2015 polls: Electoral law as problem

Last week, the Chairman of National Electoral Commission (INEC), Professor Attahiru Jega told the Senate that he cannot guarantee the new dates of 28 March and 11 April for federal and state polls respectively. The circumstances and the controversies leading to this delicate point are well known and do not bear repeating. Many believe that […]

Last week, the Chairman of National Electoral Commission (INEC), Professor Attahiru Jega told the Senate that he cannot guarantee the new dates of 28 March and 11 April for federal and state polls respectively. The circumstances and the controversies leading to this delicate point are well known and do not bear repeating. Many believe that sensing defeat, the ruling Peoples Democratic Party (PDP) are using the insurgency in the North East as an excuse to buy more campaign time. There is a strong justification for this argument, and much has been said, but my aim here is to probe the legal framework which makes the postponement possible in the first place. For, a terrible precedence has now been set: the sanctity of the timing of an election, equal to the sanctity of the election itself, can be breached. Any government can contrive any reasons to have elections shifted to such a time as might favour it, thereby effectively removing the democracy in democratic elections.
First, both the Constitution and the Electoral Act give INEC the power to fix a date for general elections, but also provide a time frame for doing that. For example, Section 132 (2) of the Constitution provides that ‘’an election to the said office of the President shall be held on a date not earlier than 150 days and not later than 30 days before the expiration of office of the last holder of that office’’. The electoral act echoes the same thing. This implies that INEC has 120 alternative days to select a single day or two for elections, from 30 November to 29 April in any given election year. For me, this is the real problem. Time is of overwhelming importance in democratic governance. The essence of democracy is to ensure power is exercised not only within a limited scope but also within a limited time. This is why governments have tenures and while regular elections are held at all. If the 29 May handing over date is inviolable except in the most extreme of circumstances, so too must be Election Day. Elections are not what democracies do when the time is convenient; they are what a democracy must do even in the gravest of all inconvenience. Despite the severity of the American Civil War at the time, a keenly contested election still held on schedule on Tuesday, 8 November 1864, to renew or reject Lincoln’s term of office. And we are talking about a president like Abraham Lincoln here. The lesson should be clear: elections are a core of democracy, not one of its conveniences.
  Election Day should be specific and unambiguous as to be easily determinable for all future elections, so that over time, Election Day becomes not just sacrosanct, but also engraved within our democratic culture. This is the case in many democracies. In the US for example, general elections are held ‘’on the Tuesday right after the first Monday in November’’ of the election year, from 2 November to 8 November.   Nigeria requires a similar constitutional mechanism. It is not a good thing that no one knows when we will be voting for new governments in 2019 only four years away; we should know the date even forty years ahead, something like the last Saturday in February of the election year, counting every four years from 1999. This way, everyone knows we will be voting for new governments on Saturday, 27 February 2055, forty years from today.  
Secondly, the electoral act provides for a campaign period of 90 days, ending on the eve of polling day. This too is a problem. By adjusting the elections a further six weeks one week from the earlier scheduled date of 14 February, INEC has also effectively adjusted the period for the campaigns, thereby breaching the electoral law. This again shows why election dates should be inviolable. Moreover, how does the Act define a ‘campaign’? Modern democracies are actually in a state of permanent campaign. A sitting president, governor or council chairman who commissions a new railway or bore hole at any time during their tenure is not only governing, but also effectively campaigning, for themselves or their respective parties. So too is the opposition party which condemns the same railway as over-invoiced or the borehole as a misplaced priority.
Finally, there is the small paralegal matter of what for want of an apter term, I call ‘psychological freedom’. Sure, the institutional independence of INEC and the personal integrity of its present leadership are in little doubt. Indeed, the very fact that the PDP government has had to force INEC to postpone the elections itself indicates that a desperate government has yet to find a way to effectively compromise the institutional independence of the commission or its leadership. Yet, it must be said, a crucial link is still missing.   INEC appears to lack this dimension of independence. This manifests first in Professor Jega’s comportment during his most recent public appearances. The man has lost weight suddenly and also increasingly apologetic each time he has to explain anything about the conduct of the elections. Above all, the Professor’s characteristic self-assurance of a serious intellectual and activist, even in the face of intimidation by previous military governments, has almost disappeared. Who is pilling psychological pressure on the referee hours before a crucial game? Nigerians need to ask this all important question, not only for the sake of Professor Jega, which is important enough, but also for future holders of the office. But the problem is also institutional. In its short history, INEC has only ever handed out victory to the party in government; never a defeat. This means its constitutional independence has never been tested to the full, a fact further compounded by the constitutional provision that the President appoints the chairman and all the resident commissioners of INEC. President Jonathan declared a few days ago that he appointed everybody who matters at the electoral commission.
In our peculiar environment where loyalty to persons often trumps loyalty to the rules, it is difficult to understand the wisdom of the constitution here since this amounts to appointing the jury in one’s own case. There is a trace of all this in INEC’s postponement of the elections. By accepting a problem and its solution exactly as presented by an involved party to a dispute, INEC may have acted within the law, but it also displayed complete lack of psychological, or even intellectual, independence.   Most importantly, there is simply no reason why INEC has to agree entirely with the NSA’s version of the problem and the solution. According to INEC, the NSA’s letter said that the government was starting a major multinational offensive against insurgents in the North East. Therefore, there would not be sufficient military personnel to provide security throughout the country during the elections, hence the need to shift the elections for six weeks.

Suleiman is of University of East Anglia, Norwich, UK<[email protected]>;