By Sam Okolie
Electoral contests in Nigeria, ever since the elective principle was inaugurated by the British colonial government, have continued to be characterized by the desperation of politicians, which in turn has seen various forms of criminal acts perpetrated by their supporters and in fact said to be instigated at their behest.
The statistics of death on this account do not include those unreported or those that were premeditated, politically motivated assassinations, arson and other mayhem unleashed on the populace by politicians and their thugs.
The impression one gets is that these acts of violence and mayhem can proceed unchecked and unabated, without the intervention or control of the law enforcement agencies in Nigeria. The question arises why the Nigeria Police Force is seemingly helpless and hapless in the prevention of these criminal activities? Indeed when arrests are made why do suspects appear invincible and beyond the prosecutorial reach of the law enforcement agencies?
Under the Police Act the prosecution possesses undoubted powers to prosecute offenders in violation of our penal legislations before any court in Nigeria appropriately designated for such an exercise.
It is therefore a regrettable matter that the National Assembly has created an un-salutary state of affairs by denying Police the complimentary power to prosecute offenders apprehended by it for committing electoral offences.
The power to prosecute and bring offenders to justice is a necessary adjunct to police powers. Indeed, stakeholders maintain the unassailable position that power to prevent and apprehend criminals without a corresponding power to prosecute is an exercise in futility.
Consequently, when the Electoral Act 2010 provides in section 150 (2) that “Any prosecution under this Act shall be undertaken by legal officers of the Commission or any legal practitioner appointed by it,” it has expressly and openly emasculated the Police in its task of securing electoral peace and harmony.
This section has far-reaching implications; firstly, it removes prosecutions of electoral Offences from the Police and the Federal and States Ministries of Justice and restricts this important exercise to legal officers of INEC or legal practitioners appointed by the commission. The implication is that criminal prosecution will be centralised.
Has INEC got the manpower to prosecute even 10% of electoral offences? By divesting the police of powers to prosecute such summary offences, who will investigate the offences, because, the fall-out of this prosecutorial ban is that the police will lose an interest in investigations. At any rate, it is settled law that the Hon Federal Attorney-General can take over or discontinue any criminal proceedings in the Federation or State. So what is the functionality of this provision?
It seems clear that the provision which seeks to preserve the independence and integrity of elections under the Act by limiting participation in prosecution to INEC staff or lawyers briefed by her, loses sight of clear constitutional provisions which fetter its power to do so. For instance section 214 of the 1999 Constitution which prescribe that there shall be only one police force in Nigeria and the provision of section 174 and 211 which vest powers to prosecute criminal offences on the Attorney-General of States and the Federation.
Secondly, has the Commission the man power to prosecute all offences charged to court in the Federation? The answer is in the negative, prosecution is expensive and rigorous business, and it is also a specialized art. Till date, INEC Legal Department is not equipped to prosecute any offender under the Act as the necessary facilities are not in place. In any event, the Commission has stated on many occasions that it does not possess the wherewithal to carry out such additional functions that will cause distraction to its core duties.
Great care has to be taken to organise and dedicate a battery of lawyers in the INEC legal department to prosecution of cases. The essence of a democracy is to have functional machinery of Government, which in turn will provide safety and stability for her people to express their political rights in any atmosphere devoid of rancour and instability.
In other words, where hoodlums are allowed to operate freely, troubling innocent by-standers, wishing to cast their votes and or exercise their civic rights, without let or hindrance, the credibility of the election and the integrity of those elected through such chaotic situation would have suffered a fatal blow.
Finally by way of recommendation, Government needs to return to the drawing board and fully implement the Hon. Justice Uwais Report on Electoral Reforms which provides for an Electoral Offences Commission and a Tribunal to be its adjudicative arm. This step is imperative for the maintenance of law and order during elections and beyond.
The survival of our model of Presidential Democracy is hinged on the optimal performance of the 3 arms of Government i.e. Executive, Legislature and the Judiciary. The 3 arms are expected to act in check to one another. However it has been observed that the weakest link at the level of State governance is the legislature. It appears that the checks and balance that they are expected to provide is completely absent.
The clearest example is the passing into law legislation to authorise outrageous ‘so-called severance pay package for Governors, Deputy Governors, Commissioners and other motley political office holders’. This is coming at a time when the 85% of the nation’s resources is reportedly being spent on recurrent expenditure at both national and states it is inhuman to take such largesse from Government Treasury just because of a 4 year service.
This kind of conduct is anti-democracy and it is perpetrated because there is no one within the system to call them to book. It is a vicious circle with every aspirant looking forward to climb the political ladder by any means most especially through violence and godfatherism in the hope that ultimately it will be his turn to enjoy such largesse for life. In my humble view, this is not the intendment of democracy. The people from where we copied the system have no equivalent of such brigandage.