No doubt, election petitions are being attended to by the various Election Petition Tribunals. The impunity that was witnessed during the election has continued as the Independent National Electoral Commission (INEC) is trying desperately to justify the rigging of many governorship and legislative elections.
Apart from frustrating the inspection of election materials as ordered by the tribunals, INEC has been filing objections that are designed to frustrate the speedy dispensation of justice. As if that was not enough, INEC has urged the tribunals not to place any probative value on the use of card readers. As there is no plan to prosecute the people who committed serious electoral offences the Civil Society Legislative Advocacy Centre (CSLAC) deserves commendation for reminding the Nigerian people of the urgent need to revisit the orgy of violence that was witnessed during the 2015 general elections.
The penalty for subverting democracy in Africa
In the 1990s, the results of credible elections were annulled in Algeria, Nigeria and some other African countries by dictatorial regimes. The political violence generated by such annulment led to the disruption of the democratic process and the reckless massacre of many people. The perpetrators of such carnage were never brought to justice due to the weak criminal justice system which was put in place by the anti-democratic forces in power. Several complaints were filed by human rights bodies at the African Commission on Human and People Rights in Banjul, Gambia on the mass murder of people. As the findings of the Commission have no binding force the indictment of the killer regimes was regularly ignored. However, the victims of the genocidal acts which took place in Chad under Mr. Hasne Habre secured a warrant for his arrest and trial in Belgium.
The decision of the President Abdoullahi Wade not to extradite Mr. Habre, who is in exile in Senegal, was supported by other African leaders. Although the said warrant of arrest was issued under the doctrine of universal jurisdiction which operates in some countries European countries, Mr. Habre’s trial for the massacre of over 2000 Chadians has since commenced in Dakar. However, the ratification of the Rome Statute by several African states signaled the end of impunity in respect to genocidal acts and crimes against humanity. Under the Rome Statute the trial of President Laurent Gbagbo for crimes against humanity arising from post election violence in Cote D’ivore is due to commence soon at the International Criminal Court in the Hague.
In 2008, the failure of the electoral body to announce the results of the presidential election held in Kenya led to the brutal killing of over a thousand people and the destruction of several properties. Mr. Kofi Anan, a former Secretary-General of the United Nations was invited by the government to conduct an inquiry into the political violence. Based on the report of the inquiry charges of crimes against humanity were filed against Messrs Uhuru Kenyatta and William Ruto at the International Criminal Court (ICC). Notwithstanding the election of both suspects as President and Vice President of Kenya in the 2013 general election while the case was pending the charges were not discontinued.
Instead of drawing the necessary lessons from the case, African leaders threatened to withdraw the ratification of the Statute of Rome if the trial of the Kenyan leaders was not terminated by the Special Prosecutor of the ICC. Although the threat was ignored the case has been struck out for want of diligent prosecution. In a bid to stop the trial of African leaders at the Hague the African Union resolved to expand the mandate of the African Court on Human Rights sitting in Arusha, Tanzania to deal with allegations of genocide and crimes against humanity committed in any African country. In spite of the criminal jurisdiction conferred on the African Court the forthcoming trial of President Laurent Gbagbo at the ICC has contributed to peaceful transfer of power in the several African countries including Nigeria.
Peace Accord and Electoral Violence
Shortly before the 2015 general elections, Mr. Kofi Anan and Chief Emeka Anyaoku, a former secretary-general of the Commonwealth, jointly presided over the signing of a Non-Violence Accord by the presidential candidates of the registered political parties. At the well celebrated ceremony which held in Abuja at the instance of the National Peace Committee the candidates of the two leading political parties embraced each other. While the media and several people were excited with the development I expressed the view that the so called peace accord would not stem the tide of political violence in the country due to the violent nature of the electoral system coupled with official impunity. As rightly observed by the National Human Rights Commission, “signing a peace pact is easy, the more difficult part is to ensure that the political office seekers and their supporters work within the rules of engagement.”
Notwithstanding the peaceful transfer of power from the ruling party to the opposition party the country recorded a reign of terror by armed thugs who engaged in the bombing and burning of party secretariats, the destruction of vehicles belonging to political parties, the harassment of political opponents , the extrajudicial killing and brutal attacks of innocent people at party congresses and primary elections, the unprovoked assault on judges etc. Top political leaders made inciting statements. A governor published a death wish advert capable of causing ethno-religious riots. Another governor attended a meeting where ex-militants threatened to declare a war on the Republic if the particular candidate backed by them was not re-elected. In Lagos, scores of well armed operatives of an ethnic militia who were accompanied by the police staged a street protest. A state governor accused a minister of paying armed thugs to stone President Jonathan during a political rally in Bauchi.
The aforementioned cases of electoral malfeasance were never taken up by the law enforcement agencies. Indeed, the security agencies did not hide their partisan position during the season of anomie. In particular, the former national security adviser and the service chiefs instigated the INEC to postpone the general elections by six weeks. Under the pretext of maintaining law and order the state security service endorsed the wearing of masks by armed thugs at campaign rallies. Indeed, there were politically motivated killings traceable to security personnel. With such official impunity the leading political parties engaged in the uncontrolled contravention of the electoral law and the penal code. The National Human Rights Commission disclosed that not less than 100 people were killed during the general elections. So far, no suspect has been prosecuted for the reckless murder of the unarmed citizens.
Official impunity and electoral
In 2007, President Umoru Yaradua admitted that the election which brought him to power was flawed. In a bid to sanitize the electoral system he set up the Mohammadu Uwais Electoral Committee . Among other recommendations the Committee called for the establishment of an Electoral Offences Tribunal. The Yaradua Administration rejected the recommendation without any justification. However, following the political violence which greeted the announcement of the results of the presidential election in some states in the North and Akwa Ibom in April 2011, President Goodluck Jonathan set up the Ahmed Lemu Panel to investigate the crisis. From the detailed report of the Panel, 943 people were killed while 838 others were injured. While the Federal Government has paid over N10 billion as reparation to the victims of the riots, the 626 suspects who were arrested in connection with arson, culpable homicide and other grave offences perpetrated during the civil disturbances have been left off the hook on account of official impunity that has become the order of the day under the current political dispensation. Convinced that electoral offenders ought to be prosecuted in order to stop electoral violence the Panel equally made a strong case for the setting up of “an autonomous and constitutionally recognized electoral Offences Tribunal, but which may be an ad hoc body as it may not have much to do in between election periods.” In accepting the recommendation of the Federal Government undertook to take all necessary actions to establish the Tribunal. Although the recommendation was adopted in August 2012 , the Tribunal is yet to be set up. Instead of signing a non-violence accord President Goodluck Jonathan ought to have instituted the Electoral Offences Tribunal. That would have put an end to the official endorsement of politically motivated violence in the country.
Since ours is a country which claims to operate under the Rule of Law it is inexplicable that the suspects involved in sabotaging the electoral process have not been charged to any criminal court. The crisis of impunity in the land has been compounded by the partisan involvement of the authorities of the police, the armed forces and other security agencies in the political process. Although there are adequate and elaborate provisions in the Electoral Act, 2010 as amended and the penal statutes to deal with political violence and electoral malfeasance the managers of the neo-colonial state lack the political will to bring electoral offenders to book. In a number of decided cases, the courts have held that candidates sponsored by political parties cannot be held vicariously liable for politically motivated violence and electoral malpractice carried out on their behalf unless they can be directly linked with instigating or directing their supporters to engage in such criminality. Indeed, political leaders usually dissociate themselves from acts of violence by condemning the perpetrators. In many cases, attorneys-general are directed to file nolle prosequi to stop the prosecution of suspects who belong to the ruling parties. Hence, the cases of the hundreds of suspects charged to court by the Police for electoral offences committed during the 2003, 2007 and 2011 general elections were abruptly terminated in all the states of the federation.
It is submitted that the withdrawal of cases of electoral violence is illegal as it is subversive of democracy. It ought to be pointed out that even executive immunity does not cover election petitions and electoral offences! In Turaki v. Dalhaltu(2003) 38 WRN 54 at 168 Oguntade JCA (as he then was) held that “If a Governor were to be considered immune from court proceedings, that would create the position where a sitting Governor would be able to flout election laws and regulations to the detriment of other persons contesting with him. This will make a nonsense of the election process and be against the spirit of our national Constitution which in its tenor provides for a free and fair election.”
As President Buhari has pledged to bring the perpetrators of electoral violence to book the federal government should direct the National Human Rights Commission and the Nigeria Police Force to collaborate with the Independent National Electoral Commission (INEC) to prosecute all electoral offenders. In view of the limited capacity of the INEC to discharge the onerous duty conferred on it by section 150 of the Electoral Act, the Nigerian Bar Association (NBA) should assist in the prosecution of electoral offenders throughout the country. The influential members of the National Peace Committee may wish to join the campaign to end impunity in the country. Unless electoral offenders are punished as envisaged by the Electoral Act and the Constitution the subversion of the democratic process will continue unabated.
Finally, I wish to call on the federal government to constitute the INEC without any further delay. The many vacancies in the INEC should be filled with independent minded Nigerians of unimpeachable integrity through a transparent process. Once reconstituted the INEC should proceed to ensure that all citizens of voting age are registered and issued with permanent voters cards on a continuous basis while the use of card readers is perfected for future elections. The National Assembly is called upon to amend the Electoral Act to permit electronic voting and the use of permanent voters cards and card readers. Henceforth, the INEC should bear the legal responsibility of proving that elections have been properly conducted in substantial compliance with the Electoral Act.