Mike Igini is a former Electoral Commissioner of the Independent National Electoral Commission (INEC). In this interview monitored on Arise Television, he speaks on the limitations in the 2026 Electoral Act and the role the judiciary will play in the 2027 general elections, among other issues, ANAYO EZUGWU reports
You have been very consistent since 2023 in talking about the role of the judiciary but it looks like the judiciary is even going to be more overwhelmed in this 2027 process. What will be your charge to the judiciary this time around since it looks like the courtroom is where the elections of 2027 are going to take place?
The difference between advanced democracy, a growing democracy, and a democracy in retrogression has to do with the rule of law. Alexis de Tocqueville, a French scholar, who spent a greater part of his life in the US, spoke and wrote a book titled Democracy in America, and he made the point, very eloquent, that the resident of the American democracy, that is its heritage, is based on the strength of the judiciary.
So, in all jurisdictions around the world, particularly in our country, the institution of representative democracy will have a hopeful future if it will be predicated on the role of the judiciary. Now, elections that ought to have been conducted, determined finally and conclusively at the level of polling unit, are now being determined by the courts, which of course, has led towards the retired Supreme Court Justice of England, described as the expanding empire of the courts.
The courts in Nigeria are now being asked to answer political questions rather than legal questions. And whenever courts of law are made to answer political questions instead of legal questions, who should be a candidate, who should be a secretary of a party, who should be a chairman, the tendency is that judiciary will be vulnerable. There will be efforts by politicians to capture the judicial system.
This was the fear of the English people, when in the 18th Century, they decided that given that politicians were buying votes, they were buying employers of labour, that the possibility that judges would be influenced in England, the court should not be involved in determining election matters. That was the history. It’s a sad reality. And so, the point is that whenever we have a judicial system that shows signs of weakness, collapse, or get itself bound to the suffocating influence of corrupt politicians, democracy will be in danger.
I said I have not been interested in so many things because I’m so disappointed, but I decided that I should go through the Electoral Act, and I found that whereas during the last intervention we had here, we’re discussing about section 60, subsection 3, where the National Assembly provided a proviso that will undermine the 2027 official elections, I have now found a more dangerous three provisions. And I put them out so that Nigerians can see it before any comment. First, let’s go to section 63. Now, section 63, which I just discovered, they have now reintroduced something very terrible.
INEC should quickly go back to the National Assembly to call for amendment or the repeal of section 63 of the Electoral Act as quickly as possible
You can see it there; that if ballot papers that would be used for the 2027 elections do not bear the official security seal of INEC, they should be accepted by presiding officers. That was contained in section 49 of the 2010 Act that took us 20 years until 2022 to repeal it because what is the condition to determine what satisfied a presiding officer.
The presiding officer has now been given the discretion to accept ballot paper, notwithstanding the absence of the official mark, and to cut that ballot paper. What that means is that before this election, politicians who now have access to the security features of INEC ballot, are going to produce their ballot papers. They are going to print their own ballot paper and they have to be accepted. That is dangerous.
Similarly, let’s go to section 138. Section 138 has been one of the rigging provisions that we have cried out to be removed. As a matter of fact, you remember that in 2019, in this current republic, under Muhammadu Buhari was the only time that there was no Electoral Act passed, because when we made that recommendation that this section should be removed, you remember that it was rejected.
And what that section says is that an act or omission which may be contrary to the instruction or directive of the commission, or of an officer appointed for the purpose of election, but which is not contrary to the provision of this act, shall not of itself be a ground for questioning the election.
May I make a few observations here? You see, when you want to deceive people, you put it in words. You see, what they basically said, is that they were just short of referring to INEC regulations and guidelines, because the instruction and directive of INEC are contained in INEC regulations and guidelines.
They are saying that a presiding officer, a collation officer, a returning officer, can abandon it. So, they provided immunity there. Let’s go to the last section. It will interest Nigerians to know that section 137 now says that all those categories of individuals, I think the other time I provided you what we call a pyramid.
What happens to these categories in the 2026 Electoral Act?
It says that where anybody files a petition over the conduct of an electoral officer, it shall not be necessary to join such officer. That is those who have disobeyed INEC instruction and guidelines, that it shall not be necessary to bring them to the commission.
That was why in 2019, in 2023 and previous elections, you find that INEC was joined, But you are saying that the people who rig election, presiding officer who actually were the maker of the document, because you have joined INEC as a respondent, it shall not be necessary to bring them to the tribunal. You remember that when a director of our commission who unfairly was brought to speak to documents he did not make, he was not able to read them.
Yet the court will now propose under the 2022 Act that have now been removed to the effect that once there’s a complaint about non-compliance to due process to the extent that the document is before the court is certified as INEC document, it shall not be necessary to call oral evidence because of the fact that most of the presiding officer will not be around.
As we speak, this provision that I have outlined, particularly means that at the level of the balloting, it has been sabotaged to the extent that you are going to have stuffing and people are going to produce their ballot papers.
But remember in 2019, in two states, one in the South-East, one in the South-South, some unscrupulous members of our commission gave the security features of ballot papers to politicians. And when INEC, in the case of Imo State, went to the court to say that this result sheet is not our document, the tribunal upheld a forged document. This is where the role of the judiciary comes in.
And this is where I am worried. My clarion call since 2010, when I came to the commission, has always been on the basis of my experience as a young man in Ondo State, where lives were lost because of the outcome of election. That’s why I’ve always called on my constituents to say that our legal profession is not just to make a living.
We have a special role to play in the life of a society and that is why if people have a problem, you come to us as lawyers. When you have a problem between yourself and government, you come to us as a lawyer. And the judiciary must be the last line of defence of democracy and the rule of law but that has not happened historically.
The sections you’ve spoken about, specifically 63 and 137, focus a lot on the role of presiding officers, returning officers ad hoc staff in essence. How do we navigate around this?
I want to quickly advise that INEC should quickly go back to the National Assembly to call for amendment or the repeal of section 63 of the Electoral Act as quickly as possible. You see, the ballot is the foundation but you are saying that a ballot paper that doesn’t have the official mark of INEC should be accepted. Look at the discretion given to a presiding officer. Meanwhile, those who actually conduct the election on election day are not the core regular staff of INEC.
They are ad hoc staff, who have not been given the orientation or the fact that the mission of INEC is to be an effective independent national electoral commission, committed to the conduct of free, fair and credible elections for the sustenance of democracy in our country. And added to that, it is about core values, I have the privilege of being appointed by two presidents of different political parties, and I’ve transverse the entire country conducting elections.
Do you know that there’s information that I put out there, somebody that was arrested in my office. This was a young man, look at all the cards that he was arrested with, and he was brought to my office. In the course of interrogation, he said because these cards were the ones that would be used, when you say section 149, the one that had been repeated and took 20 years.
He has all these cards. He’s going to find his way into the adult recruitment process. So, when he gets in there, it is the party that have recruited him, they will give him these cards, because the old section says that if the presiding officer is satisfied that the person before him is the rightful person, he shall take the register of voters.
He already has cards to do that. Similarly, with respect to presiding officers, do you know that when I had trained people on a Wednesday for the 2019 election, for Saturday election, politician went to share money for presiding officer in dollars. Some of that came to me. What did they tell me? They said, when I said, I train new people, and I said some of you will be arrested if you don’t observe the highest principle of ethical standard.
I was told that they pointed out to them this section that nothing will happen to them. They will not be invited to tribunal. This is what we are seeing here. Immunity has been provided for them. You rig election, you will not be invited. They said you cannot obey INEC instructions and nothing will happen to you. This is what they are going to do to train them.
The President of the Nigerian Bar Association indicted lawyers in a recent statement, when he was said that lawyers are also behaving like political agents. How do we position that in this framework?
The reason why I’m now asking my constituency to stand tall is the fact that in the final analysis, this matter will be taken to the court. We expect what we call a purposive interpretation, because every provision of the law that we were made to change was an account of a mischief that we have found over time.
It is now the duty of the court to advance the remedy that we have provided and suppress the mischief. That has not been happening at the level of the court. This is the problem that we have, and that has to be solved. So, as we are going to the 2027 elections, you already have provisions that will undermine the entire elections, because INEC chairman, national commissioner, RECs and EOs are not going to be involved.
What gives legitimacy to those in authority to exercise power is legitimate authority conferred on them by way of authorisation, which enables them to be accountable
On that day, they are merely supervisors. From the level of supervising presiding officers, who are members of federal agencies, down to the returning officers, they are people taken from federal agencies. And before that election, they are going to infiltrate all the federal agencies, and so, on that day, you will find out that people who are seated at the polling units are doing the wrong thing.
That’s why the last point on this was that we now develop what we call the Electoral Monitoring Support Centre (EMSC) as well as the Electoral Operational Support System (EOSC,).
In my conference room, we had a tracking system. I will track you, and that equipment was given to the entire INEC offices. And all the characters that we presented cases against, were sent to jail, while some of our staff were dismissed. It was on the basis of the tracking system that I sat in my office and tracked whatever happened from one local government to the other.
It looks as though this law is designed in such a way that the integrity of INEC is already destroyed, leading up to this election. Can you stake your money on the 2027 elections?
If the provisions that I have identified in the Electoral Act are not repealed immediately, I want to say that the integrity of the 2027 elections will be in flames. I say this because of my practical experience for 10 years and not 10 days. Good laws and good processes that are known by men and women of integrity will not take a country anywhere.
But inadequate law, inadequate process and procedure manned by people who are committed to the ideal of democracy will take a country somewhere. Election period is the moment where the integrity of institution of states, particularly those that are responsible for the management of elections, because election is a period for the renewal of the journey of a society, and renewal of policies.
So, when you still have enough time to change this, and you fail to change it, it means that we have decided as a people to do the wrong thing because law is not only an instrument of distributive instrument, but it’s also an expression of our collective values. If our value is to say that we should be rigging election; that’s unfortunate, because what gives legitimacy to those in authority to exercise power is legitimate authority conferred on them by way of authorisation, which enable them to be accountable.
Do you think there is still enough time with many bodies and scholars, including yourself, saying that the Electoral Act is defective, do we still have time to amend it or we just run with it as it is and then worry about it after the 2027 elections cycle?
Why did somebody bring a plane that we know is going to crash? I am saying this because how long does it take to identify and amend isolated provisions? Section 63, that’s the foundation of the election. The argument that it is work in progress; what kind of work in progress?
That’s why in my opening remarks, I made the point that what differentiates advanced democracy, a growing democracy and a retrogressive democracy like ours, is a question of rule of law. The law must be stable and be neutral. The sanctity of the law is what generates interest in electoral process and confidence. The sanctity of the law and procedure in terms of public perception of the institutions of state is what is required.
When I talk about judiciary, it’s a fact that the cases we have in court at the moment are completely unnecessary because section 83, just like decree number 13, section 32 of 1983, bars the courts from entertaining any matters concerning elections. It was my colleague who had an unregistered body that went to truncate theJune 12, 1993 election. How can the order of the court to maintain status quo become order to remove a political party? Democracy is what we fought for.
Democracy will not survive on the soil of absolutism. We must work hard to ensure that democracy survives. And at the heart of that is my constituency. So, I am making appeal to them concerning the issue of democracy. We have no hopeful future if there is no opposition. That is what guarantees democracy. That is my appeal, so that we can build a society where there will be opportunity for all.
