Can the Election Tribunals Clean up INEC’s Mess?

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By Ifeanyi Afuba

In the euphoria of a successful presidential election with arguably the least controversy since independence, some have hastened to declare the 2015 elections free and fair and commended the INEC under Professor Attahiru Jega for a job well done. The temptation to generalize with the presidential poll is understandable but equally untenable. There are observable divergences in the outcome of the presidential election and the other polls.
The logical conclusion of the 2015 presidential election is more a function of the APC’s capacity to overcome the threat to subvert the process than of INEC’s ability to preserve the integrity of the system. President Goodluck Jonathan’s PDP was in government but hardly in power at the time of the said election. The power of incumbency which the PDP in the typical fashion of most ruling parties in Africa had exploited to win every general election since 1999 could not be leveraged because the ruling apparatchik was steeped in a crisis of instability.
For significant sections of Nigeria’s voting population, Jonathan’s ‘less than average performance’ was not the underlying issue though it was convenient and diplomatic to present it as such. Late President Umaru Yar’adua’s predecessor, Olusegun Obasanjo was a phenomenal failure as President; that did not stop him from securing a second term in office. The decisive factor in Jonathan’s re – election bid was whether it was the turn of the north or the south to rule. Jonathan’s performance in the six years of his presidency was a consideration for only an insignificant percentage of Nigerians. The voting pattern in the March 2015 presidential poll in which the north voted overwhelmingly for retired General Muhammadu Buhari and the South [minus the south west for obvious reasons] voted overwhelmingly for Jonathan substantiates our position that the contest was about which region ought to produce the President. Those who would rather wish away the relevance of ethnic politics in Nigerian elections should tell us had Jonathan been a northerner, [and incumbent President], who between him and Buhari would have won in the north. It would be inconceivable to suggest that among the south – east and south – south voters, there were not significant sections disappointed by Jonathan’s modest achievements but who nevertheless voted for him. Even in the advanced Western democracies, there are found categories of the electorate whose minds are firmed up well before the polls about the candidates regardless of their performance in office, in campaigns and debates.
The ‘unfairness’ of Jonathan’s presidency against the backdrop of what was perceived as the north’s rotational slot had long become a movement which merely reached its climax with the 2015 presidential election. This crusade created a crisis of confidence for the regime which in turn led to the weakening of some state institutions. Appointments into key national offices such as the service chiefs and CBN governorship by the President were politicized and given all manner of interpretations. When the military command took adequate measures to contain Boko Haram’s terrorism, the regime was accused of genocide and if it softened the counter insurgency operation, it was blackmailed as doing nothing or not doing enough. Bauchi State presidential election result in which Jonathan polled 86, 085 votes to Buhari’s whooping 932, 598 votes illustrates the stigma that afflicted Jonathan’s candidature in the north. This was a Bauchi State that had Isa Yuguda a PDP Governor; the national chairman of the PDP, Adamu Muazu hailed from the state; ditto for the very powerful Minister of the Federal Capital Territory, Senator Bala Mohammed. The fact of either their inability or unwillingness to come to the rescue of their party’s candidate speaks volume about the dissonance in the party largely brought upon by the regime’s power crisis.
It was this state of regime instability against the background of north – southwest mobilization to acquire the presidency which foreclosed manipulation of the presidential election result rather than any demonstration of competence and impartiality by the INEC. Although President Goodluck Jonathan at a thanksgiving service at Abuja on Sunday, May 10, 2015, indicated that he overruled some of his ministers in conceding victory to Buhari, there is serious doubt the regime had the capacity to influence the process and thereafter contain the attendant consequences. We saw on television the half – hearted attempt by one of the President’s associates to derail the announcement of results peter out at the first line of resistance. A legal challenge of what was generally regarded as a credible poll would have been an uphill task.
The situation was however markedly different with the national assembly elections held on the same day and with the governorship and state assembly polls of April 11, 2015. The PDP did not consider the other parties which contested these elections of any consequence in the power game. Except for APGA which had managed to maintain its hold on Anambra, these parties were belittled as controlling no states, with marginal or no presence outside their leaders’ areas of origin and were not identified with popular cause capable of drawing fanatical following. On the calculation that the fate of these parties could not trigger mass unrest, they were destined to become spectators in the electoral contest. APGA was a prime target in this assault on parties regarded as irritants to PDP’s hegemony.
Unlike the presidential poll, there is a groundswell of protests on the conduct of the rest of the 2015 elections. In Anambra State, the outcome of the national assembly election were criticized as flawed by poll monitors and the state’s political elite. Vanguard [Thursday, April 9, 2015] quoted parts of the report by Coalition of INEC Accredited Observers in a story titled ‘Election observers allege discrepancies in Anambra polls.’ The report was emphatic in its conclusion: ‘Due to the observed irregularities and malpractices culminating in the mutilation of recorded result and outright falsification of figures thereby awarding fictitious ballots to the wrong person, we call for immediate review of the declared results and subsequent declaration of the authentic winners.’
Even more telling is the outright challenge of the results by many of the candidates who contested the elections. The statistics from the election petition tribunals are revealing and instructive on the credibility of some of the poll results. Here is a random sample of the number of election petitions pending at the tribunals as reported by newspapers. Cross River State 26; Edo State 10; Imo State 37; Sokoto State 5. Abia State Tribunal has recorded 30 petitions; Anambra 34; Delta 40; Bayelsa State 16 and Ekiti State 6. Others are Ebonyi State 13; Taraba State 22; Oyo State 36. The list also includes Zamfara State with 4 cases and Cross River State which has 26 petitions. When it is remembered that electoral cases is one of the costliest form of litigation, then it is easier appreciated that it takes a gravely aggrieved candidate to go to the tribunal.
The challenge however is that moral truth may not necessarily translate to legal truth. Over the years, the nature of the legal framework for adjudication of election disputes has been technical – oriented. This error of viewing election petition from the prism of legality rather than democratic franchise is partly responsible for the low success recorded by petitioners at the tribunals, the other being the vexed issue of corruption. In line with the political and civic nature of election petitions, it would be helpful to return to the practice witnessed during the Babangida and Abacha regimes whereby lay persons served alongside lawyers/judges in the trial panel.
Flawed elections have their roots largely in the role of compromised electoral officials. This ugly phenomenon looks set to continue until the emergence of an autonomous electoral body truly independent of the ruling party’s control. It is to be recalled that in the aftermath of the 2007 general polls, then INEC chair Professor Maurice Iwu had riposted that the environment for free and fair election did not exist in the country.
While there has been slow progress in the upturning of rigged elections by the tribunals in recent years, the election courts will do well to heed the re – stated Supreme Court directive for focus on substantial justice instead of technicalities. This position is echoed by Itse Sagay, professor of constitutional law. For Sagay, the omnibus doctrine of proof beyond reasonable doubt should not be the criterion of successful election petition. The exercise is to ‘disregard the invalid votes, count the valid votes and declare the true winner.’
There can be no gauging the trauma visited on candidates and the electorate by those who insist on vetoing the people’s verdict at the polls. As Nobel laureate Wole Soyinka once said, ‘there is no political offence graver than organizing, condoning, participating in, or benefitting from the thievery of a people’s political will.’

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