Prof Akin Oyebode l Wednesday, Jan. 16, 2019
Introduction
LAGOS, Nigeria – Let me begin by saluting the prescient initiative of the organizers of today’s event by selecting such a contemporaneous topic for this lecture which is to honour and celebrate the life and times of the inimitable and perhaps the most gifted and accomplished lawyer of his time, Gani Fawehinmi. Anyone lucky and privileged to have witnessed any of his numerous court addresses would recall that that not only did he possess a gift of the garb but was also endowed with a deep knowledge of the law as well as tremendous sagacity and charisma that always left the mouths of his audience agape at the profound intellect, brilliance and erudition encompassing his advocacy.
Although this is not my first time of being a speaker at the annual event commemorating this giant and distinguished senior member of the Bar, I wish to express my gratitude to the organizers for giving me yet another opportunity to be guest speaker at today’s event in his honour. For, Gani was no ordinary lawyer but an avatar and especially gifted and prodigious contributor to the growth and development of the Bar and indeed Nigerian law.
We are truly enduring perilous times in the political life of the nation when unprecedented accusations, counter-accusations and incriminations are shaking Nigeria to its very foundations all because of the internecine struggle for political power through elections which should, as in other climes, be a joyous occasion and celebration of democracy, unaccompanied by threats and self-doubt threatening the vitality of the electoral process.
It is within this scenario that we have been called upon to interrogate the role and place of the electoral umpire-the Independent National Electoral Commission (INEC) in the attainment of free, fair and credible elections, a most testy issue in the politics of this country.
To recall Juvenal’s question, Quis custodiet ipso custodies? (Who is to guard the guards themselves?) The same enquiry can be made of the electoral umpire for, without an unbiased, non-partisan umpire, it would be pretty difficult if not impossible actually to attain a free, fair and credible election. Yet, the task should not be assigned to only INEC since the rest of the population has an even greater role to play in achieving this noble objective.
In further considering this issue, we intend to begin by observing the pivotal role that INEC is expected to play towards the desideratum of free, fair, credible and transparent elections in Nigeria before considering the role of its predecessors and finally, expatiating on what needs to be done to uphold the independence of INEC.
The Import of Independent Superintendence of the Electoral Process
It is self-evident that pursuant to the nemo judex in causa sua maxim, the electoral referee cannot act as both a player or participant in the contest as well as rule enforcer in the game of political power hence the necessity to insulate it from the rumble and tumble of electioneering and struggle for attainment of political power.
For as long as democracy entails equality of access to political competition, there remains a felt need for an independent body to ensure a level playing field, fairness and equity among competing rivals. If this was not the case, then the entire exercise becomes a charade and pre-determined game of musical chairs where the winner is, more often than not, predictable. Although in modern times, opinion polls, exit polls and social research tools have made political forecasts less precarious, they are not altogether foolproof.
This is why the field is thrown open to all and anyone ready, willing and able to stake a claim to political power in consonance with the assumptions of free enterprise and tenets of liberal democracy. Hence the role of the enforcer of the Constitution, electoral laws, regulations and guidelines is expected to be a rigorous and impartial one such that at the end of the day, it would be clearly manifest to all and sundry that justice had been done.
While institutions are an important element in a democracy, the independence of mind, moral integrity of functionaries of the electoral body and non-partisan disposition could well be decisive in ensuring a free, fair and credible electoral process, especially in an emerging democracy such as ours. Accordingly, scrupulous efforts should be made to ensure that only persons of impeccable character and unquestionable moral probity are appointed into the critical office of election managers.
The acid test of electoral democracy can truly be said to lie in the sanctity of the laws governing the process and untrammeled fidelity to laws guaranteed by a fearless and decisive umpire who enjoys the confidence of the population. Without this, things can very easily descend into chaos, street riots, murder and mayhem, perpetrated through self-help arising from loss of faith and confidence in the system and perceived injustice by those who believe they have been done in and are holding the wrong end of the stick of political and social injustice.
Thus, it is in the interest of the ruling class to demonstrate fidelity to the laws guiding the electoral process and abide by the injunctions of the electoral umpire if the political leadership does not intend to pull down the roof down on themselves.
Elections in bourgeois societies, Marx reminded us, merely afford the masses once every four or five years, the chance for them to select their executioners but the soothing balm is the sense of justice attendant to all contenders in the belief that justice had been served. Accordingly, the insurance against all hell letting loose is the belief among all contestants that indeed the electoral umpire had acted fairly and justly in the exercise of its supervisory duties.
Antecedents of the Current INEC
Although Nigerians had been exercising the franchise as far back as 1922, it was the 1959 general elections that really unraveled the nexus between politics and the electoral process. While British colonialism had imposed a skewed census and deliberate gerrymandering of electoral constituencies on the country, the administration and supervision of the elections under the colonial government resulted in loss of faith and confidence of enlightened elements among the contestants in the elections and neutrality of the colonial administrators. The shenanigans of the colonial power were aimed at foisting a pre-determined successor elite on the country which resulted in transfer of power to conservative elements that would, by and large, ensure maintenance of the status quo as against more knowledgeable and progressive forces that would rock the boat and nudge the country towards true liberation.
By the time of the next general elections in 1964, the stakes had become so high that the tide of political crises and contradictions engendered in the polity could not be arrested and ultimately consumed the First Republic. For the next thirty years or so, the military junta made no pretences about democracy and, therefore, had no need for any electoral body. Upon return to civil rule, the country was treated to valiant efforts to infuse some sanity into the electoral process through the Federal Electoral Commission (FEDECO) under the control of personalities such as Michael Ani, Ovie-Whisky, Eme Awa and Humphrey Nwosu but the Nigerian political animal continued to run wild in the forest with apparently no-one to rein it in.
The metamorphosis of the FEDECO to the Independent National Electoral Commission (INEC) under the leadership of Abel Guobadia and succeeded by Attahiru Jega and now, Mahmud Yakubu gave something to cheer about although quite a lot of observers thought it would take more than the addition of the adjective “Independent” to really ensure that INEC became an independent, non-partisan electoral umpire. The loss of credibility among many of its stakeholders is one reason why we are here gathered today discussing what needs to be done to enhance the confidence of all and sundry in this incredibly important institution. However, before we address this, it seems apposite to outline the inadequacies and difficulties confronting INEC in order to be fully seised of optimal prescriptions for the redemption of our electoral umpire. Little wonder, therefore, that we are even today still wrestling with the mechanics of ensuring the independence of our electoral umpire withought which it is well-nigh impossible to conceive of a well functioning democracy.
The INEC Problematique
In a fledgling democracy such as ours, it is not altogether unexpected that the electoral umpire is, more often than not, an object of recriminations, brick-bats, accusations and counter-accusations. This is because the political gladiators usually mistake the wood for the trees and would stop at nothing to secure a larger size of the pie. For many of them, the contestation for power is a fight to finish, a bitter internecine war where the first casualty is, more often than not, the truth. This do-or-die mentality spares no-one and the electoral umpire is often caught in the cross-fire of the opposing political parties so much so that in the final analysis, a lot of heat is generated with little or no light.
First, it is necessary for all concerned to bear in mind that INEC is a creature of law and, therefore, should always evince strict compliance with the country’s laws and Constitution. In constituting its membership, the appointing authority should exercise due diligence and ensure compliance with both its constituent law as well as the Constitution in order to obviate the hue and cry as was recently seen regarding the pedigree of one of the National Commissioners. Like Caesar’s wife, all of INEC’s functionaries should be above board and if and when found to have compromised their status, should be immediately disciplined and, or have their services dispensed with. A situation should not be allowed where there is distrust or mistrust between it and stakeholders.
Undoubtedly, INEC is empowered to issue necessary and proper guidelines to facilitate its activities. However, INEC’s power should be exercised with discretion in order not to bring the roof down on everyone. For example, the registration of 91 political parties however well-intentioned, is today reminiscent of a case of the medicine being worse than the disease! INEC is well advised to remember the dictum that the road to hell is paved with good intentions and, therefore, in the application of laws, it should not wreak greater injury on the polity.
In the same vein, INEC should cease and desist from anticipatory implementation of laws. For example, while the use of smart card readers or electronic transmission of election results might appear justifiable on account of their enhancement of the electoral process, it is untenable to do so without an effective legislation thereto. There should be a clear distinction between law de lege lata and de lege ferenda.
Admittedly the executive arm can influence INEC proceedings by delaying or withholding budget allocations to it, INEC should be able to solicit the assistance of civil society organizations, professional groups and the people generally to bring pressure to bear on the executive to compel it do the needful in order not to impede or frustrate INEC activities.
The necessity for a nexus between INEC and civil society in order to enhance its independence is pretty obvious. In its quest for independence, INEC has few to turn to other than civil society. Accordingly, civil society should enlist in the vanguard of sentinels for the independence of INEC in the overall interest of the polity. For, it is not enough that INEC has done justice to all the parties, that fact must be placed squarely in the public domain and perhaps the best instrumentality for effecting this is civil society. It is totally unacceptable as is currently alleged for INEC to be taken hostage and made an object of blackmail by political forces and vested interests in a rabid bid to interfere in its activities and bend it in order for it to see things their own way. While there is tremendous foreboding across the land for the next elections and, especially the aftermath thereof, it is important that we keep hope alive and insist on what is right if we do not want to validate Murphy’s Law.
Closing Remarks
The central position of the electoral umpire in the optimal functioning of the electoral process within a democracy can hardly be over-exaggerated. Where and when the independence of the electoral body cannot be taken for granted, one can as well bid goodbye to free, fair, credible and transparent elections. However, an unbiased and non-partisan electoral body does not drop from the sky. It has to be created and nurtured by law and driven by men and women of unimpeachable character and the right disposition for it to effectively perform its ascribed role. More important, the independence of the body must be safeguarded and guaranteed by a conscious and vigorous civil society, in a position to defend it from any and all attempts to whittle down its ability to function without let or hindrance.
In our own circumstance, Nigeria would seem to have its job cut out for it. The parties in contention would wish they had INEC on a leash but then, they should have an alert and vigorous civil society to contend with. However, the question we have to answer now is, is civil society ready, willing and ready to stand up for and with INEC in the face of a clear and present danger to its very existence and optimal functioning?
