By Sunday Ani
Public affairs analyst and legal practitioner, Mr. Ikechukwu Onodi, has described as travesty of justice, the current practice in Nigeria where people are sworn into office after election while their electoral victories are still being challenged in the elections petition tribunals or court of law.
He argued that the proper thing would have been to trash out the matter and the validly elected declared by such tribunals or law courts before the swearing-in can take place.
In this interview, he speaks extensively on what he also described as legislative absurdity, why the practice has persisted and would continue to persist, the constitution of the electoral body and the fuel subsidy removal among other issues of national interest.
The last general elections in Nigeria were believed by many to have fallen short of free, fair and credible contests. What is your overall assessment of the process?
The gains recorded and the achievements of the 2015 general elections have been eroded and lost in the 2023 elections. The elections of 2023 can safely be said to be the worst ever conducted in Nigeria since the colonial days. Starting from the impunity of certain candidates, who shunned the media chats and debates because they had concluded rigging plans, which, of course, eventually became manifest; to intimidation, suppression and harassment of opponents by those in power, the handwriting was very clear on the wall. The last straw that broke the camel’s back was the flagrant violation of the Electoral Act and guidelines by the electoral umpire, the Independent National Electoral Commission (INEC). The assurances by the INEC that results from polling units would be scanned from the Form EC8A and posted with the aid of the Bimodal Voter Accreditation System (BVAS) to the INEC result viewing (IRev) portal, where the public could view the results in real time, was not adhered to. There was clear evidence of INEC’s compromise during the elections. The Vice Chancellor of the Federal University of Technology, Owerri (FUTO), and Returning Officer of the Abia State Governorship election, Professor Nnenna Nnannaya Oti, revealed how the powers that be tried to intimidate, harass and bribe her to compromise the results of the election, but she stood her ground.
There was a significant improvement in general elections in 2015 by former President Jonathan, who made and pursued his declared determination to give the country free, fair and credible elections. Even though he was a candidate in the elections, he also declared and lived up to the mantra that his ambition was not worth a jut of the blood of any Nigerian. The INEC under Prof. Attahiru Jega also played a major role in seeing to the success of that election.
Some people have argued that the idea of swearing in candidates whose electoral victories are still being challenged in the court is wrong; do you share that view and how long do you think such cases should last in courts?
Yes, absolutely. It negates all known principles of fairness for a person whose election is being challenged in the tribunal or law court to be sworn into office. It is a dirty slap on the individual faces of the people who have decided with their ballot power to elect one of their own only for another person, for whatever reason, to be sworn into the same office. It is a travesty of justice, and it thwarts the whole essence of elections.
This was not the intention at the birth of the current Fourth Republic. I recall listening to General Abdulsalam Abubakar during a media chat before the outset of the Republic. He was asked the reason behind the choice of May 29, 1999, for handover of power to the civilian administrators, as there was nothing to suggest that May 29 was significant in any way in the country’s political cum democratic journey. But, his response was that he got the advice from the then Chief Justice of Nigeria (CJN), Mohammed Lawal Uwais. He said the former CJN told him that three months were the periods needed to determine the electoral petitions after the elections in February. That was what informed the choice of May 29 for handover. Thus, all electoral petitions and subsequent appeals were meant to be finally determined before the successful candidates were to be sworn into offices.
There is no doubt that the Electoral Act of 2022 is a major improvement in our electoral journey as a state, especially since the fourth Republic. However, the aspect of speedy resolution of disputes arising from elections is a snag in that piece of legislation.
By Section 132 subsection 8 of the Electoral Act, 2022, the Tribunal shall deliver a judgment in writing within 180 days from the date of the filing of the petition. Subsection 9 gives the appellate courts 60 days to hear and dispose of appeals from the tribunals. So, for a dispute that will commence at the tribunals and terminate at the Supreme Court, as in the case of gubernatorial elections, a period of 300 days, equivalent to 10 months are needed to dispose of such disputes. This accounts for the impunity by the electoral officers as we have witnessed in recent time, especially during the just concluded 2023 general elections. It is further compounded by the provision that even when the election is nullified by the tribunal, the person who had been declared elected by the INEC will remain in office till the final decision on the matter provided he has filed an appeal within the stipulated period. Section 138 of the Electoral Act, 2022 accounts for the impunity presently seen among the officers of the INEC in their handling of the elections in recent times. It provides that where the election is nullified by the Court and notice of appeal against the decision is given within the stipulated period for appeal, the elected candidate shall, notwithstanding the contrary decision of the Court, remain in office and enjoy all the benefits that accrue to the office pending the determination of the appeal and shall not be sanctioned for the benefits derived while in office. It went further to also state that if the election tribunal or the court, as the case maybe, determines that a candidate returned as elected was not validly elected, the candidate returned as elected shall, notwithstanding the contrary decision of the election tribunal or the court, remain in office pending the expiration of the period of 21 days within which an appeal may be brought.
It is these provisions that embolden electoral officers to truncate the will of the people to declare whomever they like as winners of the elections, not minding the choice of the electorate. They do this knowing that whoever they return as winner, will eventually be sworn in and will continue to enjoy the benefits of the offices they never earned. Politicians brag with the cliché, ‘go to court,’ knowing that while in court, which unfortunately will end up in the Supreme Court for all elections, the de facto INEC declared officer will remain in office. This is a grave injustice and theft of the peoples’ mandate. It amounts to legislative absurdity
In effect, the import of the provisions of Section 138 of the Electoral Act, 2022, is to breed rascality among politicians and lead to corruption of electoral officials. So, when you hear the cliché, “Go to Court”, sections 8 and 138 of the 2022 Electoral Act are responsible for it. What that cliché means is that even if you eventually win in court, we would have spent some months in power with our stolen mandate. Nothing can be more bizarre than that.
This absurdity leads to off-season elections, which takes a toll on the economy, security and social life of the people. It started with Mr. Peter Obi as governor of Anambra State. The INEC had with impunity declared Dr. Chris Ngige as governor – elect of Anambra State following the general election of April, 2003. Consequently, Dr. Ngige was sworn in as governor on May 29, 2003. He continued to hold sway as the de facto governor of Anambra State till March 2006 when the Supreme Court decided that he was not validly elected as governor and that it was Obi that ought to have been returned instead. Obi was eventually sworn in as governor of the state on March 17, 2006. That was after the usurpation by Ngige, aided by the INEC and the People’s Democratic Party (PDP) for nearly three years. It did not stop there. After barely a year in office, another general election was conducted by the INEC for the office of the governor of Anambra State and Dr. Andy Uba, who emerged as the winner of the election was subsequently sworn into office. But, Obi would not have it and he went back to the court for an interpretation of his tenure. He succeeded and that gave birth to off season elections, mainly of governors of some states in Nigeria. Currently, eight states in the country are experiencing off-season elections of their respective governors, and more are likely to join.
Many people have argued that the electoral umpire, INEC, is always complicit in electoral manipulations due to the recruitment process, which gives the sole power of appointing the INEC chairman to the president, although subject to the approval of the senate. Do you think the recruitment process is flawed and what do you think should be done to ensure that INEC is truly independent and not subjected to the whims and caprices of one man?
The electoral body should be run by men and women of high ethical standard and proven integrity as well as people who will be fair to all the contending parties and politicians of different ideological leanings without affection or ill will. They should be knowledgeable in the tenets of democracy, rule of law and detailed rules guiding elections. They should be above board and free from all likelihood of bias.
It is a trite principle of natural justice that a man cannot be a judge in his own cause. This is better captured in the Latin maxim – nemo judex in causa sua. The functions of the electoral body, which presently resides with the INEC as the body that supervises the elections of the principal officers in charge of two out of the three organs of government, namely, the legislature and the executive, is enormous. As such, members of the electoral body should be selected in such a way as to ensure their independence and impartiality.
A situation where the President of the Federal Republic of Nigeria appoints whoever he pleases as the chairman, federal commissioner or other principal officer of the INEC leaves much room for compromise, especially if the appointing President will later be a candidate for election to an office. It creates room for likelihood of all kinds of bias. This is so because as postulated by the principle of nemo judex in causa sua, the fact that the electoral umpire is in fact, unbiased, is not the point; the fact remains that every room of a likelihood of bias has to be removed.
The idea here is not to divest the President with the powers to appoint the chairman and federal commissioners and other principal officers of the INEC; that is not the point. The point being made is that the President should not just wake up and appoint any Tom, Dick or Harry as a principal officer of the INEC as currently obtains.
The INEC should be institutionalized and strengthened in such a manner that it should autochthonously throw up candidates for appointment into her principal offices, including the Office of the Chairman, Federal Commissioners, Resident Electoral Commissioners, and so on.
There should be an Electoral Institute that will groom career personnel and electoral officers for manning the various offices of the Commission. There should be a Federal Electoral Commission that will be responsible for recommending the most senior among the Federal Commissioners to the President for appointment as the Chairman of the INEC. The Federal Electoral Commission will also be responsible for recommending to the President for appointment, the Federal Commissioners and the Resident Electoral Commissioner of the INEC for the Federal Capital Territory (FCT). Members of the Federal Electoral Commission should be constituted from among the retired judges, retired senior civil and public servants and professors of law, political science and other relevant disciplines.
There should also be a State Electoral Commission for each of the states of the federation. Members, like those of the Federal Electoral Commission, should also be drawn from among the retired judges, retired senior civil and public servants and professors of law, political science and other relevant disciplines. It shall be the responsibility of the State Electoral Commission to advise and recommend to the Governor a candidate for appointment as the Resident Electoral Commissioner of the state concerned. The recommendation must be from among the career electoral officers in the respective state. In essence, something similar to what currently obtains in the judiciary is being recommended here.
The announcement of the removal of fuel subsidy by President Bola Ahmed Tinubu on his day of inauguration was seen as ill-timed by some people in certain quarters. What are your thoughts on the fuel subsidy removal?
Fuel subsidy as practised in Nigeria is a haven for official corruption. It ought to have gone since 2012 when former President Goodluck Jonathan wanted to remove it, but the policy was vehemently resisted by the then opposition parties and civil society organisations. The fact remains that it has to go; I don’t really care how that is done. There is, however, the fear that with the removal of subsidy on petroleum products, the proceeds would still be channeled to other avenues where they will be looted, instead of being utilized for the provision of infrastructure. It is only when the savings from the subsidy removal is deployed to the provision of the amenities that it can favour the ordinary peoples of Nigeria.