and forgiveness: tired and empty words for those who cannot get justice from the legal system and who continue to bear the brunt of the Federal Government’s inability to secure the life and property of its citizens. Each time we hold elections we have an opportunity to let change happen peacefully or we allow ourselves to be dragged further and further away from building on our collective lessons to do better. We allow a few to make a choice about sacrificing our interests, our property and sometimes, even our lives for the sake of the larger picture. And we need to start asking, does this larger picture not have room for the peace that justice brings? Does this larger picture not have room for Nigerians to choose and reject fellow Nigerians at the polls without the interference of the incumbents and their agents? And does this larger picture not have room for a Nigeria where everyone can enjoy the benefits and services of a functioning and accountable government? The judiciary has a choice – it can try to rid itself (with our help) of the stigma of corruption and stand nobly and less financially flush, on the side of what is fair and just to restore confidence in this institution. INEC has a choice – it can take swift action to rectify the inefficiencies in its processes and ensure that today’s elections are not only seen to be credible, but more free and fair than they were on April 16. The opposition and civil society organisations have a choice – to guard the votes of the people as well and as honestly as they can and start strategising for peaceful civil disobedience if they believe the will of the people has been kidnapped and sold to the bidders with access to the excess crude account. And we the voters have one last choice to make in the 2011 elections – to play the role that the majority of us have played with grace and conviction – to go out and conduct ourselves responsibly and vote. Our vote is not only a declaration about what path we want our country to take, it is also an article of faith, that if we are consistent about our expectations, we will get free and fair elections…maybe even, today.

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