The t’s not crossed, the i’s not dotted

You do not need empirical evidence backed up by research to accept that ours is the most litigious electoral process in the world. If you doubt me, look into the court dockets and you would be shocked by what you see – files piled up to the rafters dealing with cases arising from the conduct of the fractious primaries in most of the political parties. You would also find some cases dealing with the grievances dating back to the aftermath of the 2015 general elections.

No, this is not about damming the flood of litigations. I would not be so uncharitable. I know that if the political cases dry up in our courts there would be survival problems for our bewigged and be-gowned learned brothers and sisters, many of whom trawl the law courts daily to spot aggrieved politicians with the baleful look of the lost. Political cases, like EFCC prosecutions, are lucratively expensive. And like EFCC cases, political cases have long shelf lives. Sorry, I digress.

I raise the issue about our litigious propensity for some more fundamental reasons crippling our electoral process and empowering the arbitrator as the primary custodian of that process. The legal cholesterol that has gradually clogged the arteries of our legal system must be traced to 1979. When the generals were about leaving the field to their agbada-clad brothers, they instituted the election tribunals, a system of legal dispensation intended to a) ventilate the system by channelling post election grievances away from the regular courts; b) accommodate bad losers, some of whom have made a virtue of being bad losers and c) to speed up the hearing and the decision of such cases so as to keep our democratic train on the track.

I am afraid those fine objectives appear to be watching the political world go by from their vantage position in the scrap heaps. There is no quick dispensation of justice at the tribunals any more because they have more or less been turned into ports of first call by the litigants. The cases drag on from the tribunals to the courts of appeal and thence to the supreme court. They take years. We have here a case of motion but an agonisingly slow movement. I would like to call attention to a few points here because I consider them as part of our collective humbling of our democracy.

The first is the lack of time limit to these political cases. In some cases, by the time the courts finally make up their minds, the wrong man had usurped the right of the winner for two to more than three years. And the winner is left holding a useless trophy; evidence of justice delayed and denied. The usurper has enjoyed all the perks and the benefits of an office he stole from another.

My second point arises from that. The law stipulates no consequences for those who steal other people’s mandates. This is not just right. I would imagine that if the law were to provide that the mandate thief must return everything he illegally enjoyed at the expense of the real winner, there would be less blatant rigging with so much impunity. It would advise the riggers to think twice or five times before they rev the engine of the rigging machine. If the law, as it is now, continues to allow a mandate thief who finally loses the protracted case to escape with what is clearly a loot, then the law is mealy-mouthed about justice. If the rigger knows he would not be punished in any way, it makes rigging lucrative. And injustice laughs in the face of justice.

My third point takes me to the Uwais committee report on electoral reforms. In one of its many very sensible recommendations intended to free our democracy from crash manipulations and it set on the right path, warts and all, the committee put forward the suggestion that elections be conducted six months in advance of the handover date so that all disputes or cases arising from the elections are decided before the winners assume offices. Simple. Were we to do this, there would be less confusion in the land and in the system. One clear gain is that a state governor whose election is being challenged in court would not be allowed to assume office and freely use the public treasury to fund his court case.

Four, the custody of our democracy has slipped away from the hands of the people into those of their lordships. Steadily but gradually, the courts have become the primary custodians of our elections. What a man loses at the polls he regains in the law courts through legal technicalities. I know, of course, that but for the courts some people would be denied their legitimate choice and right to represent their people. Things could thus get worse in a country where the voice of money is the voice of rights and privileges, earned and unearned. We need some balance between the duty of the courts to protect legitimacy from illegitimacy and the easy manipulation of a system that is not immune to corruption.

We are not talking of a few cases of disputed elections here; we are talking of lots of them at the federal and state levels. No election goes unchallenged; not even a village council election. The first presidential election to escape that, interestingly, was the 2015 presidential election conceded by President Goodluck Jonathan when all the votes were not even in. The man is right to keep crowing about it is his greatest political achievement in the country and on the continent. We wait to see who in 2019 will do what he did. Keep your fingers lightly crossed.

These electoral disputes, all of which head for the courts, have become the norm. It points to what is wrong with our electoral system: it has no primary custodian. The politicians have made sure of this and supported their decision in an amendment to the electoral act which attempts, it seems to me, to make the political parties the primary custodians of the process. The courts are even barred from questioning the decision of a political party to field anyone it chooses, be he a criminal or a mad man, as its candidate for an elective office. It is not right.

This needs to be looked into. In the second republic, the law made FEDECO the primary custodian of the electoral process. It had the powers to qualify or disqualify candidates for elective offices if it was satisfied that a man so put forward by his party lacked the moral standing to represent the people. INEC was stripped of this power and lost the right to assume responsibility as the primary custodian of our electoral process. Our law-makers tend to see the commission as being primarily concerned with only the duty to conduct elections. Still the integrity of an election depends as much on how it is conducted as it does on the qualifications of men and women who pass through it into public offices in the executive and the legislative branches of government.

The fault does not lie with the courts; it lies with the politicians whose commitment to humbling our democracy is so much stronger than their questionable commitment to growing and deepening our democracy, whatever they may conveniently parrot about this. I raised these issues not because I am foolish enough to think that anyone can or would be willing to do anything about them. What we have serves the interests of the politicians. I am afraid those interests matter to them more than the deepening of our democracy.