Unravelling the electoral riddles

Will elections still hold in April? This question agitates the minds of many Nigerians. Group Political Editor, Olawale Rasheed, examines the electoral complications, claims and counter-claims of the Independent National Electoral Commission (INEC) and opposition political parties as well as possible solutions through the judiciary.

THE nation is in suspense as far as next month’s polls are concerned. The citizenry appear confused and disillusioned over uncertainties surrounding the polls. A web of legal and constitutional entanglements put the voters in a state of expectancy. The more stakeholders attempt to clarify and reassure the people, the more the citizenry become confused. As Prof. Maurice Iwu, chairman of the Independent National Electoral Commission (INEC) continues to assure the people of the commission’s preparedness, so are other posers and questions raised. And as the Federal Government flexes its muscle, so is the opposition threatening fire and brimstone. The political class is in a self-consuming power struggle and security apparatus is being challenged by private armies of political office seekers.

The issue today borders on credibility and legitimacy of the electoral process. In the words of Prof. Iwu, “nothing has happened so far to distract the commission from the credibility of the planned polls. “If anything, it is our strive to ensure a credible polls that is raising the tension in the polity. Electoral legitimacy can only be a product of a credible electoral process which can guarantee a free and fair election. The reforms we have introduced in the Nigerian electoral process are capable of guaranteeing and delivering credible electoral results,” Iwu argued.

Instead of the doubts being cast on Iwu and INECn, the electoral boss believes Nigerians should commend the reforms which he said were the consequence of hostility to him and his men. “You said we cannot conduct credible polls, but you have not talked of what we have introduced that can guarantee credible results. For the first time in Nigeria’s political history, we have produced an electronic voters’ register. Even if some people were left out, they will get registered soon after the election. This is a database that will be continuously refined.

“How can you have credible elections when you don’t have credible a voters’ register? With the register, ghost voters are things of the past. Your fingerprint is there,” he explained. Another reform, he explained, was the announcement of result at each polling unit, such that ballot boxes are counted at each booth instead of the collation centre: “This is to remove incidents of ballot snatching.

“We also have a back up in recording the results. Electronically, the results are transmitted to about three centres. And contrary to reports, ballot papers and not voting machines are still going to be used as in previous elections“, Iwu explained in his bid to disabuse the minds of Nigerians. Beyond the above, other areas border on the issue of printing of ballot papers and acquisition of ballot boxes. Here, Iwu scratched the surface of what he called confidential operations of the commission. “As at today, ballot boxes are largely in the states. As to ballot papers, we have an underground facility capable of printing the required quantity. And we are far ahead of schedule.

“Let me say that operational and logistics issues cannot disrupt this election. If we compared where we were in 2003 to today, I would say we are far ahead. I can assure you about that,” Iwu affirmed. There are however two sides to an election – the operational and the political environment. Nigerians largely scored the commission low on both counts. It however appears that the greatest threat to the election is the political rather than the operational environment. If the electoral body is to be believed, all material needs for the elections are in place.

What is generating heat is the politics of election management. Iwu made the point that the commission is more interested in the operational rather than the political aspect: “I think my real job is to conduct elections and announce results. The politics of it should not be my business.” Iwu may be wrong on this count as the politics of the electoral process is now threatening the exercise. Because the Constitution empowers the commission to organise elections, the body operates largely in a political and constitutional environment. That is why the present puzzle is about all stakeholders including the commission. And what are the issues in this respect? The first has to do with the extent of the powers of INEC in the organisation of elections. The second hovers around the alleged usurpation of the powers of the judiciary, especially with respect to disqualification of candidates.

Others include the argument whether Section 137 is self-executory without any recourse to a court of law? Whether the electoral body can defy a court order stopping the holding of election or directing the inclusion of a candidate on the ballot? And more importantly, the believe that INEC as currently constituted, operates under the operational direction of the presidency. The issues are complicated. It is not about ballot papers, ballot boxes or voters’ register. The crux of the matter centres around ambiguous constitutional provisions, conflicting court rulings and influence over the commission. To these should be added deep seated suspicion of the electoral body which Iwu called electoral mindset.

A recent review of both the Constitution and the Electoral Act reveals a loophole which either parties can exploit. While Section 137 stipulates conditions capable of excluding an office seeker, it was silent on which body is to apply this provision in practical terms. Curiously too, the Constitution does not provide a guide as to what happens if an indictment is challenged in a court of law.

The electoral body believes that application of Section 137 falls under its jurisdiction as granted by another section of the Constitution which mandates it to organise and supervise the conduct of election. Its critics think otherwise, citing the Electoral Act which confers powers to disqualify on the court. As to the last point, there is also a lacuna. The Electoral Act refers to false information on affidavits sworn to by candidates. If the information on the forms are correct, that particular section of the Act won’t apply. This is the argument of INEC in the case of Vice President Atiku Abubakar.

Just as the Constitution was inexact as to which body should apply Section 137, the Electoral Act also restricts cases where the court can receive petitions seeking the disqualification of a candidate. The situation is so fluid that both parties are laying claims citing the same Constitution and Electoral Act. When ambiguity exists in legal matters, the judiciary is the final arbiter. In the present scenario, another conflicting court ruling is deepening rather than clarifying the ambiguity in the melodrama. The recent court of appeal ruling started with near endorsement of the powers of INEC to screen and apply constitutional provisions, but closed by affirming that the commission has no power to disqualify candidates.

The ruling, for example, stated that under its powers to organise elections, the commission cannot close its eyes to provisions of the Constitution in the conduct of its activities. It specifically hinted that the Constitution largely disqualified some candidates ab initio. Yet, the judge denied INEC that implementation prerogative by concluding that INEC cannot disqualify candidates. This is the ambiguity. If the commission is expected to apply the Constitution in the discharge of its functions, why is it being denied the powers to give effect to Section 137?

The ruling largely satisfies both parties (INEC vs Action Congress) to a certain extent. By conceding supervisory powers to INEC, the commission was happy. By stating that INEC cannot disqualifies candidates, the AC felt triumphant. Yet, both parties have appealed against the ruling. For AC, if INEC cannot disqualify candidates, then it should not have the power to apply Section 137. For INEC, if it is not expected to close its eyes to infractions on the Constitution, then it should have the power to disqualify candidates. The appeals are awaiting processing and ruling.

A related development that may play out in days to come is court orders and compliance by relevant authorities. If a candidate affected by Section 137 is cleared by the court to contest, which should INEC obey – the court order or the Constitution? If the court halt the holding of the election due to alleged breaches of Electoral Act, which should INEC obey – the Constitution which mandates the conduct of elections at specified periods or the court order?

Turning the scenario around, what happens if the court noted breaches of the Electoral Act, but still okays the conduct of the elections? Will the legitimacy of the resultant government be called to question? Many analysts were however quick to point out that INEC has no choice in this case because interpretation of the Constitution and extant laws is the sole prerogative of the judiciary. What judges make out of a particular provision of the Constitution are adjudged as their choices informed, and of course, by deep deliberations and reliance on precedents.

Considering the stance of the courts in recent cases, many expect the judges to fill the gaps created by loopholes in both the Electoral Act and the Constitution. The tradition, as is the case in the United States, is that judges make laws for the nation through the interpretation of the Constitution and other laws. Judges handling the appeal can rescue the nation by interpreting such ambiguous provisions as to whether it is INEC or the courts that can disqualify candidates.

The issue of polls postponement in the case of established breaches of the Constitution and the Electoral Act can also be determined by the judges irrespective of what positions parties to the legal tussle have taken. If such conclusive interpretations are made at the Supreme Court, all the parties should have no choice than to comply.