Experts seek truly ‘independent’ electoral umpire

Eminent lawyers, scholars and rights activists gathered in Lagos last week to celebrate one of their own, the late Chief Gani Fawehinmi (SAN). The occasion was the 15th edition of the Gani Fawehinmi Annual Lecture, instituted by the Ikeja Branch of the Nigerian Bar Association (NBA) in memory of the erudite lawyer, LEKE SALAUDEEN reports.

THE 15th edition of the Gani Fawehinmi Annual Lecture was held in Ikeja last week. The event was initiated and sustained by the Nigerian Bar Association (NBA), Ikeja branch, in honour and remembrance of the late legal giant, Chief Gani Fawehinmi. He died on September 5, 2009.

The topic of this year’s lecture, “Securing the Independence of INEC: A Panacea for Free, Fair and Credible Elections in Nigeria”, is very apt, given the fact that the general election is fast approaching. Apart from being a lawyer and human rights activist, the late Fawehinmi made an impact on the political landscape.  He floated a political party, the National Conscience Party (NCP). He contested for presidency on the platform of the party in 2003.

In his welcome address, Chairman, NBA Ikeja Branch, Prince Dele Oloke, stated that we must not forget that the late Fawehinmi assiduously fought for the independence of the national electoral commission in Nigeria and the rights of Nigerians to form a political party of their choice, as against those foisted on the people by the military regimes of Gen. Ibrahim Babangida and the late Gen. Sani Abacha. He said Fawehinmi’s struggle and sacrifice led to the formation of plural political parties in Nigeria, contrary to the wish of the then powers that be.

Oloke believed that if Fawehinmi were to be alive, he would have challenged the refusal of President Muhammadu Buhari to sign the amended Electoral Act proposed by the National Assembly in court. Again, he said, if convinced that Mrs Amina Zakari was in any way related to the President, Fawehinmi would have challenged her appointment and the role assigned to by INEC on the ground that such role would compromise the independence of the electoral body.

His words: “Several Senior Advocates of Nigeria (SAN), senior members of the Bar, Professors of Law and politicians of different persuasions have expressed their displeasure and near frustration about the refusal of the President to sign the amended Electoral Act as proposed by the National Assembly. But, very unfortunate, no one has stepped into the shoes of the late Fawehinmi, by challenging the refusal before a court of competent jurisdiction. By reason of this event, the late erudite lawyer has again made himself unforgettable in the Nigerian political landscape.”

The guest lecturer, Professor Akin Oyebode of the Faculty of Law, University of Lagos (UNILAG), spoke on the role of INEC towards achieving free, fair, credible and transparent elections and what needs to be done to uphold the independence of the electoral umpire.

In his paper entitled, “Securing the Independence of INEC: A Panacea for Free, Fair and Credible Elections in Nigeria”, Oyebode said: “For as long as democracy entails equality of access to political competition, there remains a felt need for an independent body to ensure a level-playing field, fairness and equity among competing rivals. If this was not the case, then the entire exercise becomes a charade and pre-determined game of musical chairs where the winner is, more often than not, predictable. Although in modern times, opinion polls, exit polls and social research tools have made political forecasts less precarious, they are not altogether foolproof.

“This is why the field is thrown open to all and anyone ready, willing and able to stake a claim to political power in consonance with the assumption of free enterprise and tenets of liberal democracy. Hence the role of the enforcer of the constitution, electoral laws, regulations and guidelines is expected to be a rigorous and impartial one such that at the end of the day, it would be clearly manifest to all and sundry that justice had been done.”

The professor of International Law and Jurisprudence added: “While institutions are an important element in a democracy, the independence of mind, moral integrity of the functionaries of the electoral body and non-partisan disposition could well be decisive in ensuring a free, fair and credible electoral process, especially in an emerging democracy such as ours. Accordingly, scrupulous efforts should be made to ensure that only persons of impeccable character and unquestionable moral probity are appointed into the critical office of election managers.”

Oyebode said “the acid test of electoral democracy can truly be said to lie in the sanctity of the laws governing the process and untrammelled fidelity to laws guaranteed by a fearless and decisive umpire who enjoys the confidence of the population.” Without this, he added, “things can very easily descend into chaos, street riots, murder and mayhem, perpetrated through self-help arising from loss of faith and confidence in the system and perceived injustice by those who believe they have been done in and are holding the wrong end of the stick of political and social injustice”.

The Chairman, Planning Committee of the lecture, Mr. Monday Ubani, said there were institutional defects that made it difficult for INEC to be truly independent. The defects, he said, include the appointment of INEC Chairman and funding of the electoral body by the Federal Government.

Ubani said in a situation where the President of the Federal Republic is empowered by the constitution to appoint INEC Chairman and  the same executive arm of government controls its funding, definitely the commission cannot be 100 per cent independent of its employer and financier.

Ubani regretted that President Buhari refused to sign the new electoral act passed by the National Assembly, adding that the act would have made INEC truly independent. He noted that the reason given by the President for withholding his assent was that the election was too near. He said the day Nigeria gets its electoral act right, the country would have leaders that would have the interest of the people at heart.

The immediate past National Vice Chairman of the NBA said the way forward for Nigeria to get it right on electoral matters is to go back to the Justice Muhammed Uwais panel report on electoral reform, because the panel made a comprehensive recommendation that would make INEC an impartial umpire.

For instance, the panel recommended that the position of Chairman of INEC should be advertised. A committee made of up of retired judges and eminent professionals would short list the candidates; interview them and take decision on who among them should be appointed chairman.

He added: “This recommendation, if implemented, would remove the power to appoint from the President and insulate INEC from executive control. The report also recommended that INEC should get its fund direct from Consolidated Account. In this case, INEC would stop going cap in hand to beg for fund from the Executive. I pray that one day, we shall have a government that would have the courage of implementing the Justice Uwais panel report.”

The Resident Electoral Commissioner (REC), Akwa Ibom State, Mr Mike Iginni, is worried by the growing number of registered political parties in the country. He said many of them want to contest at the federal level, despite the fact that they lack the spread and resources to compete favourably with the major political parties. He advised smaller parties to concentrate on winning elections at the local government level, or field candidates for state Houses of Assembly.

Iginni said if they start from local level, the parties will win seats and grow from strength to strength and later contest for seats at the national level. He said after 2019 elections, most of the parties would go underground and resurrect in another election year.

On what needs to be done to uphold the independence of INEC, Oyebode said “it has become necessary for all concerned to bear in mind that INEC is a creature of law and, therefore, should always evince strict compliance with the country’s law and constitution”.

The professor added: “In constituting its membership, the appointing authority should exercise due diligence and ensure compliance with both its constituent law, as well as the constitution in order to obviate the hue and cry as was recently seen regarding the pedigree of one of the National Commissioners. Like Caesar’s wife, all INEC’s functionaries should be above board and if when found to have compromised their status, should be immediately disciplined and, or have their services dispensed with. A situation should not be allowed where there is distrust or mistrust between it and the stakeholders.

“Undoubtedly, INEC is empowered to issue necessary and proper guidelines to facilitate its activities. However, INEC’s power should be exercised with discretion in order not to bring the roof down on anyone. For example, the registration of 91 political parties however well-intentioned is today reminiscent of a case of the medicine being worse than the disease. INEC is well advised to remember the dictum that the road to hell is paved with good intentions, and therefore, in the application of laws, it should not wreak greater injury on the polity.

“In the same vein, INEC should cease and desist from anticipatory implementation of laws. For example, why the use of Smart Card Readers or electronic transmission of election results might appear justifiable on account of their enhancement of the electoral process, it is untenable to do so without an effective legislation thereto.

“Admittedly, the executive arm can influence INEC proceedings by delaying or withholding budget allocations to it. INEC should be able to solicit the assistance of civil society organisations, professional groups and the people generally to bring pressure to bear on the Executive to compel it to do the needful in order not to impede or frustrate INEC activities.”

Justifying the topic of the lecture, Ubani said the committee was guided by the fact “we are holding our general election this year and we were compelled to look towards that direction in the choice of our topic”. He said the committee was aware of the role played by late Gani Fawehinmi in the development of Nigeria’s political space, especially when INEC refused to register some political parties.

Ubani added: “He was the one who pursued the matter in the judiciary to a logical conclusion and got a reprieve that opened the space for other parties and for that singular act most of these ‘Not Too Young to Run’ advocates have found homes in some of them to emerge as presidential candidates. That would not have been possible in an era when two major political parties were the big league players in the country.”

In conclusion, Oyebode said the central position of the electoral umpire in the optimal functioning of the electoral process within a democracy can hardly be over-exaggerated.  He said: “Where and when the independence of the electoral body cannot be taken for granted, one can as well bid goodbye to free, fair, credible and transparent elections.

“However, an unbiased and non-partisan electoral body does not drop from the sky. It has to be created and nurtured by law and driven by men and women of unimpeachable character and the right disposition for it to effectively perform its ascribed role. More important, the independence of the body must be safeguarded and guaranteed by a conscious and vigorous civil society, in a position to defend it from any and all attempts to whittle down its ability to function without let or hindrance.”