Incumbency and impunity in the electoral process: Securing democracy beyond 2015 (Continued from yesterday)

When the President and the Governors cannot get their candidate through the Party primaries, they revert back to  the proviso to section 31(1) of the Act which states that “ every political party shall not later than 60 days before the date appointed for a general election under the provisions of this Act, submit to […]

When the President and the Governors cannot get their candidate through the Party primaries, they revert back to  the proviso to section 31(1) of the Act which states that “ every political party shall not later than 60 days before the date appointed for a general election under the provisions of this Act, submit to the Commission in the prescribed forms, the list of the candidates the party proposes to sponsor at the elections, provided that the Commission shall not reject or disqualify candidates for any reason whatsoever”
The control of the power of the purse and the levers of power and the misuse of incumbency powers are huge challenges to the electoral process. As pointed out by Professor Attahiru Jega, the Chairman of the Independent National Electoral Commission “There is also the abuse of incumbency powers, particularly by parties that are in charge of the states or at the federal level. There is a lot of evidence of this tendency. We all know this, and there is perhaps no point belabouring the point. In the electoral process, we see much of this in terms of denial of opportunity for the opposition to be able to even canvass their alternative views; and this is very serious. For example, radio stations that are controlled by state governments deny air time to parties that are not in power, even when such parties want to pay to be able to campaign. This is not to mention being given unequal attention in terms of reportage of news, and so on and so forth.”
The power of incumbency is more perniciously exhibited by incumbents before, during and after elections. They do this because they know that there are no consequences for their actions and if there are consequences they know how to “quench it”. In the run up to the 2003 general elections, incumbents at the Federal and State level used all sorts of tactics and subterfuge to railroad their campaigns. We cannot forget in a hurry the attempt by President Obasanjo in collaboration with the leadership of the National Assembly to mutilate the Electoral Act, 2001. We cannot forget in a hurry the use of “Corporate Nigeria” to raise money for the Presidential Campaign of Obasanjo in breach of the provisions of the Companies and Allied Matters Act.  
“The impunity outlined above was not limited to the Presidency. All over the nation, office holders used government resources, logistics and property for electoral purposes. Agencies and instruments that were conscripted included official media outlets, vehicles, funds, facilities and goodwill. The cost to the citizens was enormous and I hope someday someone will calculate in monetary terms, the degree to which Nigerians were forced illegally to subsidise these corrupt office holders. The use of security personnel to steal the vote in several states, particularly in the South-South and parts of the South-East, was a very dangerous risk given our recent experience with military rule”
The recklessness of some incumbent Governors’ has led to the complete castration of the Local Governments. Local Governments are dissolved at will and some Chairpersons removed at the discretion of the Governor. Allocations meant for some of the Local Governments are administered by Sole Administrators in contravention of section 7 of the Constitution of the Federal Republic of Nigeria. Where elections are organized, the States Independent Electoral Commissions are rendered impotent and programmed to return predetermined verdicts in Local Government Elections. It is a fact of history that no Local Government Election has been held in Anambra State since 1999 and the first one is scheduled to hold on the 11th day of January 2014.
Furthermore, because of the opaque nature of accountability in Nigeria the weakened power of the National and State Assemblies, the limitations relating to the spending limit of candidates is taken for granted. Section 90 of the Act prescribed that the maximum election expenses to be incurred by a candidate at a Presidential election shall be N1, 000, 000,000.00. The maximum election expenses to be incurred by a candidate at a Governorship election shall be N200, 000,000.00. The maximum election expenses to be incurred by a candidate in respect of Senatorial and House of Representatives seat shall be N40, 000,000.00 and N20, 000,000.00 respectively. Incumbents use security votes and other channels to spend over and above the spending limits and the electoral management body does not have the means and the capacity to check these excesses. Therefore the sanction for contravention provided in section 91(10) and (11) of the Act becomes meaningless.
Incumbents know this and they know that Nigeria is cash based economy where it is easy to move money around and it is difficult to trace dirty electoral money as some of the incumbents, their friends, fronts and cronies have their own banks, Bureau de Change and cash officers in the different Banks and Finance Houses.
Moreover, election expenses (however incurred) can only attract sanctions if incurred by a candidate before the notification of the date fixed for the election and excludes any expenditure incurred before the notification of the date fixed for the election with respect to any deposit made by the candidate on his nomination in compliance with the law. This enables incumbents use security votes and funny allocations and expenditure by Ministries, Departments and Agencies of Government to prepare in advance for elections.
This unregulated expenditure enables most incumbents to hire and pay political thugs, Party Agents, private security outfits and “opinion leaders” before the notification of the day of the election in contravention of law and the Constitution. These political thugs engage in myriad of electoral crimes and are shielded by the ‘Executive Thugs’ using the power of incumbency. “Many of the thugs’ politicians armed and drugged for use to either grab or retain power are those who formed the nucleus of Boko Haram members; militants in the Niger Delta; Ombatse in Nasarawa; and increased the strengths of armed robbers and kidnappers on our highways”.   This is in spite of the fact that section 95(5) of the Act provides that “a political party or member of a political party shall not retain, organise, train or equip any person or group of persons for the purpose of enabling them to be employed for the use or display of physical force or coercion in promoting any political objective or interest, or in such manner as to arouse reasonable apprehension that they are organised, trained or equipped for that purpose.”
At the federal level, attempts have been made in the past and continue to be made to use the different arms of the security services and enforcement agencies to harass, intimidate and disqualify candidates for elections. Those that are in the good books of the incumbent regime at the federal level are assured of immunity from investigation and prosecution from any form of corruption or abuse of power while those that have refused to fall in line are hounded and in some cases removed from office.
On Election Day, orderlies are used to harass and rig elections. They are used in collaboration with political thugs to engage in targeted attacks against staff of the Independent National Electoral Commissions, agents of political parties and election observers. Some of the incumbents engineer the attacks and coordinate the fraud because they are aware of the limitations of the Independent National Electoral Commission and the Police in terms of the arrest and prosecution of electoral offenders. The facts and the precedents bear them out.
By section 150 of the Electoral Act 2010 (as amended) the prosecution of electoral offences in the High Court and the Magistrate Courts shall be undertaken by Legal Officers of the Commission or any Legal Practitioner appointed by the Commission. After the conduct of the voters registration exercise, the Independent National Electoral Commission registered a total of 73.5milllion voters and out of this number, they detected 870,000 multiple registrants and prosecuted 270 of the offenders.  
Furthermore, after the conduct of the 2011 general elections, the Police and the Commission charged a total of 482 electoral offenders to court. It secured conviction on 31 of the casesand 172 of the cases were struck out and or determined for a variety of reasons. These prosecutions were carried out on a budget of N10, 000,000.00(Ten Million Naira) only allocated to the Independent National Electoral for the prosecution of electoral offenders under the 2013 budget.   
Some of the incumbents reason that whatever the challenges, when they win elections or re-election, they have enough resources, intimidating powers and clout to terminate any form of prosecution against their cronies, agents and political thugs. They know the limitation of the Electoral Management Body in terms of resources, personnel and capacity to prosecute electoral offenders. This is contrasted with the huge resources available to them to hire the best lawyers in the country and bribe witnesses to keep away from the courts and or to give evidence contrary to their written statements and depositions. As pointed out by the Chairman of the Independent National Electoral Commission, Professor Attahiru M. Jega “The issue of electoral offences and the impunity with which they are committed is also something that we have to deal with. We have done our best since we came in as a new Commission to prosecute electoral offenders, both during the registration exercise and the elections. And we recorded quite a number of successful prosecutions, even though these are relatively few compared with the large number of offenders. One of the major challenges we have, obviously, has to do with institutional weaknesses, such as inadequacy of legal capacity to prosecute such large numbers successfully within a short period. Preceding the April 2011 elections, we were able to enter into an agreement with the Nigerian Bar Association (NBA), which committed itself to providing legal services to aid successful prosecution of these electoral offences. Unfortunately, it took time before we finalized this agreement; and though many promises were made to prosecute those who had engaged in multiple registrations, we were not able to do that before the elections.
Incumbency, Assumptions and Impunity
There are some assumptions that underline and define the behavior of some incumbent office holders and drive them towards acts of impunity. The first is that the Nigerian people “love life” and that no matter the level of impunity in the land, protest will last for a few days and fizzle out. This was the assumption during the oil subsidy crisis before it assumed a life of its own and led to panic by the Federal Government. This was also the assumption when the post 2011 election crisis erupted and almost brought the country to its knees.
The second is that no matter the level of their behavior, there are a body of laws and conventions at the regional and international sphere that will not allow any unconstitutional takeover of government. This they reason keeps the military in check and the cost of military intervention and securing legitimacy is too heavy for the military to contemplate any adventure in the political arena. This is mostly anchored on the provisions of section 25 of the African Charter on Democracy, Elections and Governance which provides that when the Peace and Security Council observes that there has been an unconstitutional change of government in a State Party, and that diplomatic initiatives have failed, it shall suspend the said State Party from the exercise of its right to participate in the activities of the Union in accordance with the provisions of articles 30 of the Constitutive Act and 7 (g) of the Protocol and that the  suspension shall take effect immediately.  Coterminous to this is the fact that the Nigerian people “have seen the military” and no amount of rhetoric or justification will win the heart and soul of the Nigerian people. Also closely related to this is that the security forces are happy and their needs are being taken care of.
The third is that the control of a large war-chest places the incumbents at an advantage in terms of resources to prosecute electoral warfare and that they have captured the judiciary and whatever happens, they have a large war- chest to prosecute election petitions up to the Supreme Court. Some of the incumbents hire Legal Practitioners that are paid obnoxious fees ranging from two hundred million Naira to one billion Naira only for one election petition. The Lawyers in turn hire consultants for a variety of reasons ranging from those that know the Judges and those who know who know the Judges. This underlines their admonition to those that protest to go to the Court or the Tribunal.
It is in this wise that one views the lamentation of Hon. Justice Niki Tobi (J.S.C) as he then was when he stated thus:
One last word-politics as it is played in Nigeria leaves much to be desired. There is so much acrimony, bitterness and violence. Nigerians play politics as if they are in a battlefield. It is not so. I do not agree that politics is a dirty game. It is a decent game; only some Nigerians made it dirty. The problem in Nigeria is the politics of winner takes all. Another problem is the gain from it. I will suggest that politics should be made less attractive. If that is done, there will be less fight, acrimony and bitterness.
In years back, the fight in politics was within, in the sense that only the players of the game were involved. In more recent times, they have involved the judiciary. Nigerian judges are called all sorts of names by litigants. They are suspected for the slightest action. Parties do not seem to believe that Judges can dispense justice in the light of the law and the law alone. The insults are getting too much. Some of us have always taken the matter as one of occupational hazard. It is gone beyond that and that is very worrying. In the administration of justice, somebody must be trusted. Why not the Judges.
Some of the incumbents also see the law and the Constitution as institutions that can be manipulated and that they can commit electoral offences and nothing will happen.
Misplaced Assumptions
Some of these assumptions are misplaced. The Nigerian people have embraced democracy and democratic practices. They believe that democracy offers them a better chance of having a voice and participating in the governance of their country. They have therefore accepted the fact  that sovereignty belongs to the people through whom governments derive their power and authority. They believe in the rule of law and due process and will readily submit and pledge allegiance to a regime that comes to power through the normal democratic processes.
Furthermore, some of the incumbent office holders do not really care about the health of democracy and democratic practices. They believe that they can navigate any form of regime in power, be it military, authoritarian or democratic. Some of them have also amassed so much money and made substantial investments outside the shores of Nigeria and it does not really matter if their actions and inactions lead to the demise of democracy in Nigeria.
But the truth is that nobody knows the character and dimension of the crisis that may erupt in Nigeria if we continue to take democracy and democratic practices for granted. Nobody knows where he or she may be when a major conflagration erupts. It is also clear from the post election conflicts that have taken place in Nigeria especially after the 2011 elections that we have a reservoir of angry Nigerians that are impatient and may not listen to the niceties of the rule of law and due process when they feel that the electoral process has been deliberately skewed in favor of one candidate or that democracy has lost every meaning to them. The cost to the Nigerian people and nation would definitely be enormous.
Why do they go to any length?
Why do incumbents deploy foul and unfair means to remain in power, win reelection or install a stooge or crony in power? There are three key reasons among others. The first is the fear of prosecution after office. Some of them are enmeshed in high level corruption, abuse of office, assassinations and money laundering and fear that they may head to prison from government house unless they wrap themselves with some form of power or immunity.  The second is the fear of life after power. Some of them are completely disconnected from the people and fear a life of scorn and contempt. The third is the idea of becoming politically irrelevant and playing a second fiddle to those that worshipped and bowed before them keeps them and this keeps them in a permanent state of psychological turmoil.
What is to be done?
The biggest challenge in securing democracy beyond 2015 is the fact that some incumbent office holders assume that we can have democracy without democrats and elections without the electorate.
In developing a framework for the electoral process that secures democracy beyond 2015 we must recognize the fact that “a culture of impunity is embedded in Nigeria’s political, economic and socio-cultural structures and organizations.”  In securing democracy beyond 2015 Nigerians must deal decisively with the culture of impunity. This must be multifaceted and involves establishing constitutional, legal and socio-cultural mechanisms to strengthen the legal and constitutional framework for elections and set the country on the path of the rule of law and due process. To this end, it is important to complete the unfinished business of electoral and constitutional reform through the unbundling of the Independent National Electoral Commission and the creation of structures and institutions that are independent, well resourced and professional. We must be strategic and methodical in putting together the remaining pieces of our electoral and constitutional framework, instead of jumping back to electoral design and amendment the moment the electoral process stumbles.
The National Assembly should further amend the Constitution to establish a Political Parties Registration and Regulatory Commission that will monitor political parties and develop a framework for the regulation of campaign financing and the illicit use of state resources and paraphernalia for purposes of running elections. Coterminous to this is to strengthen the regime of section 87 of the Electoral Act by making it mandatory that the Independent National Electoral Commission must authenticate the results from the Party Primary Elections and the Appeals process of political parties before they can be validly submitted to the Electoral Management Body. This will also involve expunging the proviso to section 31 of the Electoral Act, 2010 (as amended)
We should also amend the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the Electoral Act 2010 (as amended) to provide for the conclusion of all pre- election matters before the conduct of elections. To this end, sections 31-38 and 78-102 of the Electoral Act 2010 should be amended to make it mandatory for pre-election matters filed at the Federal or State High Courts to be heard and determined within 90 days from the date of filing of the action. Appeals arising from pre-election matters should be heard and determined within 60 days from the date of filing the appeal at the Court of Appeal or the Supreme Court. Appeals from judgments in pre-election matters to the Court of Appeal or the Supreme Court should be filed within 21 days from the date the judgment of the lower court

is delivered. So doing will make it impossible for incumbent office holders to keep pre-election matters in Court and they remain in court while they conclude their tenure in office.
We should also “enforce normative, institutional and legal mechanism that will serve as disincentive to election crime, for example reducing the profitability of politics or deterring the politicians from treating politics and governance as organized crime in which theft of public fund, nepotism, disrespect of citizens, abuse of power of law enforcement and security agencies, and blatant disregard for the laws are seen as rights”  . It is in this wise that we must take seriously the establishment of an Electoral Offences Commission to deal with the following issues:
i) Enforcement and administration of the provisions of the Electoral Act.
ii) Investigation of all electoral frauds and related offences.
iii) Coordination, enforcement and prosecution of all electoral offences.
iv) Enforcement of the provisions of the Electoral Act, the constitution of registered political parties and any other Acts or enactments.
v) Adoption of measures to identify, trace and prosecute political thuggery, electoral fraud, political terrorism and other electoral offences.
vi)    Adoption of measures to prevent and eradicate the commission of electoral malpractices.
vii)    Adoption of measures which include but are not limited to coordination, prevention and regulatory actions.
viii)    Introduction and maintenance of investigative and control techniques towards the prevention of electoral malpractices and fraudulent election.
ix)    The facilitation of exchange of scientific and technical information with other democracies on the conduct of joint operations and training geared towards the eradication of electoral malpractices and fraudulent election.
x)    The examination and investigation of all reported cases of electoral offences with the view to identifying electoral officers and staff of the electoral commission, individuals, corporate bodies or groups involved in the commission of electoral offences.
xi)    Collaboration with election observers within and outside Nigeria.
The reluctance by the Government to initiate the Electoral Offences Commission Bill and the fear of its passage by the National Assembly is rooted in the politics and benefits of electoral crime. The incumbents are afraid that they may be the first victims of the law while some of those in the periphery believe that a time may come when they may be the beneficiaries of electoral fraud and the law may come back to haunt them. But the
Nigerian people are determined to get things right. Such a law is therefore germane in cleaning up our electoral process. It is also germane for the law to target executive arms merchants and financiers of electoral violence and ban them from the electoral process for at least 10 years.
Coterminous to this is the establishment of Special Election Tribunals and Mobile Courts to try electoral offences. “Membership of the tribunal should be broad and not limited to lawyers and procedures should be fair but not subject to technicalities that erode substantive justice under the guise of promoting formal or procedural justice’ and rule of evidence should be sensible and should not be designed to undermine democracy by preserving stolen mandates.”
It may sound patronizing to assert that our democracy and political practices are peculiar and do not conform to the normal democratic practices as evidenced in other countries. In other countries, incumbents are careful in the use of incumbency powers because they know the consequences of being caught. In Nigeria, incumbents misuse the power of incumbency because they know that they will not be caught and if they are caught nothing will happen. It is in this wise that we must further interrogate the question whether it is feasible for incumbent office holders to step down from office six months to the date of elections and hand over to an interim administration. Their continued stay in office gives them too much advantage before, during and after election. They use government resources and power to hold the electoral process and the political parties to ransom. They use the same to manipulate and influence the result of elections and use government resources to finance election petitions. Their stepping aside 6 months to election may create a semblance of balance and fairness in the political process.  This is not a new proposition. In the Aggregate Views and Recommendations by the General Public made to the Electoral Reform Committee it was clearly articulated that:
The incumbency factor was a major issue raised during the public hearings particularly with regards to putting in place a level-playing field for all contestants. The following recommendations were made:
i. A single term tenure will reduce the power of incumbency and the cost of conducting elections through a reduction in the frequency of elections and the use of state resources for party activities
ii. It will eliminate the do-or die syndrome.
iii. There should be stringent laws to guard against the use of state funds by government in power to fund the ruling party
iv. Law to restrict incumbents from using state resources to further re-election
v. A proposal for amendment to sections 135 and 180 of the Constitution dealing with the tenure of office of the President/Governor to have a transitional period of at least 6 months after expiration of tenure to allow for an interim President or Governor, appointed by the Chief Justice or Chief Judge of a State to conduct elections to elect a substantive President or Governor.   
We must therefore strengthen our democratic and law enforcement institutions to act ethically and professionally. It is only when such institutions are in place and incumbents are in no doubt that there are consequences for misbehavior that they will retrace their steps.
More fundamentally, civil society groups and organizations must intensify public enlightenment especially in the area of civic and voter education. They must utilize the Freedom of Information Act to demand for information that is hidden in the closet.
Conclusion
The clear and present danger facing the country ahead of the 2015 general elections is the empowering of militant groups and elements, the influx of small arms, the official backing in oil theft, insurgency and the deliberate and contrived creation of an atmosphere of fear and insecurity. This is self evident in the acts and utterances of some incumbents and their cronies suggesting that they will “break the pot” if they perceive that they may not win the 2015 elections. Conversely, there is  the desperation of those that want to be incumbents in 2015 using desperate means and measures to get to power and they are also ready to “break the pot” if they cannot win.
The challenge therefore is for genuine and strategic forces in civil society groups, professional associations, the Labor movement, the student’s movement and civil democratic organizations to recreate themselves and assist in arresting the slide towards anarchy and lawlessness. These groups and genuine patriots cannot afford to be mere onlookers of the electoral process but must design clear means and strategies of monitoring governance processes and holding public office holders accountable for their actions. This must also include ensuring that incumbents and those aspiring to be incumbents develop appropriate political attitudes, that the economy performs in order to enhance the material basis of democracy, and appropriate political institutions are nurtured to sustain fair play and justice. These groups must also design and engage in genuine mandate protection initiatives that protect the sanctity of the vote because “in an election, the heartbeat and the most sensitive document involved is the ballot paper. It is the engine room of the process”  and once stolen, the mandate of the people is stolen.

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

Concluded.