INTERVIEW: Let’s Scrap INEC, Jail Officials And Have New Electoral Act — Constitutional Lawyer

In this hard-hitting interview, constitutional lawyer, Festus Ogwuche, provides his assessment of the state of elections and recent electoral adjudications in Nigeria.

Ogwuche said both INEC, the political elite, the judiciary, and the professoriate have collectively failed the Nigerian people through validating sham elections, stressing that judges have been “pandering to the whims and caprices of the elite” to the detriment of democracy in Nigeria. Excerpts…

Why Does It Seem Difficult To Prove Electoral Malpractice In Nigerian Courts?

(In saner climes), elections cannot be declared if it is shown that there were discrepancies or malpractices and criminalities. And of course, some persons would have to be charged to court and prosecuted, and if they are found guilty, they should go to jail.

Within the ambits of the Electoral Act, 2022, some offences are created and in creating those offences, the Act did not exclude the INEC officials. Electoral officials who are found wanting in certain acts of criminality would also be charged.

But we have a strange situation in Nigeria where elections have been marred by discrepancies and criminalities and they (INEC) still go ahead to declare results. And because nobody goes to jail, INEC officials and party agents are gathering more strength in doing whatever they are doing, whether rightly or wrongly, in election conduct.

Now if the ballot is stuffed and you go to court, rather than tackle the issue of the ballot that was stuffed, the court begins to talk about technicalities, about whether the action was brought at the proper time or whether it is a pre-election and post-election matter and at the end of the day, throughout the court’s adjudication of the matter, it never talks about the ballot box stuffing. What do you say about that? That’s the problem because they are not doing the normal thing, for me, the fact of the election and the ballot or votes cast are not even the subject matter of post-electoral adjudication.

So, if that becomes the case, whether anybody can give proper electoral justice (becomes a problem). Because if you look at the entirety of the decisions, they never talked about the elections.

In property adjudication scenarios, what the tribunal would be looking at would be the number of votes. Who got the highest number of votes?

In Malawi, they had a panel, the constitutional court had to order that all the ballots should be brought to the court and they had to count them afresh. That is post-electoral adjudication.

You don’t adjudicate on technicalities, whether a man is wearing powder, or the man is wearing a short dress or whether he came to the court at the appropriate time or whether an issue is an internal or external party affair.

Anything that borders forgery or criminality is something that should come during the adjudication process in the post-election adjudication.

We have to go back to serious electoral reforms. Not just electoral reforms but also judicial reforms because the judiciary is even carried away with wrongs, perhaps even more than INEC itself.

At the end of the day, people stand under the sun and rain to cast their votes and the courts decide who won the election based on technicalities. In most cases, the person who won the election is not the person declared by the courts. In some cases, it is not the persons declared by INEC that are declared by the courts and so the courts are the ones who decide our elections. So, there is no credibility at all in the process if you ask me.

Many Thought INEC Learnt Lessons From The General Elections. What’s Your Take On Its Conduct Of The Imo, Kogi and Bayelsa Off-Cycle Governorship Polls?

When the judicial system would give INEC such a blank cheque, what do you expect? Particularly in a situation where we exist in a corruption-laden ambience.

So What Do You Recommend To Fix The Situation?

What I recommend as far as I’m concerned is rigorous reforms. If it is possible, we discard the current Electoral Act. I also recommend the implementation of Justice Mohammed Uwais’ recommendations on electoral reforms. Those recommendations as far as I’m concerned provide a road map to address the problem.

I am talking about a brand-new Electoral Act under the canopy of the Mohammed Uwais recommendations which I consider as a road map to conducting credible elections in Nigeria.

We cannot continue with this Electoral Act. A lot of loopholes are there which politicians exploit, which incumbent governments and the elites engage in to perpetuate themselves in office.

We are also saying that the current INEC as it is constituted needs to be scrapped. We must have an INEC that can stand the test of time through its independence and autonomy, devoid of interference. An INEC that will stand on its promise and its operations, very independently of outside influence of the executive and Legislative arms of government.

We cannot have an electoral process that will stand the test of time and be free of malpractices if we don’t embark on judicial reforms.

Because the judiciary itself is a very, very big problem in this issue of the conduct of elections. In the whole gamut of our democratic process, you cannot separate them (the judiciary) from the rot that has caused a lot of the problems. Particularly these court decisions that were churned out recently, sometimes you begin to wonder whether it is the same Supreme Court that gave those judgements in the Second Republic

I’m a lawyer but I don’t mind giving some bit of a low mark to the judiciary for a very poor showing, particularly as it regards the February 25 Presidential and National Elections, the March 18 governorship elections and (matters relating to) the off-cycle elections in Kogi, Imo and Bayelsa.

It is a very poor showing and it tells you that the INEC will never be repentant. Look at what they did in Kogi State for instance. The election results were pre-filled before the elections proper. So, how do you explain that to anybody? It tells also that our system is ridden with deep-seated corruption and we have not applied genuine principles of electoral conduct, where people will begin to go to jail (for electoral offences).

And these electoral offences are provided under the law (but) nobody is applying it. Till this moment, there’s been nobody prosecuted by the Office of the Attorney General of the Federation for electoral misconduct, criminality and thuggery. These people are walking freely on the streets.

What do you say when the chairman (INEC chairman) was the person who sat in Abuja, and without looking at what electoral results were coming from the polling units, was there declaring results of the presidential election and he’s still the chairman to date? What lesson does that teach anybody?

So, it’s not that we expect INEC to learn any lesson. It’s simply that the current INEC has to be completely scrapped and some persons who participated in electoral misconduct must go to jail as a lesson to others.

Whether the courts went ahead to decide on such elections as appropriate or not is immaterial. The sections relating to criminality and roguery in elections have to be invoked so that people who commit fraud, forgery and violence in the conduct of elections are brought to book.

Aside From The AGF, Who Else Is To Blame For Non-Prosecution Electoral Offenders?

We are to blame the political elite and the academia. Because professors were there and they knew that election collations were wrong they went ahead to declare results. And I’m sure the academia, the citadels of learning, were brought in to preserve the integrity of the process.

We have the National Universities Commission (NUC), and we have universities where these professors come from. To what point have these institutions tried to at least go after these professors who give a very bad name to that status, that highest point of academic status, that you see them acting like criminals and rogues?

I would say that Nigerian society has gone off the rails in terms of values. Because what you see now in the conduct of elections is just a direct representation of what Nigerians are. In the 70s, you would not dare a thing like that and get away with it. So, the leadership a society gets is what they deserve.

The country’s Constitution itself is totally inadequate to the extent that it does not even derive from the people. When the Constitution or the democratic system came on board in 1999, everybody embraced it even though we knew that we have a Constitution that is wobbly.

Some people accepted it as a manner of just getting the military out of the way and a democratic dispensation. And we expected that a couple of years after that something fundamental should have been done to the Constitution, rather than all these wishy-washy amendments to the Constitution.

If you look at the 1999 Constitution, that should not be the Constitution of a country as dimensional as Nigeria. If we want democracy to thrive and stand the test of time, away from today’s ragtag application of principles, we must have a Constitution that is wholesome and based on the will of the people.

We’ve had some Constitutional conferences and the president would come and determine or determine whether that conference will be given legitimacy or not.

Who is the president in a constitutional democracy? Sovereignty lies with the people and not the president. (Muhammadu) Buhari just came and looked at the conference organised by Jonathan, with all the principal recommendations, and he threw it aside. Do you call that a democracy? It is not.

Aside from that, we’ve learnt lessons from the presidential system of government. Before the presidential system, we practised the parliamentary system. People came from America and recommended the American style of government and we have now seen how expensive it is. They’ve seen how it can allocate power to mad people who begin to treat people as if the world belongs to them.

Any election you conduct within the framework of this constitution cannot be credible.

What’s Your Take On The November 11 Imo Election?

Was there any election in Imo State? People just sat down and started writing results. There hasn’t been any improvement in election conduct in this country since 1999. We even had better elections in the early days of this democratic experience than what we have now. There were no elections. What about Kogi State? Where election results were pre-filled by scrupulous individuals even before the polls commenced.

That’s why I talked about reforms. I also talked about scrapping INEC and throwing it into the dustbin. I also talked about reforms that would require rewriting the Electoral Act because the current Act cannot stand the test of time.

I also talked about the Constitution. We cannot have credible elections under the framework of the current Constitution as it is because it (the constitution) must emanate from the people.

The future of Democracy in Nigeria particularly is so threatened and I have fears that it may not last, and it would be quite unfortunate because people put in so much, invested so much energy, and some even lost their lives for the current emergence of this current democratic dispensation.

We are seeing it going down the drain and nobody is saying anything about it, and the courts are not helping matters.

But the greater blame would be on the courts because a whole lot of these actions that touch on unconstitutionality and criminalities during elections, you trace them directly to judicial failure — the failure of the judiciary to rise up to the occasion as the third arm of government with the power to checkmate the excesses of the political elites. In their desperation, you see judges flouting this sacred responsibility imbued on them by the Constitution and by the divine power. Because they are the ones who should stand in the gap for the people because the judiciary is the last hope of the common man.

But you now have a judiciary that appears somewhat, both at the national and state levels, like an appendage of the executives of the state and the federal governments, pandering to the whims and caprices of the elite.

And I wonder how a judicial system can thrive when you have this kind of public confidence that is so low — minimally low as we have currently in Nigeria.