Prosecution Of Election Offenders: Interrogating actions, inactions since last election cycle

“Nigeria now ranks among the leading democracies in Africa and in the Commonwealth 20 years after it began to experience uninterrupted democratic culture.”

With these words, President Muhammadu Buhari, in 2019, captured his feelings when Nigeria marked 20 years of uninterrupted democracy since the country transited from military to democratic rule. It was in the wake of the 2019 general elections, and President Buhari, while speaking as visitor during the 50th convocation ceremonies of the University of Lagos, waxed lyrical about the just-concluded 2019 elections at the time.

In his review, the president noted that, “with the 2019 general elections concluded, the nation had reiterated its choice of democracy as the system of government by which it hopes to imbibe all-round development.” But far from President Buhari’s perception, there seemed to be a consensus among stakeholders, largely populated by the opposition, rights groups, and international observers and agencies, that the electoral process needed urgent reforms.

With increased number of election petitions going to the tribunal, with election offenders roaming free without prosecution, with the independence of the electoral umpire, the Independent National Electoral Commission (INEC) being largely questioned, among many other issues, there were renewed calls for the implementation of the Justice Mohammed Uwais report. The belief in many quarters was that the Uwais Report had far-reaching recommendations that could transform Nigeria’s elections and make the outcome transparent, credible and acceptable.

Interestingly, with four years gone, another election cycle having rolled by, and the Presidential and National Assembly elections conducted, major stakeholders are, again, murmuring over the conduct of the elections and pointing fingers at perceived inefficiencies of INEC.

While it is noteworthy that a number of electoral process reforms demanded in the aftermath of the 2019 elections have been carried out or captured in the new Electoral Act 2022, one knotty issue still haunting elections and outcomes in the country is that of election offenders and ineffective prosecution processes.

In tandem with the views of not a few stakeholders, Senior Legal/Programme officer, Human Rights Law Service (HURILAWS), Collins Okeke, noted that the Uwais Report, if put into good use, would take care of some major issues that characterised elections in the country by addressing INEC’s inefficiency, modernising the voting and collation process, and restoring confidence in the election petition tribunals.

Specifically, the Uwais Report addressed recommended the creation of the following special commissions: the Political Parties Registration and Regulation Commission, the Electoral Offenses Commission, a Constituency Delineation Commission and Centre for Democratic Studies. This was primarily to unbundle INEC and refocus it strictly on conducting general elections while the new bodies would be saddled with pre and post-elections matters.

Election Offences As Recurring Decimal
Following the February 25 Presidential and National Assembly elections, the Inspector-General of Police, Usman Baba, during an election security review conference with senior police personnel in Abuja, revealed that police recorded and responded to 185 major incidents and arrested 203 electoral offenders.

He said the cases were at various stages of investigation at the Nigeria Police Electoral Offences Desks, adding that they will be concluded and processed to the Legal Department of the Independent National Electoral Commission for prosecution in due course.

This was as the Lagos State Police Command also confirmed that five out of 23 persons arrested during the elections would be arraigned for electoral offences. The Command made the disclosure while reassuring the electorate of optimal security during the upcoming governorship and state House of Assembly elections on March 11. The suspects, according to the command, were nabbed in connection with the destruction of electoral materials and ballot box snatching, among others.

The command’s spokesman, Benjamin Hundeyin, said: “During preliminary investigation, only five suspects out of the 23 arrested have cases to answer in court for allegedly disrupting the electoral process in the just concluded Presidential and National Assembly elections held on Febuary 25, 2023. They will be charged to court any moment from now for disrupting the electoral process. Their investigations have been concluded. The rest were just victims of circumstances.”

Unfortunately, the INEC chairman, Mahmood Yakubu, while bemoaning the commission’s lack of capacity to prosecute electoral offenders, has repeatedly stated that most of the cases are often unnecessarily prolonged or concluded without the offenders getting appropriately punished.

Clamour For Electoral Offences Commission
SINCE the beginning of the Fourth Republic in 1999, there is hardly any election that has not been characterised by election offences in various forms. Successive elections at the national, state and local council levels have been marred by irregularities with political players resorting to violence in order to outsmart one another.

Undoubtedly, electoral offences remain a major threat to credible, free and fair elections in Nigeria, as they often heighten political tension and trigger violence. Such election offences include inputting fictitious names in the voters’ register, illegal compilation of voters’ lists, underage voting, vote buying and selling, illegal possession of ballot boxes, multiple voting, and ballot box snatching, among others.

But for whatever reason(s), many of the electoral offenders have always gone unpunished. While some observers have blamed the nation’s weak justice system for poor prosecution of electoral offenders, there are arguments that INEC, as the umpire cannot be the same body prosecuting electoral offenders. Stakeholders in the electoral process, therefore, proposed the establishment of the Electoral Offences Commission, a bill they said is 14 years late and must be accorded utmost priority and urgency.

Sometime in December 2019, while disclosing that INEC lacked capacity to prosecute electoral offenders, its chairman, Mahmood Yakubu said the Commission had challenges prosecuting electoral offenders.

Yakubu said while INEC was at the moment saddled with the responsibility of prosecuting electoral offenders, it had no capacity to arrest offenders and conduct investigation “without which successful prosecution is impossible.”

“Over the years, we have worked closely with the Nigeria Police. Since the 2015 general election, 125 cases of electoral offences were filed in various Courts out of which 60 convictions have been secured so far, including the most recent one in Akwa Ibom State. The commission would like to see more successful prosecution of offenders, not just ballot box snatchers, falsifiers of election results and vote buyers at polling units but most importantly, their sponsors.

“The cases are prosecuted in the states where the alleged offences were committed.

“Unlike pre-election and post-election cases, there is no timeframe for the prosecution of electoral offenders. A case may go on for several years. Some of the cases were dismissed for want of diligent prosecution while in some states, the attorneys-general entered nolle prosequi to get the alleged offenders off the hook.

“Even where the commission recorded the most successful prosecution of electoral offenders following the violence witnessed in a bye-election in Kano State in 2016, it is unclear how many of the 40 offenders sentenced to prison with the option of fine actually spent time in jail. The fine was paid presumably by their sponsors. That is why we believe that the Electoral Offences Commission and Tribunal will dispense justice dispassionately and speedily in the same way that the Electoral Court deals with violators in other countries such as South Africa.”

Expressing hope that the security agencies would get to the roots of all violations and support the commission to prosecute electoral offenders who terrorise voters and INEC officials, and their sponsors as well, Yakubu said the commission would continue to work with the National Assembly and all stakeholders for the establishment of the Electoral Offences Commission and Tribunal as recommended by different committees. He expressed concern that elections in Nigeria, especially for executive positions, were increasingly characterised by brazen acts of impunity.

In a presentation at the Royal Institute of International Affairs, Chatham House in London earlier in January this year, Yakubu described how helpless INEC was on prosecution of electoral offences. He said: “Although the commission is empowered by the Electoral Act to prosecute electoral offences, it lacks the power and resources to make arrests and thoroughly investigate electoral offences.”

“Efforts at mitigating electoral malfeasance can only become effective with the arrest, prosecution, and sanctioning the ‘mother spiders’ to end their reign of impunity,” Yakubu said. “It is for this reason that INEC supports the establishment of the Electoral Offences Commission and Tribunal imbued with the responsibility of prosecuting electoral offences as recommended in the reports of various committees set up by the Federal Government, notably the Uwais Committee (2009), the Lemu Committee (2011) and the Nnamani Committee (2017).”

NASS Moves On Electoral Offences
AS of late last year, the National Assembly, particularly the House of Representatives had taken steps to establish the Electoral Offences Commission charged with the responsibility to among others, investigate all offences created in any law relating to elections in Nigeria and prosecute offenders.

Titled ‘A Bill for an Act to Establish National Electoral Offences Commission and for Related Matters, 2022,’ the proposed legislation had passed first as well as second readings and subjected for public hearing with only the consideration/adoption of report and third reading – passage left.

The piece of legislation is proposing, amongst others, a 15-year jail term for anyone convicted of vote buying in any election, 20 years or a fine of N40 million for persons convicted of ballot box snatching while anyone convicted of hate speech or action which incites violence shall be liable to a minimum of 10 years imprisonment or at least N40 million.

Also, the new law proposes at least six-months jail-term or a minimum of N100,000 for anyone convicted of disturbing public peace at the venue of an election while security personnel and staff of INEC convicted of trying to influence an election in favour of a candidate in an election shall be liable to at least six-month imprisonment or a minimum of N500,000.

Other proposals include at least a 15-year jail term without option of fine for any judicial officer convicted of perverting electoral justice and at least 10-year jail term or a fine of N5 million or both for anyone convicted of impersonating a candidate in an election.

However, INEC has recommended that provisions be made in the bill to establish Electoral Offences Tribunal with exclusive jurisdiction to try electoral offenders as the courts are already over-burdened. Critical stakeholders in the electoral process have also backed the establishment of the commission, such that a separate body could handle electoral offences.

According to Yabagi Sani, chairman of the Inter-Party Advisory Council (IPAC), the proposed Electoral Offences Commission would be the missing link in Nigeria’s quest for a credible, free fair and more inclusive election.

Executive Director of Policy and Legal Advocacy Centre (PLAC), Clement Nwankwo also described the proposed commission as an important institution that would support INEC in delivering credible election.