Will the creation of Electoral Offences Commission aid speedy trial of electoral offenders? Lawyers say yes, no. AKEEM NAFIU reports
Some senior lawyers have expressed divergent views on the need for the creation of Electoral Offences Commission as a way of ensuring prompt prosecution of electoral offenders.
To the proponents, the creation of Electoral Offences Commission will not only help in prosecuting electoral offenders, but will also serve as a mechanism for electoral accountability. However, those who are in opposition believed there are sufficient legal statutes to effectively deal with electoral offences.
The lawyers’ position was borne out of various calls, at different fora, by INEC for the establishment of a Commission to handle electoral offences, amidst mounting concerns over the monetization of the electoral process by politicians. The electoral umpire said the speedy passage of the National Electoral Offences Commission and Tribunal Bill by the National Assembly will checkmate vote-buying.
Speaking on the issue, INEC’s Resident Electoral Commissioner in Lagos State, Olusegun Agbaje, said the passage of the Bill would ensure speedy trial of electoral offenders. He said the existence of a platform for speedy investigation and prosecution of vote buyers, sellers and other electoral offenders will guarantee a hitch-free general election in 2023.
Agbaje said: “There are so many issues to this matter. The judicial aspect is there, security agencies are there. INEC cannot monitor all these offenders. “There is no way we can be conducting elections and at the same time, watching people that are buying the conscience of voters with money, food or other things.
“That is why the commission has been asking the National Assembly regularly to finish its work on the Electoral Offences Commission and Tribunal Bill to become law.
“When we have this, it will be just like the Economic and Financial Crimes Commission, to monitor and investigate the menace of votebuying and other offences. It will be like security agency for INEC. Their job will be purposely for this and they will be all out on election day. The vote buyers and sellers are giving INEC a bad name, however, it is not the duty of INEC to monitor this.
“When we see this kind of thing, we get frustrated. The judiciary also has to do something. What is the court waiting for in some of these electoral offences?. “If people are jailed for electoral offences, I am sure by 2023, everybody will be careful; but because there is no punishment, people just feel they can do anything”.
The Senate had on July 15, 2021, passed a Bill seeking to establish Electoral Offences Commission. The passage of the Bill was sequel to the presentation and consideration of the report of the Senate’s Committee on INEC. Presenting the report, Committee Chairman, Kabiru Gaya (APC, Kano South), said the Bill became imperative in view of INEC’s inability to prosecute electoral offenders in accordance with the provisions of Section 149 and 150(2) of the Electoral Act (as Amended).
“By the foregoing statistics, it is unrealistic to expect INEC to conduct free, fair and credible election and simultaneously prosecute offences arising from the same elections. “Indeed, INEC had at several occasions admitted that it lacks the wherewithal to cleanse the system. Its failure to prosecute even one percent of 870,000 and over 900,000 alleged electoral offences in 2011 and 2015 general elections respectively is an affirmation of the necessity for a paradigm shift on how we deal with electoral offences”, Gaya said.
Some of the recommendations of the committee are; “Five years imprisonment or a fine of at least N10 million naira or both, for any officer or executives of any association or political party that engages in electoral fraud that contravenes the provisions of clauses 221, 225(1) (2)(3) and (4) and 227 of the 1999 Constitution as amended.
“Twenty years imprisonment for any person involved in ballot box snatching, supplying voter’s card to persons without due authority, unauthorised printing of voters’ register, illegal printing of ballot paper or electoral document, and importation of any device or mechanism by which ballot paper or results of elections may be extracted, affected or manipulated, and voting at an election when he is not entitled to vote.
“Ten years imprisonment for any person who sells a voter’s card, or in possession of any voter’s card bearing the name of another person, or prepares and prints a document or paper purporting to be a register of voters or a voter’s card.
“A term of at least 10 years upon conviction for any election official who willfully prevents any person from voting at the polling station, willfully rejects or refuses to count any ballot paper validly cast, willfully counts any ballot paper not validly cast, gives false evidence or withholds evidence, and announces or declares a false result at an election.
“At least, 15 years imprisonment for any judicial officer or officer of a court or tribunal who corruptly perverts electoral justice, during or after an election. “At least, 15 years jail term or N30 million fine for any security personnel or election official engaged by the Independent National Electoral Commission or State Electoral Commission who attempts to influence the outcome of an election”.
In the same vein, the Electoral Offences Commission Bill had equally on June 30, 2022, passed through second reading at the House of Representatives. The Bill which was merged with four others was sponsored by the Chairman, House Committee on Electoral Matters, Aishatu Duku.
If signed into law by President Muhammadu Buhari, the Bill will empower the Commission to investigate electoral offences, prosecute electoral offenders and maintain records of all persons investigated and prosecuted.
The Electoral Reform Committee headed by a former Chief Justice of Nigeria, Mohammed Uwais, had in 2007 recommended the establishment of a special prosecution body to be known as the Electoral Offences Commission.
In the meantime, INEC’s failure to prosecute electoral offenders is now a subject of litigation at a Federal High Court in Abuja. In the suit, a rights orga nization, the Socio-Economic Rights and Accountability Project (SERAP), is seeking “an order of mandamus to direct and compel INEC to seek and obtain detailed information about reports of vote-buying by the three leading political parties in the 2022 Ekiti State governorship election”.
The organization is also seeking an order of mandamus to direct and compel INEC to promptly and effectively prosecute those arrested, and to bring anyone who sponsored aided and abetted them to justice.
In the suit marked FHC/ABJ/ CS/1189/2022, SERAP argued that vote buying is entirely an act of election malpractice connected with vested interest since an election can be said to be free and fair when it is devoid of vote buying. It added that wealthy candidates and their sponsors ought not to be allowed to profit from their crimes, saying arresting and prosecuting vote buyers will end widespread impunity for vote buying ahead of the February 2023 general election.
“Vote-buying encourages poor governance and weakens citizens’ capacity to hold their ‘elected officials’ accountable for their actions. Vote- buying undermines the ability of INEC to discharge its responsibilities under Section 153 of the 1999 Nigerian Constitution (as amended), paragraph 15(a) of the third schedule of the Constitution, and the Electoral Act 2022.
“Corruption of the ballot box intrudes on the freedom of Nigerian voters to make up their own minds. Vote-buying and other forms of electoral corruption, freeze out the less wealthy candidates and parties.
“When political candidates or their sponsors decide to buy the support of the people rather than contest fairly for their votes, there are possibilities that such candidates and sponsors will show a disregard for democratic rules and a disposition to adopt illegal means becomes inevitable.
“Ending impunity for vote-buying and electoral bribery would contribute to free and fair elections. A corruption-free electoral process is essential for building public confidence in the electoral process, and the credibility and legitimacy of the 2023 elections.
“One of the people’s most sacred rights is the right to vote. INEC has a constitutional and statutory responsibility to ensure the effective exercise of the right of all eligible voters to participate in their own government in free and fair elections.
“Preventing and combating vote-buying and electoral bribery would advance the people’s right to vote and to participate in their own government, as well as bolster the ability of INEC to effectively discharge its constitutional and statutory mandates “Many years of allegations of vote-buying and electoral bribery and entrenched impunity of perpetrators have undermined public confidence in the electoral process.
“Prosecuting allegations of vote-buying and electoral bribery would be entirely consistent with the Nigerian Constitution, the Electoral Act, and the country’s international human rights anti-corruption obligations. “Agents of the three dominant political parties in the state, namely; All Progressives Congress (APC), Peoples Democratic Party (PDP) and Social Democratic Party (SDP), were reportedly involved in buying votes across the state, and voters offered as high as N10,000 in exchange for their votes.
“The Nigerian Constitution provides in Section 14(1)(c) that the participation by the people in their government shall be ensured in accordance with the provisions of this Constitution. “Section 145(2) of the Electoral Act provides that, ‘a prosecution under this Act shall be undertaken by legal officers of the Commission or any legal practitioner appointed by it”, SERAP further argued.
The neccesity or otherwise of the creation of Electoral Offences Commission has elicited mixed reactions from some senior lawyers. The lawyers while baring their minds on the issue at the weekend could not speak with one voice on the propriety of INEC’s push for the establishment of the Commission to address the issue of investigation and prosecution of electoral offenders.
Throwing his weight behind the creation of Electoral Offences Commission, a Senior Advocate of Nigeria (SAN), Prof. Adekunle Adedeji, opined that there can be no limit to the kind of institution that can be set up to fight electoral offences. Adedeji said: “No matter how you look at it, these electoral offences are specialized offences and there is no limit to the kind of institutions that can be set up to fight them.
“There is nothing in the system at the moment suggesting that the other investigative and prosecutorial agencies in the country are effectively looking at the plethora of electoral offences”. He however noted that the electoral offences commission does not have to be a big agency like the Economic and Financial Crimes Commission (EFCC).
“When you talk of electoral crimes, we are talking hi-tech; meaning you have to rely on digital forensics because a lot of forgery and impersonation happens and we have introduced a lot of digital processes into our elections. “We are not talking about foot soldiers stamping around the country, but very focused forensic analysts and investigators and if they fail, the head of the agency takes the axe and we try a new one,” he added.
Another silk, Mr. Seyi Sowemimo, was also of the views that creation of Electoral Offences Commission will aid speedy trial of offenders. He however insisted that there is no reason why the regular courts cannot deal with issues that border on electoral offences in Nigeria. “It is being argued that there is normally delay in the regular courts and therefore, there is the need to have a specialised court.
What should be done is to tackle the delay generally in the judicial system in Nigeria, just as having a specialised court has its advantage. The advantage would be to focus on cases that touch on specific issues which are electoral matters. Setting up specialised courts simply because it is appreciated that the normal courts have problems should not be encouraged”, Sowemimo said.
Mr. Babajide Koku (SAN) also disclosed that only specialized court can handle electoral offences matter. Koku, expressed sadness over the delay in the dispensation of justice in the regular courts. “But the unfortunate thing you find out in Nigeria is that the big people who manipulate elections will never be charged.
Those that would be charged are the small boys sharing small monies that would be prosecuted”, Koku noted. A former Vice-President of the Nigerian Bar Association (NBA), Mr. Monday Ubani, also threw his weight behind INEC’s call for the creation of Electoral Offences Commission.
He opined that INEC has the responsibility of ensuring that elections in Nigeria are properly held and that where there are anomalies, those responsible should be dealt with in accordance with the law.
A rights activist, Mr. Imran Ganiyu, said the Bill which is being sponsored at the National Assembly with the captioned ‘A Bill for an Act to Establish National Electoral Offences Commission and the Electoral Offences Tribunal to Provide for the Legal Framework for Investigation and Prosecution of Electoral Offences for the general Improvement of the Electoral Process in Nigeria; and for Related Matters’, actually made a provision for the establishment of Special Electoral Offences Commission/Tribunal.
This, according to him, is in line with the recommendation of the then Electoral Reform Commission which was headed by the former Justice of the Supreme Court, Justice Muhammed Uwais (Rtd). He said: “I completely agree with the provision as it will hasten the prosecution of electoral offenders
Our court is completely saturated with cases and adding the burden of prosecuting electoral offenders to the already saturated system would certainly slow down the course of justice and justice delay is always justice denied. “But once electoral offenders are promptly prosecuted and punished if found guilty, it will serve as a deterrent to others.
In fact, some of the convicts might be in prison serving their jail terms while another election is being conducted. It will certainly be a reference point and a signal to would-be electoral offenders in subsequent elections. “In 2011, alone, almost 870, 000 electoral offenders were apprehended across the country.
Sadly, out of the number only 200, which represents 0.02 per cent were successfully prosecuted. “Again, the creation of such a Commission would completely take the burden of investigation and prosecution of electoral offences from INEC, thereby enabling INEC to concentrate on its core responsibility.”
In her submissions, Director of the Electoral Hub, Princess Hamman- Obels, noted that the creation of the Electoral Offences Commission will no doubt enhance speedy trial of electoral offenders. She said: “INEC has enormous responsibilities which has hindered it in making significant efforts in prosecuting electoral offenders. A major challenge is the lack of resources, both required human capacity and finance, to effectively prosecute electoral offences. This is compounded because INEC lacks investigative powers and has to rely on a third party, the police, to investigate offences.
“It is further worsened by peculiar features of Nigeria, where electoral politics is a zero-sum game and a do or die affair. There is also abuse of state resources, the practice of godfatherism within many political parties, and high level of electoral impunity. “Electoral fraud and malpractices are rooted in the zero-sum and do or die politics of Nigerian politicians and political parties. Politicians commit electoral offences recklessly and with impunity because they believe and know they can do these without repercussions”.
On his part, Mr. Timileyin Ojo, said the creation of Electoral Offences Commission will serve as a mechanism for electoral accountability and prevention of offences. Ojo said: “Any aspect of life where there is specialization is always better than any general aspects. Creating an Electoral Offences Commission will go a long way in enhancing speedy trial of electoral offenders.
“It will not only enhance speedy trial, it will equally make the trial effective and not shallow. This is because, it will enhance an indepth investigation of any alleged crime by the Commission.
“I believe the Commission will not only be to prosecute, it will also have the powers to investigate. Before now, the post-election Tribunal always rely on evidence brought by parties, which are limited because of time and financial constraints. But when a body is saddled with the responsibility, the investigation will be detailed”. However, expressing a contrary view, Dr. Basil Ignatius, submitted that the country does not need a separate Commission to handle electoral offences.
Ignatius said: “There have been improvements in the Nigerian Electoral framework, especially with the introduction of the new Electoral Act of 2022, which has introduced some positive changes despite some challenges.
“So for me, enforcing and enhancing the existing laws by election tribunals and the regular court will achieve desired results instead of creating a separate body or commission”. Ignatius was echoed by the Publicity Secretary-elect of the NBA, Habeeb Akorede, who said the creation of Electoral Offences Commission is unnecessary. “We might however empanel another ad-hoc Tribunal to deal specifically with electoral offences at the end of every elections in the way and manner we have the election petition tribunal.
“The powers of the Tribunals to try electoral offences should be divested as the tribunals are often burdened with the strict time-lines of election petitions”, Akorede said. A constitutional lawyer, Professor Auwalu Yadudu, also expressed reservations on the effectiveness of establishing the Commission.
He said:“It is one court too many. If we mean business, there are sufficient extant legal provisions in our statute books to effectively deal with electoral offences.
“The problem is failure or neglect to diligently apprehend violators and their sponsors and deal with them. I have my serious reservations if another court structure will make much, if any, difference”.