Towards free, fair and credible election in February: The roles of INEC

The Independent National Electoral Commission (INEC) owes its existence to the provisions of Section 153 of the Constitution of the Federal Republic of Nigeria 1999. The composition and powers of the commission are as contained in paragraphs 14 and 15 of Part 1 of the Third Schedule to the Constitution. By paragraph 15, the Commission specifically has the power to:

(a) organise, undertake and supervise all elections to the offices of the president and vice president, the governor and deputy governor of a state, and to the membership of the Senate, the House of Representatives and the House of Assembly of each state of the Federation.  (b) register political parties in accordance with the provisions of the constitution and an Act of the National Assembly, (c) monitor the organisation and operation of the political parties, including their finances, (d) arrange for the annual examination and auditing of the funds and accounts of political parties, and publish a report on such examination and audit for public information; (e) arrange and conduct the registration of persons qualified to vote and prepare, maintain and revise the register for the purpose of any election under the constitution; (f) monitor political campaign and provide rules and regulations which shall govern the political parties; (g) ensure that all Electoral Commissioners, Electoral  and Returning Officers take and subscribe the oath of office prescribed by law; (h) delegate any of its powers to any Resident Electoral Commissioner; and (i) carry out such other functions as may be confirmed upon by it by an Act of the National Assembly.

The above stated functions and duties of the commission have been interpreted in several judicial decisions as requiring the Commission to act as an unbiased and non-partisan umpire in the discharge of its duties. However, what is hardly disputed is the fact that the commission is still saddled with a huge responsibility of ensuring transparency in the electoral process starting from registration of political parties, nomination of candidates to the actual holding of elections. However as will be discussed shortly no other aspect of the Commission’s exercise of its functions, with the exception of the actual holding of elections, has attracted much public and legal scrutiny than its roles and powers in relation to the nomination and screening of candidates of political parties. This is very much apparent when it is noted that the commission has found itself embroiled in several disputes relating to candidacy in states such as Ogun, Zamfara and Rivers just to name a few. The matter has often not been helped by conflicting decisions given by courts regarding such disputes. Speaking on the 28th January 2019 at a workshop organised for Judges assigned to serve on Election Petition Tribunals, the chairman of INEC was reported to have stated as follows:

“For our part, there are two major areas of concern. First is the issue of conflicting judgments arising from pre-election and post-election cases. As a firm believer in the rule of law, the Commission always obeys court orders or, where it is considered necessary, appeals them in the interest of justice. “There have been over 1,200 cases involving the Commission since the 2015 General Elections and not in a single case has the Commission disobeyed a court order. However, conflicting judgments, especially by courts of coordinate jurisdiction at the High Court level, are putting the Commission in a very difficult position and creating uncertainty in the process. The Court in one judicial division may order the Commission on a particular course of action only to be contradicted by another court of coordinate jurisdiction from another division or even within the same division on the same subject matter. Conflicting court orders are negatively affecting the consistency, neutrality, and public perception, not only of the Commission, but the Judiciary as well. There is therefore the urgent need to address the issue of conflicting judgments in order to engender certainty in the electoral process.”

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Nomination of candidates

Virtually every politician aspires to occupy public office in one capacity or another. The road to the actualisation of this objective usually begins from participation in party affairs to indication of interest to contest public office on the platform of the party to eventual participation in party primaries.

The conduct of primaries by which candidates are nominated to contest elections on the platform of their parties is regulated by the provisions of Section 87 of the Electoral Act 2010. By the said provisions, a party is required to nominate its candidates by direct or indirect primary. A careful examination of the provisions of Section 87 would reveal that it is designed to promote and strengthen intra party democracy.

One very important provision is to be found in Section 87(4)of the Electoral Act, 2011. By the said provisions, the candidate who scores the highest number of votes at the end of a party’s primaries must be declared the winner of the primary and have his name forwarded to INEC. The Electoral Act, 2006 did not contain any such guarantee. Indeed, previously, the fact that a candidate scored the highest number of votes was not an automatic guarantee that his name would be forwarded to INEC as the candidate of the party. A political party under the provisions of the Electoral Act 2006 enjoyed some measure of discretion as to its eventual choice of candidate. It could in appropriate circumstances decide to send to the commission, the name of another candidate different from that of the candidate that won its primaries. However, once it had forwarded a name, it could no longer substitute the candidate whose name was so forwarded except for cogent and verifiable reasons.

The effect of this is profound. Firstly, it has improved the internal democracy of political parties. For a long time before the change in the law, political parties were least interested in enthroning the best democratic practices in their nomination processes and even generally in all decision making matters affecting the party. This lack of transparency and accountability at the political party level was rightly identified by observers as having shaped the outlook of politician who are eventually elected into office and also adversely affected their inability to perform. One cannot after all be expected to give what he does not have or practice a concept he knows next to nothing about. An elected official who is himself a product of undemocratic practices at the party level will surely not be interested in democratic practices while in office. Secondly, the changes brought about a reduction in the influence of political godfathers who for several years decided just who would get a party’s ticket in elections. While their influence cannot be said to have been completely eroded, the fact that a candidate who wins at the primary must have his name submitted to INEC has brought about more transparency to the whole process and encouraged those who without this statutory guarantee would have considered it a futile exercise to campaign, win a primary only to have the name of another person sent to INEC. On the whole, the change has strengthened and democratised the process of nomination and is a very good step towards having free and fair elections.

To be continued

AARE AFE BABALOLA, OFR, CON, SAN, LL.D