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‘Blame politicians, not judiciary for perversion of electoral process’

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Azubuike

Dr. Lawrence Azubuike is a lawyer and former Resident Electoral Commissioner (REC) of the Independent National Electoral Commission (INEC) in Southeast states of Anambra, Enugu and Ebonyi between 2011 and 2015. In this interview with Assistant Politics Editor LEO SOBECHI, he maintains that inconclusive elections are evidence of improvement in the electoral system, adding that the judiciary should endeavour not to supplant the will of the electorate during electoral disputations.

The 2015 elections appeared to be a watershed in Nigeria’s election management. Do you think Nigeria dropped the ball thereafter?
I will not say that we dropped the ball as a country, or specifically, the commission. I will say that 2015 election, as you described it, was a watershed. It was truly a watershed because it raised the standard and expectations for electoral institutions or electoral bodies.

Following that, our people are also very sensitive to any lapses on the part of election management bodies.  Certainly, 2015 introduced specifically the PVC (Permanent Voter Cards) and Card Readers. The PVC and Card Readers were introduced in 2015, so they were innovations in the electoral cycle.

We were expected to build on that, it will seem to me that the gains made in 2015 have not been sustained and we may not blame INEC. There is enough blame to go round, because you know that the PVC and Card Readers kind of, caught the politicians unawares. It seems to me that politicians have now devised a way to get around the PVC and the Card Readers and that is why you would probably say that the country has dropped the ball.

I think we can still fine-tune those innovations and processes to make them durable and long-lasting. We viewed 2015 that we did not know about those innovations, but being familiar with them now, even some of the inadequacies and shortcomings that manifested in 2015, we were not too critical about. But now we are, because we are used to those processes and again, just by dint of development, the technology and the social media, you have more information than you had in 2015.

People are more conscious and aware of what is going on in the field. To be fair to the current INEC, it may not be the case that the ball has been dropped, it is just that people are now more familiar, aware and conscious of any lapses on the part of the electoral body.

What is your take on the perceived undue interference or dominance of the judiciary in electoral management?
I think the premise of your question needs to be refined. I will not call the role of the judiciary in elections as undue interference. The judiciary is there to resolve all kinds of disputes and the judiciary do not, on its own, intervene in any dispute for that matter.

Somebody has to go to court, somebody has to initiate the process and invite the judiciary to take a look.  Consistent with the rule of law, everything in the country is amenable to the judicial process. I think we will rather blame the politicians; they tend to pervert the process. The judiciary itself has some blame; they ought to show some restraint. And what I mean by that is not that they will not entertain disputes, but they should be able to discern and deal with some frivolous cases. It behoves the judiciary to say you have the right to approach us, but we have looked at it and it is not sufficient to overturn what the people have decided.

Having said that, just as the Constitution recognises the judicial powers; it enables people to go to court.  I am just saying that the court ought to show some restraint. They seem to be thwarting the popular will. I say this with some level of concern and restraint, like a situation where the court gives a verdict that results in someone who polled less coming tops.

Let me just say that you have a case or election and somebody gets majority of the votes and someone else has less than that and at the end of the day, the person who won the minority or a smaller number of votes is declared the winner, because for some technical reasons, the other person was not qualified to vote. I defer with the courts on that.

Even if they find that there is merit in a case, nothing should be done to thwart democracy as majority rule.  Democracy is government of the people, by the people and for the people and it is indicated by majority rule. So, even if the court thinks that a particular litigant has merit, they should not be eager to compel INEC to issue certificates of return to people who did not win so to speak.

In the past, what the courts did was not to declare a winner but if there was a problem with the election, they sent the candidates back to the field for a repeat election. I felt that was a matured way of reconciling these disputes instead of just declaring anybody the winner.

These days you find politicians not worried because invariably they would go to court. They are fond of going to court in Abuja.  You have an election that took place somewhere else and a particular litigant or one of the contestants rushes to any court for that matter, even in Lagos, he uses sophistry and legal maxims about jurisdiction. And before you know it INEC is compelled to issue a certificate of return to someone who did not win the election.

I think the courts should have a rethink and consider what they do in that regard. I know they are following the laws and the precedents, but the legal maxim is that the ignorance of the judge is the calamity of the innocent.

You can have bad laws being administered by a good judge and there won’t be a problem, but if you have good laws and have bad judges, you have a big problem. So, the courts need to sit up and look at the consequences of their decisions, it is not just the technical outcome.

Because there were slight irregularities or some kind of problem with the election and then you overturn it, you ignore the majority votes and somebody else is declared a winner who never won the majority of the votes.

In that situation, even if you are fair, you could say the person the electoral body declared elected is guilty of some kind of irregularities and therefore should not have been elected and then you punish him by saying you did not win, it is the man next to you that should be the winner. How about the rights of those that voted for that person, who are in the majority? So the principle of the right of the electorate to vote is not respected. We see everything from the perspective of the politician; we do not consider the rights of those who selected the person that the court now says is no longer the winner of the election.  I think the court needs to fine tune their acts in that regard.

When election related matters come to a court will you suggest that the court should vary the probative value of exhibits or the evidential procedures?
That is a technical question. By its nature, election matters are civic cases and I understand that proof in civil cases are balance of probabilities than that of the opponents, but electoral cases should be taken a little bit more seriously rather than lowering the standard.

I will say that the standard should be reasonably high. If an allegation of crime is made in the context of any civil suit then you have to prove it beyond reasonable doubt, but other than the guiding principle is the balance of probabilities. I agree that certainly you do not lower the standard, but the question in election related cases is, who should take over the reins of government. And I think that is a fundamental matter; it is something the court should take more seriously and not be frivolous about.

Do you think the absence of internal democracy in the political parties vitiates the efforts to manage our election in the country?
I was expecting you to ask such a question.  It is 60 or 70 per cent of the problem of election management in political parties.  Initially INEC or the electoral body could delve into issues of internal party problems, lack of internal democracy and more or less supervise the conduct of primaries and congresses. I mean take active part and say this person who won the primary and should be recognised.

I understand that in the past, there was abuse of that process.  You have challenges everywhere and you have the challenge of integrity in INEC.  INEC was issuing and recognising people who did not even participate in the primaries and the reaction from the political class was to amend the law to say that INEC can no longer refuse to recognise a candidate put forward and submitted by a political party.

INEC is now helpless when political parties conduct sham primaries and sometimes even fail to conduct primaries but submit names. So once the names are received from the recognised party authority; the secretary or chairman of the party, INEC will recognise them. The remedy will be for those grieved to go to court.

So what you have is litigation up to the 11th hour. Even hours to the election, you may not be certain who the candidates are.  Meanwhile, you are supposed to print ballot papers and these are things you were supposed to have planned several months ahead of the election.

How can you then print ballot papers without knowing who the candidates are? In extreme situations even after the elections, litigations will continue, pre-election litigation will continue and you have the court deciding that the person who contested the election was not the proper candidate.

It is a major problem for INEC, especially as the political parties and political class are not living up to their responsibilities.  Another related problem is that INEC is still saddled with voters’ education.  Statutorily, it is supposed to conduct voter education, but we recommend that meaningful voter education is best conducted by political parties everywhere in the world. They even help drive voter registration, but INEC is primarily charged with it and responsible for them. Political parties do nothing to assist in that regard and these are herculean tasks.

Observers say the number of political parties vying for positions is unwieldy. Do you think that the number of political parties affect negatively the conduct of elections?
Yes, here we have to be careful, because the whole notion of political party is related to the fundamental right of freedom of association.  You will find out that when I worked with INEC, we had a big poster listing the political parties in our office. Because even as an INEC official you probably did not know all the political parties in existence and you are supposed to liaise with all of them.

Some of them have no offices, some have nothing; they are just there because they have been registered.  In an election, you have to include all of them in the ballot, 60 political parties or 30 political parties or whatever number in the ballot.

Some of them will not get any votes, yet they are there and make the system complex and to compound the problem, one of the grounds to vitiate or void an election is if you exclude a candidate or a party.

So if you have 50 parties, the chances of excluding one or two parties that are not really on ground, but existing only in name is high. When you have a streamlined process, you know where they are and can liaise with them, if there is a meeting; you know where to reach them.

The large number is very unhealthy and it makes it difficult, because you are being careful not to exclude or run afoul of any rule that will lead to the consequence of vitiating an election that you spent two to three years preparing for. You cannot vitiate it because a non-descript party was excluded.

I think it makes the work of the electoral body more difficult, but we need to balance it with the requirements because there is freedom of association.  In other climes, what the parties do is that they start from the grass root.  Here, for obvious reasons, we do not want regional parties. I guess given our circumstance, nobody wants to encourage that, where there are parties only contesting in particular areas, local government and so on.

I guess it is a problem we shall continue to grapple with and so the party has to always strike a balance.  A political party should be made in a way that does not need certain requirements and that is a proper way to maintain that balance.

But some stakeholders argue that adopting full electronic voting could thrash the problems created by plethora of political parties?
In Nigeria we like to bandy things that we think there is a magic wand to achieve.  If you do not have integrity in the people conducting election and good faith of politicians, whether it is electronic or manual, you will have problems. I do not think we are ripe for electronic voting. Electronic voting is based on technology, before we could not conduct interview in this fashion.  Even the advanced countries are scared of going for full electronic voting.

The votes you cast is for you that is why the polling booth is secluded so that you have privacy and others do not know who you are voting.  The electronic voting system must be devised in a way that nobody can discern who you voted for.

If the people who run the electoral process are compromised, they can make or mar the whole process.  How about the infrastructure?  Even the card readers used to evaluate in 2015, I know that there were places where you could not transmit the information from the card readers to the servers for whatever statistical purposes they were needed.  There were places where they did not have telephone coverage and things like that.  How can those people vote electronically?

One other hurdle is voter apathy. We see general elections where less than 30 per cent of the population turn to vote, what do you think should be done about these twin issues?
Like I said earlier, voter education is obviously very important.  I did make the point earlier that the political parties are also supposed to be involved in voter education and are meant to sensitise people to come out and vote.

It is lack of interest, it is a function of our level of education and sophistication and secondly, the environment.  Elections are now prosecuted like war, the military has to show up, and the police have to be around, all the security agencies have to show up and all the likes.

Despite all that we have recurring incidences of violence at elections and pre-elections.  If you suspect that there will be problem in a polling unit, every Nigerian will stay away.  We ought to make the polling units safe.

We also need to make them have faith in the process.  The environment is not conducive to people participating fully.  People have, to a large extent, given up.  They take it on the electoral process and say no, I am not participating in this again.

We will have to create the trust that their votes will count.  They must be made aware that they can change that government by voting and that complaining is not the answer, but you can change the governor through their votes.

Don’t you think that inconclusive elections and conflicting court rulings also aggravate voter apathy?
Of course, it will affect and aggravate voters’ apathy.  Although it already affects the attitude of the electorate, I believe that inconclusive election actually became prominent or more common as a result of the improvement in the electoral system.

In the past, because you did not have the level of integrity you probably now have, the winners will run away with landslide, sea slide or whatever slide and so it was not a question of inconclusive election because those who won, won with very wide margin, whether the victories were the truth in fact or otherwise did not matter.

Now the processes have been scrutinised and improved upon to ensure electoral integrity, the electoral content are now keener, so the elections are now competitive. Two or more candidates going into election and as a result, the incidence of cancellation and election not taking place in certain parts of that constituency, which did not matter in the past, has become very relevant because the law says if the margin between the winner and the runner-up is less than the total number of voters in areas where election did not hold or for some reasons was cancelled, results cannot be reached.

And they have to go to those areas and give them the opportunity, because their participation will affect the outcome.  The situation of inconclusive election is actually the effect of improvement, so we should not view it so negatively.

Having said that, we should take steps to ensure that those things that lead to elections not holding, been cancelled from the constituency do not happen.  There is no other way, no matter how well prepared and how honest you are and you want to conduct election, if there is violence, everything will be thrown out of the window.

Security is the primary concern at that point, so instead of criticising the electoral process, election did not hold here, elections were cancelled because it was violent, we should address the issue of the violence and then we should start holding the security agencies accountable, because the electoral body is not a security agent.

We can only rely on a secured environment provided by the security agencies.  The issue of blaming the people that conduct election or who did not conduct the election, because it is inconclusive, we should get the root cause, and after every election there should be a review, we have to ask why elections did not hold in certain places.

What were the security agencies responsible for in those places, those in charge of those polling units, what steps did you take to ensure security.  Not just INEC or the electoral body, but the security bodies should be able to answer such questions and the electorate or the people should begin to demand some kind of accountability or explanation, not necessarily from INEC but from the security agencies because you do not expect the electoral bodies to also be security agencies.

The success recorded in 2015, to what extent did the personal attributes of the then Chairman of INEC, Prof. Attahiru Jega play?
I served a greater part of my tenure under him. I saw a firm, charismatic, knowledgeable person.  He is fearless and he is a straight shooter.  His academic background, he was from ASUU (Academic Staff Union of Universities), but he was not really seen as part of the system. He was seen as a person from the civil society, so to speak. So he came with a lot of credibility, promise and he delivered. That was the fact, who he was helped a lot.

I am not any way suggesting that the current chairman lacks those attributes. He does and I think he is equally succeeding, but he is facing different challenges. And the standard and people of 2015 and the people now are more conscious and more evolved and more critical. So I think the former chairman operated in a different environment and the current chairman is operating on a new environment.


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