Incumbency and impunity in the electoral process: Securing democracy beyond 2015

There are also people who look towards major elections with enthusiasm. To them it is a key step in their struggle to acquire power and wealth or to retain power and wealth. For desperate politicians, it is an opportunity to channel arms, ammunitions, and drugs to murderous gangs to intimidate, maim and chase away voters […]

There are also people who look towards major elections with enthusiasm. To them it is a key step in their struggle to acquire power and wealth or to retain power and wealth. For desperate politicians, it is an opportunity to channel arms, ammunitions, and drugs to murderous gangs to intimidate, maim and chase away voters from polling stations. For the professional thugs, cronies and town criers, the period is their season and must be exploited and used maximally.  
For some incumbent office holders, the process and preparation for re-election starts immediately after elections. Some of them take hold of the levers of power immediately. At the national level the finances of the government are captured and husbanded. The federal media and other organs of propaganda are captured. The security apparatuses are primed to respond to the political stimuli of the incumbent. Some institutions of public integrity are perverted to haunt down perceived opponents and enemies.
At the state level, the funds of the State are captured and husbanded. The funds of the Local Governments are captured. The States Independent Electoral Commissions are rendered impotent and programmed to return predetermined verdicts in Local Government Elections. The state media are also turned into the megaphone of the state governments. All these are done in preparation for the next election and in clear violation of the law. For the incumbents that are completing their second tenure in office, a crony or pliant   person must be groomed and programmed to replace him. Moreover, the Senator representing the Senatorial zone of the incumbent must be run out of town and out of the race because that is the natural habitat of incumbents completing their second tenure in office.
Some incumbent office holders act with impunity because some of them believe that whatever they do and whatever happens democracy as defined by them will survive.   
As Nigeria moves towards the 2015 elections, it is important to interrogate some of the assumptions imbedded in incumbents acting outside the law and the Constitution without anybody calling them to order or sanctioning them. It is also important to ask the question whether it is true that no matter the level of impunity by incumbent office holders, democracy will continue to grow and thrive in Nigeria beyond 2015.  Conversely, if the use of the power of incumbency and acting with a high level of impunity endangers democracy and democratic practices, what then can be done to prevent a slide to anarchy and unconstitutional takeover of government or general disengagement from the electoral process?  
The Essence of Democracy and Electoral Democracy  
Genuine democratic elections are an expression of sovereignty, which belongs to the people of a country, the free expression of which will provide the basis for the authority and legitimacy of government. The rights of citizens to vote and to be elected at periodic, genuine democratic elections are internationally recognized human rights. Genuine democratic elections serve to resolve peacefully the competition for political power within a country and thus are central to the maintenance of peace and stability. Where governments are legitimized through genuine democratic elections, the scope for non-democratic challenges to power is reduced.
It is in the context of popular sovereignty and the power of the vote that the assertion that sovereignty belongs to the people through whom governments derive their power and authority can be understood. This is because “since the birth of the modern state, and the major advances made in terms of the popular will as the source of sovereignty, election has offered a way through which the people exercise their right to determine their rulers. Election has been defined as one procedure of aggregating preferences of a popular kind. The bottom line of elections is that they offer choice to the electorate who can decide between two or several alternatives. Related to this, an election confers legitimacy on those elected, because this mode of political recruitment reflects the wishes and aspirations of the people. Furthermore, election promotes accountability, in the sense that the threat of defeat at the polls exerts pressure on those in power to exercise power in a responsible manner and to take account of popular interests and wishes in their decisions”.
The absence of choice in the electoral process, the use of underhand tactics to undermine the popular will, the subversion of the mandate of the people and the refusal to grant a level playing field for all contestants in an election is antithetical to the essence of democratic elections. This is because “the essence of democratic elections is that they be free and fair and that in that atmosphere of freedom, fairness and impartiality, citizens will exercise their freedom of choice of who their representatives shall be by casting their votes in favour of those candidates who, in their deliberate judgment, they consider possesses the qualities which mark them out as preferable candidates to those others who are contesting with them. The voters must be allowed to freely to go to the polling booths and cast their votes unmolested. Free and fair elections cannot, therefore, tolerate thuggery or violence of any kind; corrupt practice, impersonation, threatening, undue influence, intimidation, disorderly conduct, and any acts, which may have the effect of impeding the free exercise by the voter of his franchise”.  
The Ingredients of Free and Fair Elections
It is difficult to situate free, fair and transparent elections. This is because more often than not, free, fair and transparent elections are viewed, analyzed and situated within the parameters of Election Day activities or what happens on Election Day. Using Election Day activities to analyze and categorize whether an election has been free, fair and transparent or whether it reflects the popular will or the votes of the people leaves behind a whole array of data and indices that makes for credible elections.
Election is a complex process or web of activities with interconnected chains and components that function and oil one another. Some of the components are dependent on other components to function. The proper functioning or malfunctioning of any of the components can enhance or destroy the credibility of the entire electoral process. This presupposes that all the Election Day components of an electoral process can run smoothly and the election can still be categorized as not reflecting the wishes and aspirations of the people. Elections therefore involve pre-election day activities, Election Day activities and post election activities. “If we are to use the terms “Free and Fair” accurately and credibly in relation to any election, we must examine and understand the principles and components which underlie each term which are essential to achieving an internationally acceptable election, or, to quote the criteria used in the 1994 South African Election, a “substantially Free and Fair Election”  
The European Parliament Committee on Development and Cooperation’s Opinion of 9 January 2001, in conjunction with the Session Document of 14 February 2001, stated “that there are inherent difficulties with the use of the words ‘free and fair’ as a verdict on an election, and that other criteria should be included before an election is declared as having been in accordance with democratic standards.” Similarly, the Handbook for EU Election Observation Missions does not employ the term “free and fair”, which has often been used as a sound-bite for a narrow assessment of an election process. The Handbook emphasizes the concept of “genuine” elections, to underline the broad criteria that must be taken into account when judging whether an election is to be considered a meaningful reflection of the will of the electorate.
The New Partnerships for Africa’s Development (NEPAD) commits the whole of Africa, including Nigeria to “respect the global standards of democracy, the core components of which include political pluralism, allowing for the existence of several political parties and workers unions, and fair, open and democratic elections periodically organized to enable the people to choose their leaders freely.”   
The ECOWAS Protocol A/SP1/12/01 on Democracy and Good Governance Supplementary to the Protocol relating to the Mechanism for Conflict Prevention, Management, Resolution, Peacekeeping and Security  grappled with how to assess the credibility of elections in ECOWAS member states. The protocol underlined some benchmarks for the assessment of Elections. These include the following:  
1.    That no substantial modification shall be made to the electoral laws in the last six (6) months before the elections, except with the consent of a majority of political actors.
2.    That all the elections shall be organised on the dates or at periods fixed by the Constitution or the electoral laws.
3. That Member States shall take all appropriate measures to ensure that women have equal rights with men to vote and be voted for in elections, to participate in the formulation of government policies and the implementation thereof and to hold public offices and perform public functions at all levels of governance.
4. That the bodies responsible for organising the elections shall be independent or neutral and shall have the confidence of all the political actors. Where necessary, appropriate national consultations shall be organised to determine the nature and the structure of the bodies.
5. That each ECOWAS Member State shall ensure the establishment of a reliable registry of births and deaths. A central registry shall be established in each Member State. Member States shall cooperate in this area with a view to exchanging experiences and where necessary providing technical assistance to each other in the production of reliable voters’ lists.
6. That the voters’ lists shall be prepared in a transparent and reliable manner, with the collaboration of the political parties and voters who may have access to them whenever the need arises.

7. That the preparation and conduct of elections and the announcement of results shall be done in a transparent manner.
8. That adequate arrangement shall be made to hear and dispose of all petitions relating to the conduct of elections and announcement of results.
9. That Member States shall use the services of civil society organisations involved in electoral matters to educate and enlighten the public on the need for peaceful elections devoid of all acts of violence.
10. That the party and/or candidate who loses the elections shall concede defeat to the political party and/or candidate finally declared the winner, following the guidelines and within the deadline stipulated by the law.
11. That all holders of power at all levels shall refrain from acts of intimidation or harassment against defeated candidates or their supporters.
These ingredients are necessary for credible elections to hold. Where opposition politicians are muzzled using the power of incumbency, the atmosphere for credible and transparent elections has been subverted. Where state funds are applied and appropriated for individual partisan purposes, the level playing ground for credible and transparent elections is absent. Where the law enforcement agencies are primed to harass and intimidate political opponents, the stage for credible and transparent elections is absent.
The Law, the Constitution and Elections in Nigeria.   
The electoral process in Nigeria is guided and circumscribed by constitutive instruments. These include the Constitution of the Federal Republic of Nigeria, 1999(as amended); the Electoral Act, 2010 (as amended), the various manuals, and gazettes produced by the Election Management Body as supplementary or addendum to the Electoral Act, 2010 (as amended).
The Constitution as the fundamental law of the land articulates the shared values, interests, aspirations, fears and challenges of the Nigerian people. It “sets the parameters within which the country shall be governed. It establishes the institutional structures of government and either expressly or by necessary implication their inter-relationship, and spells out the basic rights of citizens and the obligations of the executive.”  
The Constitution of the Federal Republic of Nigeria, 1999 (as amended) declares its own supremacy over all persons, institutions and laws. It states clearly in Section1 (1) that:
This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
Section 1(3) of the same Constitution also provides that:
If any other law is inconsistent with the provisions of this Constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistency be void.
The Supreme Court of Nigeria has also given judicial stamp to the Supremacy of the Constitution. In the case of A.G., Ondo State v. A.G., Fed (2002) 9 NWLR (Pt. 772) the Supreme Court stated that:
“It must be recognised that our Constitution is an organic instrument which confer powers and also creates rights and limitations. It is the supreme law in which certain first principles of fundamental nature are established. Once the powers, rights and limitations under the Constitution are identified as having been created, their existence cannot be disputed in a court of law. But their extent and implications may be sought to be interpreted and explained by the court in cases properly brought before it. All agencies of government are organs of initiative whose powers are derived either directly from the Constitution or from laws enacted thereunder. They therefore stand in relationship to the Constitution as it permits of their existence and functions.
Being the Supreme Law of the land, section 153 creates the Independent National Electoral Commission as a Federal Executive Body and articulates its powers and functions under the Constitution. The Constitution also confers on the National Assembly the power to make laws for the Electoral Management Body supplementary to the powers granted to them by the Constitution and this led to the promulgation of the Electoral Act, 2010 (as amended).  
More fundamentally, section 1(2) of the Constitution of the Federal Republic, 1999 (as amended) makes it clear that the Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the government of Nigeria or any part thereof, except in accordance with the provisions of the Constitution.  Therefore based on this the President, the Governors , members of the National and State Assemblies are elected in such a manner as prescribed by an Act of the National Assembly.   The implication of these provisions is that persons and political parties can only come to power through the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Electoral Act, 2010 (as amended) which is an Act of the National Assembly. The necessary deduction from these provisions is that those that deliberately breach the law and the Constitution in their quest for power are in direct subversion of section 1(2) of the Constitution of the Federal Republic, 1999 (as amended) which prohibits any person or group of persons from taking control of the government of Nigeria or any part thereof, except in accordance with the provisions of the Constitution
The Question of Incumbency and Impunity.
There is a correlation between incumbency, impunity and “stolen mandates.” Acts of impunity by incumbents is antithetical to democracy and the rule of law.  This is because section 15(1) of the Constitution of the Federal republic of Nigeria, 1999 (as amended) is emphatic that the Federal Republic of Nigeria shall be a State based on the principles of democracy and social justice.
By incumbent we refer to the existing holder of a political office. These incumbents can be in the Executive, legislative or Judicial Arms of Government. It is immaterial that under the doctrine of separation of powers they are compartmentalized but in law and in fact, all of them wield the powers of the Federal Republic of Nigeria. Therefore incumbent office holders in any of these arms cannot carry on the functions of office in a manner that subverts the law and the Constitution.
And in politics, sometimes elections and political succession are often defined as being between the incumbent holder of an office and non incumbents. In the Nigerian parlance, elections are conducted to the office of the President, Governors, National and State Assemblies, Chairman and Councilors of Local Governments and Area Councils.  While the President, Governors and Local Government and Area Council Chairmen wield executive powers, the members of the National and State Assemblies as well as Councilors wield legislative powers. Although all of them are incumbent office holders, the incidents and appurtenances of office are different. “In general, incumbents have structural advantages over challengers during elections. The timing of elections may be determined by the incumbent instead of a set schedule. For most political offices, the incumbent often has more name recognition due to their previous work in office. Incumbents also have easier access to campaign finance, as well as government resources (such as the franking privilege) that can be indirectly used to boost a campaign”.   
Generally speaking therefore, there is nothing wrong with being an incumbent as it is a position derived and ascended to by virtue of constitutional and legal provisions. The power of incumbency becomes a subject of controversy when the incumbent office holder uses the office as a shield to act outside the law and the Constitution. In other words, the essence of democracy is subverted when an incumbent holder of an office become a ‘dog in the manger’ and acts with impunity.  
The Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, submitted to the United Nations Commission on Human Rights on 8 February 2005, defines impunity as:
“the impossibility, de jure or de facto of bringing the perpetrators of violations to account – whether in criminal, civil, administrative or disciplinary proceedings – since they are not subject to any inquiry that might lead to their being accused, arrested, tried and, if found guilty, sentenced to appropriate penalties, and to making reparations to their victims.”  
Principle 1 of that same document states that:
“Impunity arises from a failure by States to meet their obligations to investigate violations; to take appropriate measures in respect of the perpetrators, particularly in the area of justice, by ensuring that those suspected of criminal responsibility are prosecuted, tried and duly punished; to provide victims with effective remedies and to ensure that they receive reparation for the injuries suffered; to ensure the inalienable right to know the truth about violations;
Incumbency, Elections and Impunity
Elections in Nigeria have since independence been contentious and confrontational because the politicians in their bid to win at all costs often cross the norms of proper conduct. When highly placed politicians behave in anti-social ways, it is sure invitation to criminals and other anti-social elements to find a foothold in the electoral process by way of fraud and violence.  
Hence, getting it right and making the votes of the people to count have not been an easy task in Nigeria. After several years of independence and conducting elections, it is puzzling that we are still grappling with getting it right.  We make excuses for ourselves on why we cannot get it right. We use the size of the country, our ethnic and religious diversity, the difficult terrain in some of the states and a dubious learning process as alibi on why we cannot do things right or get things right.  As pointed out by Abel Guobadia, former Chairman of the Independent National Electoral Commission, “the propensity on the part of politicians to breach the integrity of the electoral process is firstly blamed on their lack of practice of democracy due to long years of military rule. They want a longer learning process. A second contributing factor is the strong suspicion by all opposition political parties about the hidden influence which the incumbent government can bring to bear on the conduct of elections. The so called incumbency factor is fuelled by the fact that even unpopular leaders in the face of visible stiff opposition to their continued stay in power fight relentlessly to win nominations and get elected by whatever means they can mobilize.”
Unfortunately, political parties that are key institutions of democracy and properly positioned to control the excesses of incumbents and political office holders are under the firm grip of the incumbent Presidents and Governors. This is quite evident in the way the Political parties are organised and run. One of the most pernicious reversals in our electoral fortunes is that the Political Parties are now only constitutional and legal platforms for political power. Their powers are however fundamentally circumscribed by the power of the President, Governors, members of the National and State Assemblies and Chairpersons of the various Local Governments. The only nexus between the Party and the Incumbent office holders is that the incumbents must belong to a Political Party and be sponsored by the Party for the purposes of contesting elections as the Constitution does not recognise independent candidature.  Other than that, the President is the Party and the Party is the President. At the State level, the Governor is the Party and the Party is the Governor. The nomenclature of the President being the leader of the Party at the federal level and the Governors as the leaders of their parties at the State level and the National and State Chairpersons of the Party exercising executive powers is just a subterfuge to the castration of elected party executives.

Mr. Okoye is National Coordinator, Independent Election Monitoring Group. He presented this paper at the 11th Daily Trust Dialogue in Abuja on January 16.

(To be continued)