FELIX NWANERI writes on the burden of prosecution of electoral offenders, on the Independent National Electoral Commission (INEC), which has rekindled calls for the establishment of an Electoral Offences Commission
Nigeria has a chequered history of electoral violence and other related offences. However, from electoral violence t o ballot snatching and stuffing, the drift at the moment is vote-buying, which involves inducement of voters with cash by agents of political parties and their respective candidates in return for votes.
No doubt, money had always played a major role in Nigeria’s elections, it is however becoming clear that it is now the major determinant of electoral contests given the outcome of the recent elections, and the major culprits are the leading political parties. Agents of the parties openly induced voters with money ranging from N5,000 to N10,000 per vote.
This, no doubt, contradicts the provisions of the Electoral Act, which spelt out in clear terms, what constitutes electoral offences as well as empowers the Independent National Electoral Commission to undertake the prosecution of offenders. Part V111 of the Act lists various types of electoral offences and prescribes punishment for them.
Section 23, for instance, prohibits the buying or selling of voter cards; such offences attract a fine not exceeding N500,000 or imprisonment not exceeding two years or both on conviction.
Under section 81, a political party or association, which contravenes the provisions of section 227 of the constitution (prohibiting retention, organisation, training or equipping quasi-military organizations) commits an offence and is liable, on conviction, to a fine of N500,000 and N700,000 for any subsequent offence; and N50,000 for every day that the offence continues.
The act also provides that any person, who aids and abets a political party to contravene Section 227 commits an offence and is liable, on conviction, to a fine of N500,000 or imprisonment for a term of three years or both. Section 91 of the act criminalizes contravention of limitation on election expenses.
Under section 91(12), any accountant, who falsifies or conspires or aids a candidate to forge or falsify a document relating to his expenditure in an election or receipt or donation for the election or in any way, aids and abets the breach of the provisions of section 91 commits an offence and on conviction is liable to 10 years imprisonment.
Section 122 prohibits impersonation and voting when not qualified, and its contravention attracts a maximum fine of N500,000 or 12 months imprisonment or both, while under section 129(4) anybody, who snatches or destroys any election material shall be liable on conviction, to 24 months imprisonment.
Section 130 frowns at undue influence of voters and electoral officials; its contravention attracts a maximum fine of N100, 000, 12 months imprisonment or both, while threats, under section 131 attract a maximum fine of N1 million or three years imprisonment. Section 150 empowers INEC to undertake the prosecution of election offenders.
Section 150 is complemented by sections 174 and 211 of the Constitution, which empowers the Attorney-General of the Federation and states’ Attorneys-General to institute and undertake criminal proceedings against any person with respect to federal laws and state laws respectively.
SERAP calls out
INEC Despite these provisions of the Electoral Act, the belief is that INEC has not done enough in bringing electoral offenders to book.
However. some political stakeholders are of the view that the only acceptable excuse on the part of the commission in this regard is lack of capacity given the responsibilities INEC is saddled with.
This perhaps informed the recent spat ben INEC and Socio-economic Rights and Accountability Project (SERAP) over the group’s claim that the commission’s chairman, Prof. Mahmood Yakubu, flouted a court order regarding the prosecution of electoral offenders.
SERAP had filed a contempt lawsuit against the electoral commission and Prof. Yakubu “for failing to investigate allegations of electoral offences committed during the 2023 general election, identify suspected perpetrators and their sponsors, and ensure their effective prosecution.”
Justice Obiora Atuegwu Egwuatu of the Federal High Court, Abuja, had on July 18, ordered INEC to pursue cases of bribery against state governors and their deputies, and other electoral offences committed during the 2023 elections.
He also ordered the electoral umpire to seek the appointment of independent counsel to investigate allegations of electoral offences including bribery, vote-buying, conspiracy, and undue influence against state governors and their deputies during the elections.
The judgement read in part: “The substance of SERAP’s grouse is the violence associated with elections in Nigeria which tends to prevent citizens from exercising their franchise during elections, thus preventing credible election and in the long run credible leaders.
Prosecution of electoral offence is very slow for the simple reason that electoral offences are not time-bound, unlike preelection and post-election cases
“There is no gainsaying the fact that electoral violence and the associated crimes committed during elections in Nigeria is a great bane to the development of this country both democratically and economically.
“Being citizens of this great country, SERAP and its members have the legal interest whose enjoyment or enforcement directly or substantially depends on the performance of public duty by INEC.
In requesting the performance of the public duty imposed on the electoral body, SERAP has demonstrated a great zeal of patriotism.
“There is no doubt that the Electoral Act 2022 created some electoral offences. Sections 123, 124, 125, 126 127, 128 and 129 are some of the provisions of the Electoral Act that created some specific electoral offences.
Trial of offences created by the Electoral Act is done in a Magistrate Court or a High Court of a state in which the offence is committed, or the Federal Capital Territory, Abuja.
“By section 145(2) of the same Act, prosecution for the offences shall be undertaken by legal officers of INEC or any legal practitioner appointed by INEC. Clearly therefore, the law imposes on INEC the performance of a public duty.” While SERAP claims that INEC and its chairman are yet to act on the judgement, the court, in a notice of consequences of disobedience to its order, warned Prof, Yakubu that he would be guilty of contempt of court and liable to be committed to prison if he fails to obey the judgement orders.
The notice, addressed to the INEC chairman, read in part: Take notice that unless you obey the orders contained in the judgement of July 18, 2024 made by Justice Egwuatu of the Federal High Court, Abuja in Suit Number: FHC/ABJ/ CS/583/2023, a copy of which is hereto attached, you will be guilty of contempt of court and will be liable to be committed to prison.” SERAP, on its part, described INEC’s inability to obey the orders of the court as unacceptable.
In a statement dated October 27 and signed by its Deputy Director, Kolawole Oluwadare, SERAP maintained that a democratic state based on the rule of law cannot exist if INEC and its chairman routinely ignore and or fail to abide by court orders.
The statement read in part: “The recurring cases of electoral bribery and violence make a mockery of Nigeria’s electoral process and participatory democracy.
The latest allegations of electoral offences in Edo State show that INEC has learnt little or nothing from the well-documented problems during the 2023 general elections.
“Ahead of the forthcoming governorship election in Ondo, INEC must turn the page on persistent electoral offences, end the impunity of perpetrators, and ensure citizens’ right to vote and political participation.”
INEC faults SERAP
The electoral commission, in its response to SERAP’s claims, explained that besides the fact that governors and deputy governors have constitutional immunity from prosecution, the electoral umpire has no record that anyone of a prima facie case established to initiate their prosecution.
The commission’s National Commissioner and Chairman, Information and Voter Education Committee, Sam Olumekun, who stated this in a statement, said if SERAP had done basic fact check, it would have known that at the end of the 2023 general election, the commission announced that it received 215 case files from the Nigeria Police, following the arrest and investigation of alleged violators of the electoral laws across the country.
Olumekun said these included 52 files involving 238 alleged offenders during the presidential and National Assembly elections and 163 files in respect of 536 suspects for the governorship and state Assembly elections.
He added that it was important to also inform the public that the commission’s commitment to prosecution of electoral offenders is not limited to persons who are outside the commission.
He pointed out that officials of the commission, some of them highly placed, have been affected, including a Resident Electoral Commissioner (REC) currently being prosecuted in a High Court in Yola, Yobe State.
He further explained that recognising the need for their speedy prosecution and bearing in mind that the commission does not have enough in-house lawyers, informed why INEC engaged the Nigerian Bar Association (NBA) under the leadership of the immediate past President, Yakubu Maikyau for assistance, adding that the chairman of the commission and other officials have also been providing updates to the public on the matter.
His words: “For the first time in the history of elections in Nigeria, concrete steps were taken between the NBA and INEC to prosecute electoral offences.
The NBA, working with a prominent and senior human rights lawyer, provided the commission with a list of counsels nationwide, including Senior Advocates of Nigeria (SANs), who volunteered to render pro-bono services.
“Letters of instruction were given to them through the NBA and work commenced in earnest. As private lawyers, this satisfies the provision of section145 (2) of the Electoral Act 2022, which empowers the commission to engage external solicitors to assist it in the prosecution of electoral offences. So far, convictions/successful prosecutions have been recorded in Kebbi and Kogi states.”
Olumekun stressed that it is wellknown that INEC has been working with the Economic and Financial Crimes Commission (EFCC) and Independent Corrupt Practices Commission (ICPC) to discourage vote buying and prosecute vote buyers.
He said a special joint prosecution team of 18 lawyers drawn from the EFCC and INEC was set up to prosecute suspects, adding that through this joint effort, successful prosecutions have so far been recorded in Lagos, Gombe and Kwara states.
His words: “The prosecution of electoral offence is very slow for the simple reason that electoral offences are not time-bound, unlike pre-election and post-election cases, which must be determined within 180 days at the trial court/tribunal and a maximum of 60 days at each layer of appeal.
“Furthermore, under section 145 (1) of the Electoral Act 2022, electoral offences are prosecuted in the jurisdiction where the alleged offence is committed and by the state judiciary. Some cases can go on for several years.
That is why the commission has been in the forefront of the advocacy for electoral reform to make electoral offences time-bound for speedy prosecution of electoral offenders, including the establishment of an Electoral Offences Tribunal.
“We wish to assure Nigerians that the commission will continue to discharge its responsibilities at all times. The commission is not in contempt of court as alleged. As an organisation that portrays itself as a leader in advocating for justice, SERAP ought to have availed itself of basic facts that are already in the public domain.”
A chequered history
Violence and manipulations have always been major threats to Nigeria’s electoral process. Out of the 10 general elections the country has conducted since independence – 1964/1965, 1979, 1983, 1999, 2003, 2007, 2011, 2015, 2019 and 2023 – perhaps, only that of 2015 could be said to be violence-free.
While the 2007 elections was described by both local and foreign observers as one that cast a harsh light on patterns of violence, corruption and outright criminality that have characterised Nigeria’s political system, the post-election violence, which trailed that of 2011 polls nearly drove Nigeria to the brink.
By the time the dust settled, several lives were lost and property worth billions of naira destroyed in the northern part of the country. Among those caught in the crossfire were members of the National Youth Service Corps (NYSC), employed by INEC as ad hoc staff. Kaduna State and Kano states, which were the worst hit by the crisis, had thousands of persons displaced.
The 2019 general election was also characterised by violence in flashpoint states like Rivers, Kano and Lagos.It was the same story during the 2023 elections as voter intimidation was the order of the day most states of the federation, while vote buying assumed a worrisome dimension.
Burden of prosecution
Most stakeholders have over the years insisted that prosecution of election offenders should not be left in the hands of INEC as the commission is saddled with a major mandate of conduction elections., which is herculean.
To this end, the call has always been for the government to work on the report of the Justice Uwais Electoral Reform Panel, which recommended that a separate body be set up to handle electoral offences.
The electoral umpire had in the past tried to prosecute election offenders, but it was overwhelmed given the number of individuals involved. For instance, out of the 869,800 persons involved in the manipulation of the voters’ registration process ahead of the 2015 general election, the electoral body was only able to prosecute 200, which represents less than one per cent of the total figure.
There should be a commission to take care of electoral offences as well as take away the burden of prosecution of offenders from INEC, but electronic voting, would have been a better idea
Then INEC chairman, Prof. Attahiru Jega, who admitted that the commission lacked the capability to prosecute electoral offenders, noted that the way out is to adopt the recommendations of Uwais panel.
Immediate past President Muhammadu Buhari, who acknowledged the need to prosecute electoral offender, when he swore-in the present chairman of INEC, Prof. Yakubu, in October 2015, said it was not enough for election tribunals to just cancel or order fresh elections over perceived subversion of the peoples wish.
His words then: “It is not just enough for an election to be cancelled and a new one ordered. It would be much better if all those whose actions or inactions led to the cancellation of such election to be investigated and if culpable, prosecuted whether they are individuals as candidates or party agents, Institutions such as political parties, electoral body, or public officers as electoral staff or security agents.
“Similarly, perpetrators of electoral violence and thuggery should not be spared. Unless our system stops covering up all forms of electoral malpractices, we can hardly get it right. No system endures with impunity.”
Recommendations of Uwais panel
Among the recommendations of the Uwais-led Electoral Reform Committee constituted by late President Umaru Yar’Adua in 2007, was the setting up of an Electoral Offences Commission to ensure prosecution of offenders even after the winner will have finally emerged.
Justice Uwais had then said that acceptance and implementation of the recommendations “will significantly restore credibility to the Nigerian electoral process and usher in an era of free, fair and credible elections that will conform to international best practices.” Unfortunately, the recommendation didn’t find favour with the Yar’Adua government.
While most Nigerians have continued to call for implementation of the Uwais panel recommendation, the chairman of INEC, Yakubu, has repeatedly maintained decisive action must be taken to break the cycle of impunity through the promulgation of an Electoral Offences Commission/ Tribunal to handle matters relating to electoral offences.
According to him, “INEC has continually made it clear that it lacks the capacity and wherewithal to continue the prosecution of electoral offenders and it is for this reason that the commission supports and will continue to support the creation of an Electoral Offences Commission/ Tribunal to process, arrest, investigate and prosecute electoral offenders.”
Yakubu also believes that “Nigeria can no longer afford to foot drag on the important legislation that will provide the framework to deal with impunity and brigandage in elections, which are becoming more brazen essentially because violators of electoral laws are not effectively prosecuted.”
Stakeholders drum support
Some analysts, who backed INEC on the establishment of a separate agency for electoral offences, said it will not only curb elections violence, but fast track the prosecution of electoral offenders to serve as deterrent to those who subvert the electoral process.
They pointed out that the prosecution of electoral offenders and others who commit crimes related to elections has been a sore point in the electoral process and its direct consequence is that the ordinary people disengage from the electoral process.
Chief Chekwas Okorie, who represented the All Progressives Grand Alliance (APGA) in the Presidential Committee on Electoral Reforms setup by President Umaru Yar’Adua in 2007, who spoke on the issue, told New Telegraph that though establishment of a commission to take care of electoral offences will take away the burden of prosecution of offenders from INEC, adoption of electronic voting is the way to go if violent acts and manipulations associated with elections in Nigeria are to be curbed.
His words: “Four political parties constituted the 2017 Presidential Committee on Electoral Reforms and it was headed by Vice President Goodluck Jonathan as he was then.
Part of the recommendations of that committee was the establishment of an Electoral Offences Commission, which was in turn handed over to the Justice Uwais committee and was eventually incorporated in the panel’s report.
“So, we have always believed that there should be a commission to take care of electoral offences as well as take away the burden of prosecution of offenders from INEC, but I believe that prevention is better than cure.
While the commission is expected to come in and cure electoral offences, to prevent such offences in the first place through electronic voting, would have been a better idea.
“There must be full electronic voting system in a manner that ballot box would be eliminated in order to take care of thuggery and results transmitted electronically from the polling booths. With the system in place, there will be nothing for the electoral offences commission and election petition tribunals to do.”
