Nigeria’s Electoral Jurisprudence Is ‘One Of The Most Backward In The World’ – Falana SAN

In this exclusive interview with Channels Television’s Ladi
Akeredolu-Ale, Senior Advocate of Nigeria and human rights lawyer
Femi Falana, talks about major issues arising from Nigeria’s
general election.

From the menace of ballot snatching, through the role of the
military in the electoral process and the number of political
parties in the country, the debate over electronic voting and more,
Mr Falana explains what should be and what should not be.
Excerpts.

What is your general impression about what has happened
in 2019 with the general elections; what has been your impression
about the process?

Well, you know there are many actors and many actors are
involved in the process. At the level of the political parties, the
use of thugs across board, the attempt to derail and manipulate the
electoral process, the illegal deployment of troops, as well as
bombing of INEC offices, destruction of election materials,
snatching of ballot boxes and general terrorisation of voters… we
thought we had gone past this level.

For INEC, apart from the postponement of the presidential
elections, which was avoidable if we were more organised and if
election materials are printed in Nigeria – shamefully, we either
had to go to South Africa or Belgium to print the materials that’s
why we are in this kind of embarrassing situation – I think INEC
discharged its statutory duties to a large extent commendably, but
there were saboteurs, electoral officers that were compromised.

At the end of the day, INEC has been able to operate
independently and, happily, the two leading parties have been
accusing INEC of bias either in Rivers or Bauchi or whatever, so I
think that’s okay for INEC.

Unlike in the past when election results were taken to Abuja
when the local situation resisted rigging, and that was the
practice for 16 years under the PDP, now, with the innovation of
technological methodology in conducting elections, it is no longer
possible to go to Abuja to announce results of elections. Results
are now announced at the unit level. We still have problems in a
few areas where the collation was hijacked, but generally, what
happened in 2019 was some improvement, except that we are too
forgetful.

What bothers me as a Nigerian is the fact that the political
leaders and some of my colleagues in the human rights community who
were pressuring President Jonathan to deploy troops for the 2015
elections, now believe it is illegal to deploy troops for
elections. Those who engaged in ballot snatching, now pontificate
to some of us on how not to rig elections. They now come around to
teach us about the beauty of democracy. Those of us who were asking
INEC to conduct a do or die election, are now the heroes of
democracy, the teachers of democracy. But the Nigerian people are
the victims of electoral manipulation, of electoral violence.
Attempts can be made but Nigerians have refused to be provoked into
a major catastrophe. In some countries where the degree of
provocation was not as serious, people have gone to wars. People
have fought wars in defence of their franchise so the Nigerian
electorate have tried not to be provoked but we could have done
much better.

I understand the desperation in accessing power in Nigeria and,
particularly in a bourgeoisie environment, there isn’t anything so
strange in what we have witnessed. Where the law has not been
allowed to deal with thuggery, violence, (and) ballot snatching, we
couldn’t afford anything better.

Nobody is in jail for engaging in the manipulation of the
electoral process in 2015, nobody has been jailed in any of the
states where local government elections were rigged and, by the
way, the state electoral bodies in majority of the states conduct
the worst elections in Africa. It is so bad now that opposition
parties no longer waste their funds and resources on local
government elections in Nigeria.

So, we are talking about general elections. The 2019 general
elections with all the shortcomings, for me, is an improvement in
many areas on the part of INEC and the electorates. Where we have
continued to have problems, to be honest with you, is the
desperation on the path of the political class to hold on to power
so tenaciously, most of the time, illegally.

Now we have 91 political parties and when I last spoke
to the electoral body’s authorities, they did point out that there
are more than 100 associations just waiting for the elections to
end to be registered. Do you think we’ve gone from too little to
too many?

There is no way you are going to constrict the political space
particularly to two political parties that are neither ideological
nor principled. Hence you could be in one party in the morning,
change to another one in the afternoon and before you go to bed,
return to your original base so it was very necessary. And I would
say, with profound respect and having regards to the fact that we
are talking of a population of about 200 million people, having a
hundred political parties or 200 is not the problem. The problem is
the content of the manifesto and programmes of those parties. Are
they parties that the Nigerian people can vest their hope in? Are
they parties that can guarantee the future of your children and
mine? Are they parties that can turn our poverty to prosperity?

If you just set up political parties to endorse other candidates
and collect money, or you turn it to family affairs, there are
problems. But in terms of the number, if you go round the whole
world, we do not have any political parties here, it is the quality
of the parties that should bother us.

There may be a political party that will say, ‘Sorry, we just
want to defend the environment’; Green parties in Europe. There are
parties that will say, ‘We want to promote education in Nigeria’.
Others will say, ‘We want to ensure that every Nigerian has access
to basic health facilities. And political parties could simply say,
‘Our interest is to ensure that the economy of our country is
dominated by Nigerians to promote prosperity’.

When you have such political parties that are addressing issues,
the number becomes irrelevant. And when you get to that stage when
parties transcend the individuality of the founders, or the big
guys there or godfathers as we call them, then they are likely to
say, ‘Since our programmes and manifestos are similar, why don’t we
work together?’ I am not talking about adoption on the eve of
elections. So, it is a process where parties will merge on the
basis of similarity of ideologies or philosophy.

I mean the National Assembly has amended the Constitution,
through alteration four of the Constitution, to say if you fail to
win 25 percent of the votes cast in a presidential election or a
governorship election or you fail to produce a legislator thou
shall be banned. That won’t advance the cause of democracy in the
country. And while you have brought out that law, you haven’t
presented other political associations from registering as
political parties. So, we still have to go back to the drawing
table. What manner of political parties do we expect? What type of
political parties will really expand the democratic space, advance
democracy in our country (and) defend popular interest? That is the
way I look at it.

The elections are now over and attention will now shift
to the temple of justice because a lot of people will be heading in
that direction. Do you think the judiciary itself, having
been under a great deal of scrutiny, … is actually ready to
attend to this issues that will come up before it in a way that
people can expect that they were better served by going to the
judiciary than heading to the streets?

Your question is loaded. I will go about it this way; our courts
are already dealing with disputes arising from the electoral
process. Over 600 cases have been filed challenging the lack of
internal democracy in the parties whereby godfathers impose
candidates on political parties and the electorates. Those cases
are in court and our courts are dealing with them, although by now
quite a number of them would have been overtaken by events. With
respect to the tribunals, again, our courts are going to dispense
justice within the limited ambits of our electoral jurisprudence,
which is one of the most backward in the world.

Will those tribunals not be challenged since they were
set up by the Acting Chief Justice?

No. Again, that is not correct. The members of the election
petitions tribunal are constituted by the President of the Court of
Appeal. The Chief Justice or the Acting Chief Justice merely
performs the oath of office on them. No more, no less.

You talked about the backwardness of this
system…

I can tell you, in the majority of African countries, there are
Constitutional Courts to deal with election disputes and those
matters are dealt with speedily – 14 days, 21 days. In our own
country, we used to have a limitless period; sometimes up to four
years. By the time we are having another election, some of the
election petitions are still in court. That is number one. Number
two, unlike in the past whereby election petition tribunals and
judges trying disputes arising from elections will recommend the
trial or the discipline of officers who engage in electoral
malpractice, these days, our courts simply behave like Pontius
Pilate.

Furthermore, we have imported very reactionary doctrines into
our electoral jurisprudence such as ‘prove beyond reasonable
doubt’. ‘You are saying that the election has not been properly
conducted and these allegations are said to be criminal in nature,
so you must prove beyond reasonable doubt; not on the balance of
probability – who won the election, who lost the election’. They
ask you to come and prove it like a criminal offence.

Furthermore, you are not just going to allege failure or refusal
on the part of the electoral body to conduct elections in
accordance to the electoral law, the onus is on you to show that
non-compliance with the law has materially affected you. Apart from
those who contested the elections, every Nigerian including
thousands that may have been disenfranchised lack the locus standi
to challenge that election. You can’t say, ‘Oh, I wasn’t allowed to
vote; I am challenging that election or you must pay me
compensation’. They say, ‘Sorry, you have no locus standi to
challenge the election.

Furthermore, when you allege that figures have been inflated,
you have to bring the actual figure and what has been inflated.

So, whichever way you look at it, there are insurmountable legal
hurdles for petitioners. I know colleagues, very respected
colleagues who will never handle cases for the petitioner. They
will rather handle (cases) for the respondent so that they just go
to court and raise technical objections to the petition. We have
cases where the courts have held that ‘Yes, you have alleged that
the elections were manipulated, violence took place. You have to
prove how such violence, how such manipulation has affected the
election’. And our courts always end up with the theory of
substantial compliance; that, ‘when you look at the totality of the
election, oh, (of) 120,000 polling units, you are only challenging,
maybe, elections in about 500 or 1,000 units, that cannot
materially affect the result of the election’. These are the
problems with our electoral jurisprudence.

Unfortunately, for 16 years under the PDP government, the
democratic forces in Nigeria, the progressive forces in Nigeria,
the human rights community and other stakeholders, tried to impress
it on the government to change the electoral jurisprudence to
embark on serious fundamental electoral reforms. Those pleas were
ignored.

We are also in that era now, where the ruling party has also
refused to embark on genuine electoral reforms. And of course, if
for any reason, the ruling party is defeated in an election in the
future, you will have the same allegations raised by the PDP now
(being raised) by the APC then, but, hopefully, some new democratic
forces should have taken over the process. We can’t go on like
this, indefinitely. No nation can continue to toy with its destiny
as we are doing.

Of course, the Uwais Panel made a profound recommendation; they
were ignored. President Jonathan set up the post-election violence
(panel) in 2011. Again, very serious recommendations were made, and
all the recommendations were ignored. President Buhari set up the
Ken Nnamani committee which reviewed all the previous
recommendations and added new ones to reflect the current
situation. Again, the report has not been debated at all. So, it is
not about looking for new ideas, those recommendations are on the
ground, gathering dust in the archives of the government. Not to
talk of several judgments of our court, that has indicted the
electoral process and called for reforms. So what has happened over
the years has been an attempt by INEC to update, take a few of the
recommendations, turn them into guidelines, but that is not
sufficient, and that is why we are in a mess.

Can you talk about the militarisation
of the process, the involvement of military or people in
military uniforms?

The denial was an afterthought and it was contradictory. Before
the denial by the Chief of Army Staff, the army authorities had set
up a panel to investigate the role of its own men in the election
in Rivers State, where allegations were made. If you now say, these
guys that were being investigated are not members of the armed
forces, there is a problem there. In 2015, the tragedy of it all is
that the Chief of Army Staff, General (Tukur) Yusuf Buratai, set up
a panel of enquiry, headed by Major General (Adeniyi) Oyebade, to
investigate the militarisation of the Ekiti governorship elections
in 2014, where the candidate of the PDP, Ayodele Fayose, was
alleged to have been commanding a general in the army. All the
military personnel indicted in that probe, were flushed out by the
Nigerian Army.

There are not less than five judgments of our courts, which have
declared that the armed forces have no role in our elections.
Curiously, these cases were filed, either by the candidate of the
APC, Muhammadu Buhari, or individual members of the APC. One of the
cases was filed in Lagos by Femi Gbajabiamila of the APC, where the
Federal High Court held that it is illegal to deploy troops in the
conduct of the election. In fact, in one of the Buhari/Obasanjo
cases, a former president of the court of appeal, Honourable
Justice Ayo Salami said; our political class may be intolerant but
have eased out the military from our politics, we should try to
keep them at bay, they shouldn’t get involved in our electoral
process.

The major pronouncement of our courts influenced the NASS to
amend the Electoral Act on March 27, 2015, to the effect that the
INEC shall assume the power of deploying the security forces during
elections in Nigeria, provided that the armed forces shall be
restricted to the transportation and delivery of election materials
and protection of electoral officers. There is no law that allows
any member of the armed forces to take command or guard a collation
centre; it is not part of our law. It is contentious. But
militarisation does not end with armed soldiers. When you also use
police and thugs to terrorise voters, you are also militarising the
electoral process and armed thugs commit offences during our
elections, but they are all protected by godfathers in the
political party.

Why was there so much brouhaha when Buhari asked
security forces to deal ruthlessly with ballot box
snatchers?

I think it was the way the president spoke if it is about
invoking the law or saying that the full weight of the law would
descend heavily on electoral offenders or ballot box snatchers;
there shouldn’t have been any problem, but where it was said that …
those who snatch ballot boxes may lose their lives, which was a
presidential license for extra-judicial killings by our overzealous
security forces. Nobody criticised the intent to deal with ballot
box snatchers and other electoral offenders. The law is very clear
on it; there are provisions of law to deal with all categories of
all electoral offenders but our problem is the impunity and the
fact that those who commit these offences are granted immunity by
the government. I do hope this time around, since the electoral
offences tribunal has not been allowed to be created, the INEC will
invoke its power under section 150 of the electoral act to
prosecute all the electoral offenders arrested by the police and
other security forces.

During the process of the election, a lot of people got
worried, and a lot of people are usually worried, when results take
so long in coming out but as the INEC Chairman told me, the legal
framework that currently guides the conduct and collation exercise
specifically stipulates that it be manual and therefore for any
change to occur, there needs to be an amendment to the law. But
then, so many people have mentioned the issue of electronic voting
and others have also urged caution on the issue of electronic
voting. Where do you stand on the issue?

Well, again let me react to the position of INEC on manual
collation and compilation of result, I do not agree (with it). Just
like when the Supreme Court held that the use of card readers was
illegal. How could they believe that, to say that using a
technological device to perform a duty is illegal? I can’t
understand it and that was why I reacted to the judgment by
bringing out the provision of the law. Section 52 of the Electoral
Act as amended in 2015 to the effect that INEC has been empowered
to use any device to adopt any measure to conduct a credible
election in Nigeria and that provision was amending the provision
that had banned the use of any form of electronic system in our
election. So it was replaced.

With that amendment, we can’t go back to the past. So that is
the law today. Even if you want to have electronic voting now, it
is covered under the law. But I have my fears and this I have
expressed; as long as you have the culture of impunity that has
become the order of the day in our country, no system will work. We
saw it in Kenya where the system was hacked into and that is what
is going on in the US. America has been investigating their own
electoral manipulation since 2016.

Here, two leading professional bodies, ICAN and the NBA, tried
to introduce e-voting. Both of the decisions have ended up in court
where the leaders have been accused of sitting down in the
secretariat to manipulate results using emails to generate results
for chosen candidates.

Based on our experiences, we need to guide against the hijacking
of the machines if you want to introduce electronic voting. Again,
we need to educate our people. And that is possible. In the space
of four years, we can wipe out illiteracy in this country if the
political will is there. But you are not going to succeed in
introducing electronic voting if the culture of the manipulating
the electoral process continues. Some people will just hijack the
machine as you have seen in the case of the card readers. They will
demobilise the card readers and there is nothing you can do about
that.

Roadmap 2019 airs at 9pm on Mondays… only on Channels TV.

Culled from channelstv.com