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Of INEC and Complaints of Electoral Irregularities
- Lloyd Okereafor and Chinelo Chinweze

On 14th of April, 2007, Nigerians, determined to usher in a new civilian government, defying rumored fears of violence, and to ensure that the historical process of transition was free and fair, turned out en masse to cast their votes in the governorship and state’ Houses of Assembly Elections. However, complaints of electoral irregularities from various parts of the country, ranging from absence of INEC official at some polling stations, late arrival of electoral materials, non inclusion of candidates’ names and/or their pictures, missing names in the voters’ register, outright rigging, snatching and stuffing of ballot boxes and falsification of results, soon steered calls, both national and international, for the cancellation of the elections in which the ruling Peoples Democratic Party (PDP) enjoyed a landslide victory.

It is noteworthy that 2 days after the elections, the Supreme Court of Nigeria ruled that the INEC does not have powers to disqualify candidates presented by political parties for elections. The judgment may affect the outcome of the elections in those states where INEC excluded some gubernatorial candidates from the ballot, especially in the face of section 145 (1) (d) of the Electoral Act under which an election may be voided on ground of wrongful exclusion of a candidate. This scenario may have been avoided if INEC had acted as a responsible agency and obeyed calls for observance of the rule of law by Access to Justice and other persons. In Anambra state for instance, 2 different courts had ordered INEC to include the names of Chris Ngige and Nicholas Ukachukwu in the ballot. Had INEC obeyed,this would have saved Anambra state as one of the states where there is likely to be a re- run of elections, and consequently, it would have saved the nation much funds, deployed into the voidable governoship elections of Anambra state.

Notwithstanding the statement of the Independent National Electoral Commission (INEC) of its satisfaction with the polls, local and international observers condemned the reported fraud, intimidation and violence that characterized the polls. Citing Anambra, Adamawa, Delta, Edo, Enugu, Kogi, Nasarawa, Ogun, Ondo and Rivers State as some of the states where the results declared could not be said to have reflected the wishes of the people, they called for rejection of the results. In the ensuing melee, the Independent National Electoral Commission has announced a re-run of the gubernatorial elections in Imo state and a bye-election in some local governments in 5 other states namely Anambra, Delta, Edo, Enugu, and Ondo states. Against this background, the question that calls to bear is, what path should the Independent National Electoral Commission (INEC) and the nation tow in order to regain the confidence of the electorate in the continuing electoral process, and that is what this piece seeks to proffer suggestions to.

It is important to emphatically resound the fact that an election is a decision making process whereby citizens choose leaders that will hold forth for them; the process does not provide room for imposing leaders on the electorate. In this regard, it behoves on INEC to critically investigate the varying degrees of allegations of electoral malpractice alleged in states and take decisive actions to remedy the situation. In carrying out the investigation, INEC should be fortified by provisions of section 145(1) (b) and 146 (1) of the Electoral Act. Section 145 (1) (b) provides that an election may be questioned on ground that the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Act. However the saving provision of section 146(1) provides that “an election shall not be liable to be invalidated by reason of non-compliance with the provisions of this Act if it appears to the Election Tribunal or Court that the election was conducted substantially in accordance with the principles of this Act and that the non compliance did not affect substantially the result of the election”. (Emphasis supplied).

It is unarguable that the fundamental principles of the Electoral Act are directed at ensuring free and fair elections. Basically a ‘free’ electoral process is one in which the exercise of electoral rights is done without any interruptive influences like fear, intimidation and such inappropriate considerations that could impair the free exercise of that right, while a ‘fair’ electoral process is one in which the electoral process and its eventual outcome is free from negative manipulations. This also implies that the playing field is reasonably level and accessible to all electors, parties and candidates and includes the involvement of an independent, non-partisan electoral organization to administer the process. Any act done whether calculated or not that substantially offends the fundamental principles or tenets of the Electoral Act constitutes a breach of section 145(1) of the Act and attracts the consequential invalidation of the election.

Section 4 of the Independent National Electoral Commission (Establishment, etc) Act, Cap. 15 LFN 2004 places on INEC the function of organizing, conducting and supervising elections at all levels of government in Nigeria. This duty imposes a correlative function on INEC to ensure that the election is conducted within the fundamental principles of the Act. We concede that whereby, for whatever reasons, an election is adjudged unfree and unfair, INEC has an implied power to nullify such election and organize a bye-election, as it seeks to do in some of the local governments of the earlier named states. This resolve is strengthened by the wordings of section 163 of the Electoral Act, which states thus: “Notwithstanding any other provisions of this Act, any defect or error arising from any actions taken by an official of the Commission in relation to any notice, form or document made or given or other thing whatsoever done by him in pursuance of the provisions of the Constitution or of this Act, or any rules made thereunder remain valid, unless otherwise challenged and declared invalid by a competent Court of Law or Tribunal.”(Emphasis supplied).

In the face of the allegations by the election observers and the calls for the nullification of results across the country, INEC is duty bound to investigate the degrees of substantiality of the irregularities. For instance, reports of some of the egregious instances observed during the elections, such as declaration of PDP gubernatorial candidate as the winner of the election in Delta by INEC headquarters while collation and counting of votes were still going on in the state; cancellation of results of gubernatorial elections in Imo State but nevertheless upheld the results of the State Assembly’s election in spite of the fact that the two elections were held at the same time and place with the same voters; declaration of electoral votes well above the number of registered voters in Anambra state, with a latter adjustment of figures after complaints were made; declaration of results in Ondo state where a senior government official was alleged to have led the hijacking of ballot boxes in the full glare of the public; all warrant investigation and review by INEC.

However while some have called for outright annulment of last saturday’s polls, the afore-cited provisions of the electoral Act favour a selective annulment, which in effect translates to annulment of the results of states with high degrees of irregularity. While we do not have accurate statistics of what states recorded what degrees of electoral irregularities, a starting point would be such states as Anambra, Ondo, Rivers, Adamawa, Delta and Edo States, in line with the reports of election observers. Notwithstanding that INEC has evinced an intention to conduct bye- elections in some local government areas of some of the named states, an outright cancellation of the polls in the states would better assuage the electorate, especially following the conviction of INEC about irregularities there.

The above position is fortified by our view that it would accord more with the provisions of the Act if the entire allegations were investigated and INEC, in its supervisory capacity acts one way or the other. Outright annulment of the polls, apart from its high cost implications for the country, in terms of likely colossal waste of public funds invested in the exercise, would seem to amount to a self- determined vote- of- no- confidence against INEC, and consequently a far- fetched option in the circumstances.

While the rule of substantial compliance as construed by the Supreme Court in Buhari v. Obasanjo (2005) F.W.L.R. (Pt. 273) p.1 requires that the eventual outcome of the numerical ratio (votes) should override any irregularities in the electioneering process, INEC as an administering body is bound to go beyond the figures of votes cast and ensure that complaints of irregularity are investigated and rectified. Also, while the Buhari’s case applies to judicial proceedings, which come before the courts or tribunals, the duties of INEC are more general and subject to the principle of law that where civil and constitutional rights are involved, the strictest compliance to statutory duty must be adhered to. It is submitted that while it may be convenient for the courts to dispense with complaints of irregularity on the premise that the irregularity did not affect the outcome of the results, INEC cannot do same without imposing a waiver on those whose voting rights are in issue. It must be understood that for INEC to determine complaints as the courts would do, will amount to imposing a ‘waiver’ of the voting rights of persons who complain of irregularities. Such imposed waivers are impermissible by law.

The imperative that justifies cancellation in the implicated states is underscored by several factors, chief of which is the need to undo the wide spread and concrete impression that the ballot box is not the sole determinant of electoral victory in Nigeria. The enormity of this bedrock impression is that over 65 percent of eligible Nigerians turn their back on the electoral process. This breadth of apathy invariably renders Nigeria’s democracy a rule of the minority. Correcting this anomaly would require basically the kind of intervention we are calling for, and we urgently ask for a most timely and decisive intervention by INEC in the interest of strengthening democracy in Nigeria.

In the event that INEC refuses to yield to this call, political parties and candidates aggrieved are left with the sole option of seeking redress at the Courts or Electoral Tribunals in view of the stipulations in Part IX of the Electoral Act. The court option, the benefits of which is made obvious in recent times by speedy judicial interventions accords with the overall democratic ideal – an ideal which seeks to ensure a greater participation of a greater number of persons in the democratic process, irrespective of their place and status in life. We therefore urge the recently inaugurated election tribunals empanelled by the CJN, Hon. Justice Legbo Kutigi to ensure speedy determination of electoral disputes. This is because the length of time it takes to determine an electoral dispute is one big factor in evaluating electoral justice in a country, and Nigeria has not really fared well in this regard.