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.