Yakubu: No successful 2019 election without constitutional amendment

Chairman of Independent National Electoral Commission (INEC) Professor Mahmud Yakubu, in a recent visit to RUTAM HOUSE, the headquarters of The Guardian Newspapers Limited; told the editorial team what his commission has done and plans to do, including how to make the 2019 election credible, free and fair.

• Nobody Can Accuse INEC Of Breaching Electoral Act, Guidelines
• INEC Wont Press Panic Button Over Inconclusive Polls

My Background:
My name is Mahmud Yakubu, I am the son of a head master from Bauchi State. I attended the village teachers college, a rural school in Bauchi, the University of Sokoto (now Usman Dan Fodio University) from there I went to Cambridge and later got my Ph.D at Oxford. I returned to Nigeria to teach at the University of Jos for seven years and later transferred service to the Nigeria Defence Academy (NDA), where I have been teaching for over twenty years now. I was on loan by the academy to the Federal Ministry of Education for the Education Sector Reform under Dr. Oby Ezekwesili and later served as Executive Secretary of TETFUND (Tertiary Education Trust Fund); I served as one of the six principal officers that managed the last National Conference under the chairmanship Justice Legbo Kutigi and Prof. Bolaji Akinyemi, until I was called to be the Chief Clerk of INEC.

Mission In INEC
Let me start by telling you that we have come to actually consolidate on the gains of the past, not to begin a new experimentation. If there is anything that works, the onus is on us to make sure that we consolidate and make it better. It is brick by brick that you build institutions and a nation. But the idea that a new chairman will come and jettison what had been done and start afresh, somebody else will come and jettison what you have done is not helpful. That is how we have perpetually experimented with Nigeria. If you look at the way other nations and institutions have been built, it is brick by brick and over time.

As a student of history, after observing how they have adapted the school to modern internet facilities, I once asked one of my lecturers at Cambridge, why don’t you change the ancient staircase? He said, no, “we want to maintain our history as an institution.” So we have seen how institutions have been built over time; not somebody coming in to jettison what was done yesterday, so that he could start something else. So we are for consolidation, we are not going to throw away the baby with the bath water. We are not going to say that we are going to do something different, only to end up with what had been jettisoned. The only thing you need to do is to build on it. We want to deepen the use of technology in our elections.

Technology has saved us a lot, but there is a lot we need to do. Certainly, the introduction of the smart card reader has changed a lot of things about our elections. We are not there yet, but I think with some consolidation, we would get there. When one of the foreign ambassadors visited, I told him that I look forward to a situation where INEC conducts an election and by midnight all the results are announced. I have observed two general elections in Great Britain. By the time polling closes, you begin to see projections; exit polls and you begin to see real results. By early morning you know who the winner is. And I also told the ambassador and the UK High Commissioner, that I would like a situation where INEC will conduct elections and release results regardless of the name of the chairman of the commission.

In our own case, on the eve of an election you may be forgiven to think that the INEC chairman is the president of the country, everything revolves around one person. I never heard the name of the chairman of the electoral commission in the UK in the two elections I observed. So we build institutions. And these institutions help to build the nation, not something that revolves around individuals and personalities.

We are committed that every ballot in this country must count. And every polling unit; because that is the most important unit in an election, must also count. And that leads me to one of the major issues of the moment. I want to talk about inconclusive elections, because it is related to every ballot and every unit counting. We have acquired this unwanted name, not a reputation yet; as a commission that has conducted inconclusive elections. And in a forum like this, I always like to start by defining what an inconclusive election is.

An inconclusive election is one in which a winner has not emerged at the first ballot. So you go and rerun the election. Is this envisaged under our laws? Yes. Section 36 of the Electoral Act is very clear: where there is threat of violence, actual outbreak of violence or natural disaster. You should suspend the election and appoint another day to conduct the election. So the section made it clear, not just an outbreak of violence, but even a threat of it.  Secondly section 53 is very clear. Where there is over voting in a particular polling unit or polling units and the outcome is likely to affect the overall result or outcome of the election, INEC is empowered by the law to declare the result null and void and appoint another day to conduct the election. So in other words, there is nothing about inconclusive elections that has done violence to our laws. And thank God that in all the discussions heard and the commentaries that are made, nobody has accused the commission of operating outside the provisions of Electoral Act and our guidelines. So this is a source of comfort for us. We are committed that every polling unity, every ballot must count.

But something has happened to our elections that we have not paid adequate attention to. For a very long time in this country we have agitated for two strong political parties so that you don’t have one big and many small parties and the elections ending in landslide. It is even predictable who is going to win. The military tried it by fiat to decree two political parties, the NRC and the SDP. But it never worked. But by God’s grace, we now have two strong political parties through evolution, rather than imposition. So something has happened to our democracy. And these two strong parties almost in all cases, field very strong candidates, making the elections very competitive. Kogi State governorship election was a contest between two political parties and two strong candidates, a former governor and an incumbent. Bayelsa: It was a contest between two strong political parties, a governor and a former governor. Rivers: two strong political parties a former governor and an incumbent, even though they were not candidates in the election.

One of our elections we declared inconclusive in Kano, Minjibr constituency, which we completed three weeks ago, was also declared inconclusive, because of the role of a former governor, Kwankwaso and an incumbent, Ganduje. So this is where we are.

Secondly, something has happened to our elections. The elections have certainly become better. I am not saying we are there yet, but the elections are better, because votes are now counting. Gone are the days when elections are declared by landslide and gone are the days when fantastic figures are posted in the margin of lead and in relation to the runner up. In one of the states in the election before the last general election, one of the governorship candidates won the election by a total of 400, 000 votes out of a total number of a little over 600,000 registered voters. When we conducted the first round of election, the marginal lead shrank to 33,000 over 400, 000. We had to conduct the rerun election; the person still won, the incumbent, by a little over 40, 000 votes, ten percent of the margin of win in his first time. So elections have become better.

One of the indices of how our elections have become competitive and better is that if you take the presidential election result, what is the difference between the candidate that was declared winner and the runner up? 2.5 million votes! This is the closest margin since 1999. The election was almost inconclusive, but it was conclusive. So there is a new reality that we have to adjust to. And as I keep saying at different for a, this commission will not press the panic button simply because the commission is holding inconclusive elections. That is not leadership that is not courage. We should be courageous doing the right thing. This INEC will never declare any election conclusive for its own sake. Votes must count and votes must be counted until we internalize the fact that there is only one way of conducting elections and declaring results and that is based on the will of the people. It would take time, but we would have to proceed courageously.

Issues In Inconclusive Elections
Having said all what I have said, what are the issues in inconclusive elections? Look around our surrounding neighbours and look around the situation globally. Inconclusive election has become almost a norm. Australia conducted election; it was inconclusive at the first ballot. Our neighbouring country, Benin republic conducted a presidential election, it was inconclusive at the first ballot. In Niger Republic, it was the same thing, for Central Africa Republic it was the same thing. The last local council election in South Africa, a number of constituencies were declared inconclusive. The Electoral Commission had to conduct supplementary election. Ghana is going to conduct presidential election soon. There is already a provision in Ghana that in case the election was inconclusive there would be a rerun after one month, because the constitution of any country provides the threshold for the declaration of any election inconclusive. Can it happen in Nigeria? It could happen; because nobody could sit down unless you are not organising proper election, to say that an election is going to be conclusive.

It is the voter that determines whether an election would be conclusive or not. How did we declare the presidential election in Nigeria conclusive? The constitution again is very clear on that. The person declared winner must score the majority of votes and a quarter of the votes cast in two thirds of the states of the federation. But if that doesn’t happen, the constitution has provided a remedy. But if it happens in Nigeria there is no way the Electoral Commission can conclude the election under the constitution.

In Ghana, if you take the total voting population in Ghana and Niger Republic, it is probably the size of Lagos and Osun, but they have given themselves one month to conduct a rerun in case the election is inconclusive. Yet, Nigeria with 120, 000 polling units with over 70 million registered voters as we speak, our constitution provides for only one week to conduct a rerun election. It is impossible to conduct a proper rerun election within one week. You have to go and print the ballot papers, often outside the country, because of our own peculiarities as a nation, not necessarily because of our incapacity to do so and then to deploy.

In the last general election, INEC deployed 700, 000 ad hoc staff for the election. If a presidential election is inconclusive, you cannot conclude it based on the legal provision. The happy thing is that we are talking with the National Assembly and all the committees in the senate and House of Representatives, particularly with the constitution amendment committee chaired by Senator Ike Ekweremadu, at the Senate; to see what we can do about it.

Let me use practical examples of what transpired, why elections were inconclusive. You all know about the return of the spectre of violence; we will come back to the issue of violence. But let me use two recent examples. In the FCT, we conducted election into the six area councils, the result in four area councils were inconclusive at the first ballot. And our critics said, O! INEC has come again with inconclusive election, even in local government election. But we need to look at the facts before us. Yes we conducted election into six area councils, but the election in FCT was not six constituencies. We conducted election in 68 constituencies and at the end of the exercise, issued 68 certificates of return. Because you have six area council chairmen, and there are 62 councils. Each one is a constituency for the election of a councilor, which is the legislative arm of the local council since INEC conducts local government election.

But take the experiences of some of the constituencies; take AMAC that includes, Asokoro, Maitama, Wuse and Garki. Out of a voter population of 1.1 million in FCT, AMAC accounts for over 540, 000 votes, almost fifty percent. But what was the percentage turnout? 11 percent, if 11 percent of voters came out to vote, whose fault is it; they don’t even know who their councilor is. As a result of that any small disruption in any of the wards renders the election inconclusive. Very low turnout, swell in votes; any small disruption in a big polling unit renders the election inconclusive. And my reason for saying so was the outcome of the election in Gwagwalada. We conducted ten area council elections in addition to the area chairmanship election in Gwagwalada. In one of the constituencies, the person declared winner won by a margin of eleven votes. That is how our elections have become in Nigeria today.

I will give you another example from Plateau State. The courts ordered the commission to conduct a rerun election in Pankshin North and Pankshin South; one polling unit in each of the constituencies, which we did. And after the election was concluded in the polling units, the two constituencies changed hands. So it means in Nigeria today one polling unit can make a difference in our election. The same thing happened in Ida state federal constituency.

Let me then come to the cost of inconclusive elections. One of the major reasons for the return of violence is, some people may argue it does not feature again in our elections. INEC came up with a revised guideline, which provides for margin of lead and margin of cancellation. That if the number of registered voters in places where elections were canceled is more than the margin of lead after the election, INEC should cancel the election and conduct supplementary election; because that renders the election inconclusive.

It has therefore arisen to protect the integrity of votes. In the past, politicians would disrupt election where they were not strong so that they can win based on votes from their areas of strength. But the organised disruption should not rule out voters so that their votes can count. But the politicians have now discovered that they can disrupt where they are strong so that they can force the election to be inconclusive. Some of you must have watched the declaration of results in the Kogi governorship election.

The agent of one of the parties was more interested in the release of the result than the credibility of the process. He went on national television saying that the election must be concluded the same day. They ended up disrupting the process. That is why we came to the issue of margin of lead and margin of registered voters before the hand of God. We were caught in the middle of absence of constitutional provision and Electoral Act. So you have a situation where politicians disrupt elections where they are strong now they disrupt elections where they are not strong so that they can ask for a rerun. But whenever election was declared inconclusive by disruption the cause was violence or wherever there was no violence, but threat of violence election was declared inconclusive.

I give you two examples. Yobe: we conducted a bye election in a federal constituency in Yobe. There were four local governments in that federal constituency, including Shekau village, where the leader of Boko Haram comes from. And another local government called Bulami, which was recently liberated of insurgents. We conducted the elections and one unit was cancelled, the election was declared inconclusive.
Bayelsa: You know what happened in the governorship election in Bayelsa, particularly in Ekeremor and Southern Ijaw. Ekeremor is one of the local governments that are hard to visit, being completely riverine. Southern Ijaw is substantially riverine; the only place that is accessible by road is Amassoma. So, it was difficult for us during the governorship election, because of Southern Ijaw. Shortly after we completed the governorship election, two state constituencies, were nullified. Guess where? Ekeremor and Southern Ijaw. Come and see the faces of staff; ‘are we going to Ekeremor again?’ But by the end of the day, we successfully conducted supplementary election in Ekeremor and Southern Ijaw.

In the governorship election our staff were prevented from deploying in Oproma, the headquarters of Southern Ijaw. There was sporadic shooting all over from the morning of December 5, we tried to mobilize on December 6, we just cannot abandon the local government. It has the second highest population of registered voters after Yenagoa, the state capital: 120, 000 registered voters and 110, 000 PVCs collected. So, there is no way you could have concluded the election on the basis of the margin of 33,000 when you have voters with over 110, 000 PVCs who had not voted. But when we went for a rerun election in the two constituencies, not even one firecracker went off. So, there is a correlation between violence and conclusiveness or otherwise of elections. We are committed to every vote counting.

Let me share with you something we observed in Nassarawa State. We conducted election in Nassarawa/ Tuta federal constituency, it was declared inconclusive. We were assailed, O! INEC again with inconclusive election! But this is what we saw: In Nassarawa Local Government Area, there were some incredible results that came in that no electoral commission with any iota of credibility can uphold that kind of result. The registration area is like a ward, and about 11 polling units. Let me share with you this, Akum polling unit total number of registered voters, 1, 181, total number of accredited voters, 200; total number of valid votes cast 779 votes. It was incredible. There is another one, Agam. Total number of registered voters 1, 130; number of accredited voters, dash; total number of valid votes; 1, 030. Where did they come from? Then we have Afura 1 polling unit. Total number of accredited voters, 48; total number of votes cast, 788. This we discovered at the point of collation. We cannot have a credible election if we allow this kind of result to stay. We promptly canceled the election because it did not conform to the electoral laws. INEC staff were mobilised the next day to go and conduct election that we were satisfied with and that we can vouch for the credibility of the outcome. So we are committed. I will never declare an election conclusive where it is obvious that it was inconclusive. In my conscience I would not do that and it is not good for our democracy.

What We Have Done So Far.
For us as a new commission we have been conducting election, one election after another since we came on board. The first election we conducted was Kogi, November 21, 2015. I was sworn in on November 9, less than two weeks before the directors briefed the commission; we were confronted with a major election. Two weeks later, Bayelsa came. We have been conducting election one after another virtually every week, including tomorrow (three Sundays ago) in Oyo. One in Orelope and then we have two state constituencies in Sokoto State. In Oyo, the vacancy was created by the death of the incumbent. In Sokoto a member of the House decided to resign to contest for the local government chairmanship. So he left the State Assembly to become the chairman of his local government.

So far this commission has conducted 137 elections, which is the highest number of elections conducted by any electoral commission outside the general elections. By the time we conclude Oyo and Sokoto tomorrow, we had conducted 139 elections. There are outstanding elections in Rivers thereafter we have Edo and Ondo governorship elections. In between we have Lagos; a member of the House of Representatives died; we have to conduct a bye-election. And we have two other rerun elections that are subject to litigation in Anambra. So it has been election after election since we were sworn in. It is said that practice makes perfect. We hope that we would continue to perfect the system.

Litigations
We are presented with another challenge, litigations. This litigation has become a habit; everybody wants to go to court. Believe me at the end of the last general election, INEC was drawn to court 680 times. There are 680 litigations in election matters. 600 of the cases were dismissed, 80 were upheld. That was why we had to conduct 80 rerun elections. But in addition to the 80 rerun elections, we had to conduct elections in Kogi, Bayelsa and FCT. And down the line Edo and Ondo; thereafter we go to Anambra, Ekiti and Osun. But we have also conducted a lot of bye elections. So far out of 14 we have conducted 11 by tomorrow and Sunday the tally will go to 13, Oyo and Sokoto and that will leave us with only one.

Not only that it has been election after election some elections were nullified by the courts and the commission ordered to issue certificates to the petitioners who were adjudged to be the rightful winners of the election, 23. We have since complied and issued certificates of return. So from the last election, 80 rerun elections and 23 nullified elections where we were ordered to issue certificates of return 103 elections have been conducted. We will continue to do what we can. Some of the judgments and orders coming from the courts have not been easy for the commission. I know that Abia was an issue, because we were ordered to issue certificate. INEC has never disqualified any election. The court disqualified an election and ordered INEC to issue certificate of return. The word was forthwith, which means immediately; any way you looked at it. We complied. The critics said we would have allowed them to go on appeal to the Supreme Court. But there is a new trend, if you fail to execute court judgment they will serve you with form 48, contempt of court. Since we didn’t nullify the election but a court order, the court of appeal overturned the judgment as it did yesterday, we were bound to comply. What is our problem? You can go on appeal to the Supreme Court. But it has become a challenge for us. The current leadership issue in PDP, ordinarily you will think it is about compliance. But it is more complicated than that. In three months between May and two days ago, INEC was served with 11 judgments and orders from 11 different courts of coordinate jurisdiction from three different cities.

And most of the judgments contradict each other. The last time, on July 4 when there was a judgment from the Federal High Court, Port Harcourt we accepted it and recognized the (Senator Ahmed) Makarfi faction, based on the established legal principle of latest in time authority. But you find courts of coordinate jurisdiction making contradictory judgments on the same matter. Within a period three days, early this week, on August 15, we were served orders of the court in Port Harcourt that we must continue to recognize the Makarfi faction and monitor the convention. As we were preparing to obey, another judgment came from Maitama Abuja saying it is not Makarfi but (Senator Ali Modu) Sheriff that is the rightful chairman of the party and that we should recognize him. So the latest in time continue to change.