‘We need to amend the electoral act to provide for electronic voting’
Dr. Paul Chibuike Ananaba (SAN) is a solicitor, advocate, draughtman mediator and arbitrator. He has over 27 years of experience in the profession.
He graduated from the then Imo State University, Okigwe in 1990 with (LL.B Hons) and was called to the Nigerian Bar (B.L) in 1991. He later acquired a Master of Laws (LL.M) in Legislative Draughting in 2003 and a Doctor of Philosophy in Laws (Ph.D) from Babcock University, Ilisan Remo in 2016.
Ananaba is a member, governing council and also the Legal Adviser of Babcock University as well as Clifford University Owerrinta, Nigeria. He has served as an adjunct Professor at Adventist University of Africa, Kenya and Legal Adviser for Institute of Industrial Security and Safety of Nigeria.
He is a member and fellow of several professional institutes and associations locally and internationally and is the currently the chairman of the Nigeria Bar Association Section on Public Interest and Development Law (SPIDEL). A public speaker, Ananaba has written several books and articles.
The elections have come and gone. The next phase now is the election petition tribunals. A renowned advocate and litigator, Dr. Paul Ananaba (SAN) in this interview with Assistant Editor, Law & Foreign Affairs, JOSEPH ONYEKWERE examines the issues and concludes that electronic voting is the way to go in 2023 general elections.
The candidate of the People’s Democratic Party (PDP), Atiku Abubakar has approached the tribunal. Curiously, the tribunal ordered that he should inspect Electoral materials but refused forensic examination. This is not the first time forensic examination has been authorized by a tribunal and it helped to determine election petition. Osun State is a classical example. What has changed now?
It is an ongoing matter, which I won’t more or less like to sit on its appeal. Like you noted, that is the ruling of the presidential elections petition tribunal. Remember that members of the tribunal are court of appeal judges. I would ordinarily have felt that a petitioner would have been given unfettered access to all the materials he wants to look at, including forensic evidence. But that is the decision of that tribunal. I believe that it is appealable. It is only left for Atiku’s legal team to decide on what to do in that matter. My worry is the effect it would have on other lower tribunals. It may now be difficult to obtain orders to carry out forensic examinations, inspections and investigation of electoral materials. It is important to state that where there is an allegation of allocation of votes without balloting, ballot accounting may become necessary. So without forensic examination, ballot accounting may become difficult to determine.
Like you rightly pointed out, lower tribunals may take a cue from this. What does that portend to justice administration in terms of election petition?
Justice is defined according to circumstance. I have made the point that I would have thought that parties should be given unfettered access to electoral materials. As it is now, many parties or applicants may have difficulty proving their cases if it is now clear that forensic evidence is not relevant.
When you talk about parties, are you including the defendants?
Why will the defendant be required to do forensic examination when the burden of proof is on the petitioner who has alleged irregularities?
When a petitioner proves, the burden shifts to the respondent. So the initial burden lies with the petitioner. What if the respondent decides to object to votes in a particular unit?
We used the 2010 Electoral Act to conduct the election because the amendment act was not signed into law. In your opinion, is there anything you think not signing the act resulted in?
Sure! The new Electoral Act would have made electronic voting a primary component of the election. Then, we would have had a few of those deaths. We would have had a full blown electronic voting. We would have concerned more on the complaints that would have bothered on electronic fraud. Experts in that field could trace and correct every anomaly in the system. Institute of Chartered Accounts of Nigeria (ICAN) does electronic voting across the country. The Nigerian Bar Association (NBA) does electronic voting. There would have not been the issue of ballot box snatching. It is embarrassing across the globe to hear that we are still in the era of ballot box snatching, lynching of people, burning of ballot papers and all kinds of malpractices. Going forward, I will expect that we would take our national identity card issue seriously so it can culminate in using it for the purposes of e-voting. We should go into a full blown electronic voting by 2023. And I will expect the government to look in the direction of getting experts in Information Communication Technology (ICT), political science and management into the electoral body. There are many outstanding Nigerians, most of them, very young people that could bring what it takes to make electronic process happen in Nigeria. We can start now to carry out the study and undertake a mock elections to test run the process before the main election. Getting our electoral process right may be something to be exported to our neighbouring countries as well as other countries of the world. I look forward to that. I will hate to see a situation where in 2023, we will still be talking about ballot box snatching, ballot box burning, vote-buying and others.
The electoral management body, INEC insisted that the card reader must be used. But it seems more like a matter of policy than that of law?
As long as I know, all that the electoral body is saying about card reader has no meaning. When the INEC chairman said all the electorate must be verified by the card reader, that he will not recognise any election where the card reader is not used, it means that he is ignoring the decisions of the Supreme Court and the Electoral Act. It is unacceptable! Card reader is fine, beautiful and helpful but it doesn’t determine election as we speak.
What is the implication of that to those who want to approach the tribunals to ventilate their grievances where they believe that the card readers were not used?
The Supreme Court had stated very clearly the position of law on the issue. You can see the case of Otti v Ikpeazu and other cases that followed it, you will see where the apex court said the use of card readers cannot over ride the express provisions of law. The use of card reader is a policy. No policy overrides it’s parent act from where the policy flows from.
What do you have to say about militarization of the electoral process in the country?
Where will the army be when we have electronic voting? Even the army will lose interest in the process because they are not experts in ICT. Therefore, there will be no need for militarization of the election process. So, the way to go is to change course. We can’t keep doing the same thing over and over again.
When you propose electronic voting, are you also putting into consideration those in the rural areas, who may not have electricity and the necessary gadgets to participate in the voting process?
We have to start early to experiment with the process with a view to sorting out all the initial drawbacks. Again, the old women and men in the village, do they use mobile phone? Yes they do! Even the ones you consider classical illiterates use mobile phones.
But their phones may not be smart?
Well, we are not going to involve all the features of a phone. We are only going to assist them by coding the electronic voting in their languages. Most of them read their own native languages. They read Arabic, Igbo, Yoruba, Hausa, Efik and so on. When they see their languages, they will know and it is not going to be a long process. It is going to be a short process, just to say, press here to vote A, press there to vote B. By the way, those illiterates you are talking about still recognize party symbols. If they can recognize the symbols in the ballot paper of 90 something parties, they can participate. So, those are the arguments that come up when we don’t want to do the right thing. Since there is going to be a mock voting, we would be correcting all the deficiencies and challenges in the process along the line. Electronic voting doesn’t take time. Multiple people can vote at the same time. And it can be monitored as well.
We have a whole lot of inconclusive elections this time around. Is this in our Electoral Act?
It is in our Electoral Act and the INEC guidelines. The problem is with the definition of what is inconclusive election. There are two definitions which are available as of today, but the dominant one, which INEC has been using, and I think they should not, is when the margin is lower than the registered voters and the card reader and the accreditation show that the number of people that collected PVC is actually what should be used. If you don’t have a PVC, you are not a registered voter again. What should be checked is the margin as against the number of collected PVC and not those on the register because many of them might have died, travelled or relocated. That is why you have 80,000 in your register and 30,000 people voting. So, it is not a true reflection of the records. Therefore, I think that all those would require thorough amendment of the laws so that those would be addressed. When you talk about inconclusiveness of our elections, it breeds a lot of desperation, thuggery, killings, electoral fraud and others. There are deserving cases when there can be a rerun, but not widespread rerun the way we are having it today. There is no polling unit where 80 percent of those on the register voted.
But there is another condition under which INEC declares election inconclusive and that happens when the margin of win is lower than the total number of cancelled votes?
Yes. In that instance, there can be a rerun, but it depends on the nature of the cancellation. A voided vote is a wasted vote. But if there is cancellation, maybe because there was no voting at all and it is very significant, then there should be a rerun. Otherwise, those people would have been disenfranchised and denied their fundamental right to vote, if you did not do a rerun. But if there are voided votes, they are not counted because they are wasted votes.
What does the quantum of voided votes recorded in these elections say about voter education in Nigeria.
On a general note, it shows that many people are not educated enough. It is not only that. In some instances, political opponents do mark or further thumb print on the ballot of their opponents in order to void the votes. In some instances, the ink could spread and the way it is folded could cause a spill over. So, it is actually beyond voter education in some circumstances. It includes, integrity, patriotism and doing the right thing.
Politicians are getting more desperate to win votes such that we now have rising cases of vote-buying. How is the reform you talk about going to take care of that?
Vote-buying is widespread and no political party can really say that they are not engaged in it. It looks like it is the party that buys more and win that celebrates and the party that loses complains. All the parties in Nigeria are allegedly involved in the vote-buying syndrome. And it comes in different forms. Votes are not bought only in polling units. Votes are bought before and during the elections. People share rice, money, dresses, cows, and other petty items to induce people to vote for them. So, anything you do to induce people to vote for you is buying the persons conscience. So, your guess is as good as mine what went on before the elections. Therefore, it is a crime and we should apprehend all those involved in it.
How do we get it resolved?
Elections should become ideological. It is because they are not ideological that you see politicians jumping from one party to the other. It should not be so. Democrats are Democrats while Republicans are Republicans in the US. Elections are done for floating voters who want to vote the political party that offers better. That is the basis of having polls. But that is not what we do here. We guess which party stand the chance of winning and we go with them. At the end of the day, it is either the state or the country end up with one party. But if we had ideological parties, they would be known for what they will do and if you are voting, you will know that party A will give free education, free health and party B believes in paying social benefit. So people in local governments and states go for what they want.
What roles are security agencies supposed to play in election management because we had the Economic and Financial Crime Commission (EFCC), Police and the military highly deployed during the elections to purportedly check vote-buying, thuggery and violence?
I don’t think it is their statutory role. That’s why I believe that we should have electoral offences commission. I support such creation. You can see that by Supreme Court decision in Oladapo in Ondo State, you no longer see elected officials defecting because they will lose their positions. If you have electoral offences commission, they will have adequate security apparatus for the purpose of checking electoral offences, including vote-buying. It is not the regular duty of the armed forces or other paramilitary establishments. And they will train their own security and agents for this particular purpose. I can tell you that even the EFCC or the Army can be in a place and vote-buying will be going on and they may not recognize it. This is because they are not trained for it and it may not be only physical cash that could be passed on.
With the establishment of the new commission, those apprehended can be easily prosecuted. All we have been seeing is threat that offenders would be prosecuted. Starting from the 2015 elections, I have not seen any of the offenders that have been prosecuted. INEC chairman had said that he has no capacity to do that. So, that is the end of everything.
After the commission is set up and it apprehends an offender, under which court would they be prosecuted, the regular courts or a special court would be created for it?
Those are the issue. The electoral offences commission will have election offences tribunal. They cannot fit in into the regular election tribunal because it would breed delay and confuse the system. Those that committed electoral offences will face the tribunal so that the tribunal would be appropriately fashioned for it.
Who will be made up of the judges of the tribunal? Will it be judges of the regular courts or special judges would be trained for that purpose?
That will be the duty of the judiciary service commission and the National Assembly. But I will imagine that they will be similar to judges of election tribunal, but they will hopefully be judges that are coming from the criminal jurisdiction of our courts with further orientation.
There are arguments that allowing National Judicial Council (NJC) to discipline judges is like being a judge in your own case, saying that Nigerians are losing faith in the system, that it was on account of this that the presidency circumvented the NJC in the first place?
I want Nigerians to keep faith. Even when things go wrong, they can be corrected. The case of Justice Onnoghen is still pending. We are still watching and the world is still watching. It has not been finally resolved. We will see how it will be resolved. The constitution is there. At the end, we will know whether we should lose hope or not. But it is too early. The NJC has not made a final pronouncement.
But there is the suspicion that something is cooking behind the scene because the NJC suddenly went silent on a matter that they initially started with a seeming sense of urgency. One would have thought that by now, those issues would have been resolved?
Yes, but don’t forget that elections intervened.
Are the members of the body politicians?
Don’t forget that they are Nigerians too. So, I would say that Nigerians should be patient. NJC is made up of legal practitioners and judges of very great reputation. I believe that they know the right thing to do and they will do it because this will not be the end of the judicial system in the country. They will not do whatever that would set a bad precedent in Nigeria.
A number of senior advocates have come out to present agenda for the reform of the judicial sector as a fallout of the incident. What is your position on this?
It is a welcomed development to have stakeholders in the judicial system bring up such ideas. It doesn’t mean that all those ideas are correct. It means that they should be opened up for further discussions. Which ever way that will promote justice, we will follow. Other groups can also come up. My concern is – why do we have to wait until now? Why didn’t it come before? Sometime I seem to see that we react. We wait until there is a building collapsed before we begin to demolish marked house? Buildings that ought to have since gone down? It shouldn’t happen in the judiciary. So we should identify the issues and correct them before it is too late.
Is there any time that is late in pushing for reform in the justice sector because the CJN crisis triggered the agitation to address judicial integrity, bribery and corruption? How do you juxtapose those with the mode of appointment of judges?
Those are opinions of people. Even in England and US, there are allegations of corruption. Even last year, some judges were dismissed in the US because of corruption. So no place in this world is immune from corruption. What I’m saying is that we should keep on improving on our judicial system and justice delivery. The appointment of judges is getting better. It is stricter now.
Is it stricter than the appointment of SANs?
It is not. For instance in England now, they appoint their judges from the rank of SAN. So, we may be thinking in that direction. The standard of the appointment of QCs is a bit watered down than in Nigeria. We may not go their way completely but that is why I applaud the move to appoint court of appeal and Supreme Court justices from members of the inner bar. It was a very wonderful move. It is unfortunate that nobody has heard anything about it now. The bench shouldn’t be a place to learn. Those who are learning shouldn’t be taken to the bench. It should be for people who are experienced, who can identify justice and dispense it.
You said the mode of appointment is getting better but they don’t make it transparent?
It is getting better now because you are required to present a concrete evidence of your practice such as cases you have done. It is just very close to what is required of those aspiring to be made SANs.
But they still don’t make judicial appointment transparent such that the names of nominees would be made public for scrutiny?
That is because the SAN will be practising in the public but the judge is a bit solemn. Although I know that judges are elected in some countries such as the US, we are not doing that in Nigeria today. And because of the level of our electoral system, I would not want our judges to be subjected to election at this stage.
By saying the SANs will deal with the public, are you suggesting that the judges are not for the public too?
The SANs deal with the public in terms of patronage but for the judges, you have no choice to appear before a judge. If your case is assigned to court X, you will go to that court. The corollary is that that judge should not be deciding based on the fact that the man will not vote for him again. So it is better to leave the judges out for now. When we sort out our electoral system very well, maybe, we will revisit it.
Are you not concerned that the bid to appoint some members of the inner bar to the bench seems to be stalled?
I am concerned because I saw that as a very laudable move that would have helped out a lot. Let me give you a typical example. Some judges who are in the court of appeal for example, where moved from the magistrates court and made high court judges and maybe, not long after, made court of appeal judges. They may not have written a brief in their life time and they are now in the appeal court to take cases that are coming by way of briefs. It may create some gaps and be a challenge for that judge because he will have to learn over time. Some of these cases touch on lives. And there is a reason the appellate courts are made up of three or five judges. It is to bring diversity to bear too. A practitioner, who has practised to become a Senior Advocate of Nigeria, who is now at the bench may know certain things his colleagues at the bar could do. He may understand them better and bring his experience to bear in certain cases.
Some senior lawyers berated the two major political parties during the campaigns for not having anything concrete in their policy documents as it affects the judicial sector. Now that the APC has won, what suggestion, advice and recommendations would you have for the improvement of the sector?
I will suggest that rather than doing things on a party basis, there should be a summit on justice delivery across party and ethnic lines. This is because in the manner in which the case of the CJN is today, any document produced by the ruling party may not enjoy the support of everyone. To review our judicial system and come up with something better, it will be better to involve every stakeholder in Nigeria instead of toeing party lines.
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