Electoral Offences: INEC And Burden Of Prosecution

Electoral Offences: INEC And Burden Of Prosecution

*Echoes of Uwais panel recommendation over Electoral Offences Commission Bill

The recent call by the chairman of the Independent National Electoral Commission (INEC), Prof. Mahmood Yakubu, for the Federal Government to establish an Electoral Offences Commission has reechoed the recommendations of the Justice Mohammed Uwais-led Electoral Reform Committee.

Yakubu, who spoke at a oneday public hearing of a “Bill for an Act to Establish the National Electoral Offences Commission and Related Matters, 2022” conducted by the House of Representatives Committee on Electoral Matters, last week, said an Electoral Offences Commission will not only help to take the campaign against electoral malpractices to those he described as “highly placed sponsors” but relieve INEC of the extra burden of prosecuting all electoral offenders.

The bill is a consolidation of four private member bills as well as the version passed by the Senate, and it provides for an imprisonment of up to 20 years or a fine of N40 million or both for the offence of obstructing vote-counting and other acts inhibiting the electoral process.

It also provides for an imprisonment of up to 10 years or a fine of N40 million or both for hate campaign such as the use of threatening words or action and display of any written material that threatens or incites violence.

The INEC chairman in his presentation before the committee, said although the electoral commission is opposed to some of the clauses in the bill, it believes that the work of the proposed commission will help in the prosecution of electoral offenders. He added that since perpetrators of electoral offences are most times not the beneficiaries of the crime, it was imperative for their sponsors to be fished out.

His words: “In addition to its responsibilities, the commission is required to prosecute electoral offenders. However, the commission’s incapacity to arrest offenders or conduct an investigation that leads to the successful prosecution of especially high-profile offenders led to the suggestion to unbundle the commission and assign some of its extensive responsibilities to other agencies as recommended by the Uwais and Nnamani committees.

“For those who argue that the solution does not lie in expanding the federal bureaucracy by creating a new commission, we believe that the National Electoral Offences Commission should be seen as an exception. While there are other security agencies that deal with economic and financial crimes, I am yet to hear anyone who, in good conscience, thinks that it is unnecessary to have established the anti-corruption agencies.

“However, these courts are already over-burdened. It is proposed that the Electoral Offences Tribunal be established with exclusive jurisdiction to try electoral offenders. It is clear that the reform of our electoral process cannot be complete without effective sanctions on violators of our laws. At present, INEC is saddled with the responsibility of prosecuting electoral offenders under the Electoral Act.

“This has been very challenging for the commission. For instance, since the 2015 general election, 125 cases of electoral offences were filed in various courts out of which 60 convictions have been secured so far, including the most recent one in Akwa Ibom State.

The commission would like to see more successful  prosecution of offenders, not just ballot box snatchers, falsifiers of election results and vote buyers at polling units but most importantly, their sponsors.

“We look forward to the day when highly placed sponsors of thuggery, including high-profile figures that seek to benefit from these violations, are arrested and prosecuted. We believe the work of the proposed commission will help in this regard.”

Among the clauses in the bill faulted by the INEC chairman is Clause 44, which empower the Attorney-General of the Federation (AGF) to make laws for the commission. Prof. Yakubu, who said that allowing such provisions to sail through will erode INEC’s independence, however, expressed the hope that the National Assembly will pass the bill, so that it will not suffer the fate of previous ones.

Speaker of the House of Representatives, Hon. Femi Gbajabiamila, while declaring the public hearing open, said electoral crimes lead to low quality, corrupt and violent political leadership, as it helps election riggers and offenders take control of government against the democratic will of the electorate.

The speaker, who was represented by his deputy, Idris Wase, noted that a review of Nigeria’s past elections indicate the need for the National Assembly to take necessary legislative steps to address identified challenges and plug the loopholes associated with the conduct of  elections in the country.

Electoral offences

Among those who believe that the INEC had not done enough in bringing electoral offenders to book, the only acceptable excuse is lack of capacity and not the enabling law as the Electoral Act (as amended) spelt out in clear terms what constitute electoral offences. The act also empowers the 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 organisations) 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 criminalises 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 electorate on electoral officials; its contravention attracts a maximum fine of N100, 000 or 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.

From electoral violence to vote-buying

Nigeria has a chequered history of electoral violence and other related offences. However, from electoral violence to ballot snatching and stuffing, the drift at the moment is vote-buying, which involves inducement of the electorate 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 becoming clear that it is now the major determinant of electoral contests given the outcome of the recent primary elections of the major political parties to nominate candidates for the 2023 general election and the June 18 governorship election in Ekiti State. Massive vote buying was reported during the election and the major culprits were the leading political parties.

Agents of the parties were said to have openly induced voters with money ranging from N5,000 to N10,000 per vote. The voters were in turn asked to flag thumb-printed ballot papers as proof of voting in the specified manner in what was termed “see and buy,” a development that was confirmed by the various teams that monitored the election.

Interestingly, inducement of the voters was done in the open even as operatives of the Economic and Financial Crimes Commission (EFCC) arrested some of the suspected vote-buyers with bags of cash. The Inter-Party Advisory Council (IPAC), which confirmed incidents of vote buying during the Ekiti governorship election, said its observation team witnessed brazen act of vote-buying by agents of political parties, while INEC officials and security agents looked the other way.

National Chairman of IPAC, Yabagi Yusuf Sani, said the ugly episode not only eroded the value of the hard work by INEC, but inadvertently affected the perception of the citizens as to the capacity of the electoral commission to conduct and ensure credible election results.

His words: “Sadly, the election was a daylight robbery characterized by brazen and outrageous vote buying, sundry electoral malpractices and voter apathy thereby putting in question the legality of the process leading to declaration of Biodun Oyebanji, the candidate of the ruling All Progressives Congress (APC) as the winner.

“It is obvious that the voters who sold their ballots for a mess of electoral porridge have inadvertently mortgaged their future for the next four years by electing a leader who may not have necessarily been their choice if the election were to be devoid of obscene use of money to induce voters.”

Sani further noted that the council was initially optimistic that with improved technology, particularly the deployment of the Bimodal Voter Accreditation System for verification, accreditation and confirmation of eligible voters and heavy deployment of security operatives, the Ekiti election would be credible, but that was not the case.

“Sadly, it didn’t turn out as expected. IPAC is deeply saddened and worried about the ugly high incidence of vote-trading between the electorate and political actors in open connivance with some security agents saddled with the responsibility of arresting and prosecuting electoral offenders and their sponsors. “This unfortunate vicious circle of electing leaders after inducement has been the bane of the nation’s democracy since Independence in 1960, particularly since the return of democracy in 1999.

“Election is the beauty of democracy; the ballot is sacrosanct and should not be traded on for any reason or for no reason whatsoever. The destinies of millions of fellow compatriots are at stake, when the will and mandate of the people is brazenly stolen through vote-buying by political buccaneers masquerading as democrats with a mission to loot our common patrimony,” he said.

The National Peace Committee led by a former Head of State, General Abdulsalami Abubakar, equally confirmed that incidents of vote-buying characterized the Ekiti State governorship election.

The group in a statement, said: “We strongly decry the incidence of vote-buying recorded during the election and urge the security agencies to ensure that investigations are conducted, that all perpetrators of this antidemocratic acts are prosecuted and brought to justice with the provisions in the electoral law.

“The practice of vote-buying undermines the values which underpin our democratic life. It reduces the privileged selection of those who steward our commonwealth through our electoral processes, as being transactional. We must hold to account all who would muddy the springs from which we as a people seek to drink from collectively by such actions of bribery, both the giver and receiver.”

Chairman of the Transition Monitoring Group (TMG), Auwal  Rafsanjani, who also decried the level of vote-buying recorded during the Ekiti election said: “Vote-buying was observed across the 16 local government areas of the state with political parties bidding for the votes of electorate.”

“The ability of Ekiti politicians to make light of such a grave violation of extant law is most unfortunate. Transformation Monitoring Group condemns this blatant violation of the electoral law,” he added.

Uwais committee recommendation

Former President Umaru Yar’adua, who set up the Electoral Reform Committee under the headship of Justice Uwais (a former Chief Justice of Nigeria) on coming to power in 2007, admitted that the election he won the previous year was flawed. The committee delivered on its mandate and submitted its report within a year. It formally submitted its report on December 11, 2008.

Unfortunately, Yar’adua was unable to implement the report as he died before he served out his tenure. The succeeding government led by his deputy, Goodluck Jonathan, promised to implement the report but it never did until it was voted out in the 2015 general election.

The Uwais committee report consists of six volumes. Volume one deals with the main report while volume two and three deal with memoranda received by the committee made up of 22 parts and analysis of the presentations made at the public hearing held by the committee.

Volume four, which is in 13 parts contains the verbatim report of the public hearings, while volume five and six contain reports of retreats held with foreign experts and the appendices to the main report. Justice Uwais had reasoned then that the 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 with international best practices.”

Among the recommendations of the report include the appointment of chairman of INEC and the rest of the board by the National Judicial Council (NJC); that only the Senate should have the power to remove the INEC chairman or anyone on the board based on the NJC’s recommendation and funding of INEC directly through the Consolidated Revenue Fund of the federation.

Others are setting up of a Constituency Delimitation Commission, Political Parties Registration and Regulatory commissions; holding of presidential and governorship elections at least six months before the expiration of the term of the current holders of the offices; independent candidates and that no elected person should assume office until the case against him or her in the tribunal or court is determined. Of particular interest was the recommendation by the committee for the setting up of an Electoral Offences Commission to ensure prosecution of offenders even after the winner would have emerged.

A similar recommendation was made by the Sheikh Lemu panel set up the administration of President Jonathan to investigate the 2011 post elections. The panel looked into the crisis the trailed the 2011 elections and reported that 943 persons died, while 843 were injured due to electoral violence.

Consequently, it recommended the establishment of “an autonomous and  constitutionally recognised Electoral Offences Tribunal, but which may be an ad hoc body as it may not have much to do in between election periods.”

The Jonathan administration not only accepted the recommendation, it also directed the Attorney General to take steps towards setting the tribunal but nothing came out of the directive.

Nnamani Committee’s recommendations

The report of the Constitution and Electoral Reform Committee set up by the Muhammadu Buhari administration and headed by Senator Ken Nnamani (a former President of the Senate) submitted recommended among others, the unbundling of INEC.

It also proposed the establishment of new agencies that will handle some of the commission’s tasks, participation of independent candidates, Diaspora voting and the use of technology for elections. But unlike other previous reports on electoral reform, the committee did not recommend the establishment of the electoral offences tribunal.

Rather, it recommended the expansion of courts by building more courtrooms and appointing more judges under the existing court system. Two new agencies, proposed by the Nnamani committee to take up some of INEC’s mandates, are the Political Parties and Electoral Offences Commission (PPEOC) and the Constituency Delineation Centre (CDC).

While the PPEOC will be concerned with the registration and regulation of political parties as well as prosecution of electoral offenders in regular courts, the CDC will carry out the delineation of constituencies.

Interestingly, the committee did not end its job with the report; it submitted it alongside four proposed bills, two of which sought the establishment of the new agencies. The two other bills sought amendments to relevant parts of the Constitution and the Electoral Act. The four bills were expected to be transmitted to the National Assembly as executive bills. Like in the past nothing came out of the effort.

Stakeholders back INEC

Some analysts, who backed INEC on the establishment of a separate agency to tackle electoral offences, said the move will not only curb electoral fraud, but will fast track the prosecution of offenders to serve as deterrent to those who subvert the electoral process. It was advanced that 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 many disengage from the electoral process as very few would want to go to the polling units to be maimed or killed by political thugs.

It was further argued that electoral impunity leads to emergence of administrations that do not command the confidence of the people and that of the international community as well as leads to political and economic instability given the fact that those robbed of their electoral victory may employ illegitimate means to overturn the said election.

IPAC chairman, Sani, who spoke at the public hearing by the House of Representatives, said the political parties believe that the proposed Electoral Offences Commission will fill the missing link in ensuring credible, free, fair and more inclusive elections in Nigeria.

“We welcome the development because we believe it will make a much organised space for no impunity as we observe today. And going forward, Nigeria will be respected in the comity of nations. We are ready to cooperate and ensure that this law is properly enforced,” Sani said.

 Executive Director, Policy and Legal Advocacy Centre (PLAC), Clement Nwankwo, who also backed the proposed commission, however, called for a reduction of the N40 million fine on electoral offenders in line with current realities. His words: “I think 20 years imprisonment for vote-buying is overwhelming.

The INEC chairman has already said that the persons sponsoring this are lurking somewhere in the shadows. Those who are running around snatching ballot boxes and giving the money certainly cannot afford N40 million as fine and their sponsors are going to hide and disappear and leave them to bear the brunt of it. “So, I think the offences should be commensurate with the reality.

It won’t even make a judge impose that sentence rather than think how unjust it will be to impose such a huge fine or imprisonment on the offenders.” Nwankwo added that the Electoral Offences Commission must be independent and insulated from partisanship.

According to him, “the commission, if it should be set up, should really give the outlook of independence and impartiality. We don’t have a problem with the president making nominations but those nominations should be subject to Senate confirmation.”

Chairman of the House Committee on Electoral Matters, Aishatu Dukku, who also backed establishment of the Electoral Offences Commission, warned that any delay in passing of the bill could jeopardise the 2023 pools. “Some may argue that the 2022 Electoral Act has vested INEC with the power of prosecution, which the commission has been doing over the years but the position of INEC has been that the enormity of the work is such that is beyond its capacity.

 “Having an Electoral Offences Commission in place will enhance the credibility of the electoral process and contribute to the nation’s plan to have free, fair, and credible polls since there are provisions in the law to serve as disincentive to those interested in electoral offences.”

EFCC disagrees with INEC

While major election stakeholders are in support of the establishment of an Electoral Offences Commission, the Economic and Financial Crimes Commission (EFCC) is of the view that creation of such agency will amount to duplication of functions.

An Assistant Commandant with the EFCC, Mrs. Deborah Ademu-Eteh, in a presentation on behalf of the chairman of the anti-graft agency, Abdulrasheed Bawa, said electoral offences are already covered under the penal and criminal codes, the Independent Corrupt Practices and other Related Offences Act (2000 and the Economic and Financial Crimes (Establishment) Act, 2004. Noting that elections are seasonal, she called for existing security agencies to be strengthened to prosecute electoral offences.

“There is no need to create an agency solely for the purpose of investigating and prosecuting electoral offences most especially when our electoral process is seasonal in nature being that elections are held once in four years in the country.

“Furthermore, it is our suggestion that the existing law enforcement agencies should be strengthened to achieve maximum output instead of creating a new agency of investigation and prosecution of electoral offences in the light of the ongoing plan to implement the Oronsanye Committee proposal by the Federal Government of Nigeria,” she said.

The EFCC official added: “A holistic review of the contents of the proposed bill shows that the offences contained therein in Part IV (Sections 13-32) largely constitute offences that have already been criminalised by extant laws such as the Electoral Act, 2022 (See Sections 114-129), The Penal and Criminal Codes, the Independent Corrupt Practices and other related offences Act, 2000; The Economic and Financial Crimes (Establishment) Act, 2004.

“It is apposite to state that these offences are offences that the Nigerian Police, the Federal Ministry of Justice, the Economic and Financial Crimes (EFCC), the Independent Corrupt Practices and other related offences Commission (ICPC), and even the Independent National Electoral Commission (in Section 145 of the Electoral Act, 2022) are empowered under our extant laws to investigate and prosecute.

“There is, therefore, no need to create an agency solely for the purpose of investigating and prosecuting electoral offences most especially when our electoral process is seasonal in nature being that elections are held once in four years in the country.

Furthermore, it is our suggestion that the existing law enforcement agencies should be strengthened to achieve maximum output instead of creating a new agency to investigate and prosecute electoral offenders.”

HURIWA warns on classification of hate speech as electoral offence

National Coordinator of Human Rights Writers Association of Nigeria (HURIWA), Comrade Emmanuel Onwubiko, who rejected an aspect of the bill (Clause 32), which seeks to classify hate speech as an electoral offence with a 10-year jail term and N40m fine, described it as obnoxious and counter-productive.

“The ‘Bill for an Act to Establish the National Electoral Offences Commission and for Related Matters, 2022’ is germane and generally acceptable but the obnoxious provision therein is counter-productive, undemocratic and unconstitutional and therefore null, void and of no moment and should be discarded and the sponsor named, shamed as an enemy of free speech and hater of constitutional democracy. “That provision in the fresh bill is another way of trying to stifle press freedom and freedom of speech in the country…

The current regime has tried in many ways to stifle free speech unconstitutionally. The proposed bill tagging hate speech electoral offence is not only antidemocratic but oppressive. The criminalization of free speech is antiquated and only belongs to a repressive military regime.

“The present rulers of Nigeria must realise that the game of military subjugation is over. Section 39(1) of the 1999 Constitution of Nigeria guarantees freedom of expression as a fundamental right.

According to the 1999 constitution, “every person shall be entitled to freedom of expression, including the freedom to hold opinions and to receive and impart information without interference,” Onwubiko said.

While Nigerians await the position of the House of Representatives on the proposed Electoral Offence Commission, the consensus is that there is the need to ensure that justice is done to those who willfully throw spanner on the wheels of the nation’s electoral process. It is also believed that passage of the bill into law will go a long way in helping the INEC to realise its chairman’s recent boast that the 2023 elections will be the best ever conducted in the country.