Electoral Reform (2): To be or not to be, By Nasir El-Rufai

Our first installment on electoral reforms ran through the history of elections in Nigeria, the definition of free and fair elections and the inherent flaws in the process. It was in the light of these flaws that the Late President Umaru Yaradua initiated the reform of the electoral system with the inauguration of the Justice Uwais Electoral Reform Committee in August 2007. In spite of the committee’s thoughtful and far-reaching recommendations, only few have been implemented. Little wonder then that as at 2011, the Nigerian ‘democracy’ was rated as authoritarian by The Economist Intelligence Unit’s Democracy Index. This worrisome situation needs to be addressed immediately if we are to preserve our nascent democracy.

The innumerable benefits of electoral reforms and a sustained democracy cannot be overemphasized. Having the right structures in place would strengthen the rule of law, provide a platform for credible and deserving candidates to be elected, create peace and stability in the polity and ensure that government is accountable to its citizens. With the current situation in the country, a major benefit of having credible elections would be the opportunity to break the stranglehold of PDP on the the country since the return to civilian governance in 1999; given the party has grown more and more venal since 2007!

The elections conducted in 2011 were one of the most fraudulent and resulted in widespread violence, loss of lives and mayhem across the country. The electoral malpractices were so flagrant to the extent that in the South-East and South-South zones, observers were chased away and ‘election results’ reflected almost twice the average number of voters turnout in the rest of the country. Worse still, the ruling party’s candidate in the presidential elections was credited with over 90 percent of the total votes in several of those states. INEC also experienced major logistical challenges due to the tight timelines of the 2011 elections. For instance, in many places, voting did not start at allotted times due to late delivery of election materials. So many such logistic and technical issues were witnessed around the country.

The electoral fraud that took place in 2011 was mostly achieved by altering the polling unit results when they got to collation centers and then thumb-printing ‘spare’ ballots made available to the favored party – to justify the alterations in preparation for the election tribunal. Massive amounts of money were then deployed on INEC officials, lawyers and judges to apply technicalities and mind-games to uphold the electoral fraud at the tribunal and appellate courts.

This democratic experiment is being pushed into a cul-de-sac that may lead to its premature demise as a result of the uncaring attitude of INEC, the corruption of the security agencies and the impunity of the ruling party. The critical nexus that is often overlooked by the electoral fraudsters is that without public office holders being legitimately elected by the people and therefore genuinely accountable to them, our potentials and hope for a country where things function minimally will never materialize for even those in power. What can we do to stem these? The answers are largely in implementing the Uwais Committee report.

The first step would be to build truly democratic institutions. It is essential for the various arms of government to judiciously carry out their respective functions and serve as checks and balances on one another. The Judiciary in particular needs to be truly unbiased in the performance of its duties. If it is, election petition tribunals will not drag beyond 180 days after elections. Given the foregoing, elections to the position of Governors and President should be conducted at least 6 months before the expiration of their tenures and petitions concluded with the rightful candidate been sworn-in at the right time as Uwais recommended.

In the determination of election petitions, the constitution needs to be amended to shift the burden of proof in electoral disputes from the petitioners to INEC. It would be recalled that in the last Presidential elections, the burden of proof on the appellant gave room for the PDP and INEC to maneuver their way out of the CPC appeal in the Presidential Election Tribunal. All efforts to gain access to electoral materials and the database as required by Section 77 of the Electoral Act, 2010 were thwarted by INEC thereby violating the law. While the CPC worked tirelessly to acquire proof of rigging and fraud from the INEC database, the NJC-PDP-INEC cabal connived to unconstitutionally remove the President of the Court of Appeal– Justice Ayo Salami. Even after getting away with the electoral heist, Salami remains on unlawful suspension.

The executive arm must be separated completely from INEC in order to guarantee the latter’s autonomy. Most importantly, the President should not have powers to single-handedly appoint or remove the INEC Chairman. The process recommended by Uwais for appointment of INEC Chairman starts with the National Judicial Council (NJC) advertising to the public and spelling out the required qualifications. After receiving the applications, three persons are short-listed and the nominations sent to Council of State to select one person to be forwarded to the Senate for confirmation. Removal of the Chairman or commissioners of INEC should be on the recommendation of the NJC and approval by two-thirds of the Senate which shall include at least 10 members of minority parties.

The legislature, on its part must ensure that it works diligently and speedily to amend the Electoral Act and The Constitution as early as possible in 2013 to ensure free and fair 2015 elections. The National Assembly (NASS) should endeavor to pass an Uwais Electoral Reform Bill that would restructure the electoral process for the benefit of our people.

An effort at electoral reforms would be futile if the electorate is not genuinely independent. How can this independence be achieved? By empowering the people with education, sources of livelihood and basic necessities so they can exercise their free will which cannot be easily thwarted by greedy politicians. Once people are empowered, they will vote based on informed assessment of candidates’ capability and experience as opposed to religious or ethnic sentiments. They will realize that true brotherhood does not lie in sharing the same state of origin but in people who will work to secure their lives and those of their children.

The logistical problems within INEC need to be solved and there is no better time than now to begin planning. Issues like election materials arriving late from Japan as was the case in the last elections are unacceptable. Attempting to register the expected 80 million-plus voters in three weeks will not happen. Using open source software and untested AFIS engines for “biometric” data capture won’t cut it.  Open voting booths to enable voters show ballots for payment before voting is unlawful. Virtual polling units to facilitate rigging must be abolished. All preparations need to be made and materials must be delivered to all polling units without delay. The restriction of movement of citizens a day before elections which has enabled security agencies and the ruling party to move freely and plan the rigging is not only unlawful and unconstitutional  but also unjust. In summary, the game should be up for those who plan to rig, or facilitate rigging.

Some schools of thought believe that electronic voting may be the solution to problems such as ballot box snatching and massive thumb printing by individuals to justify false vote records. In fact, the Uwais Report recommended that the Electoral Act be amended to lift prohibition on the use of electoral machines. As much as this seems like an implausible idea, a voting machine costing about $30 each has worked in India so similar rudimentary electronic systems could be employed to supplant the paper ballot system. At the very least, technologies exist to encrypt results from each polling unit and send them to an electronic collation platform via the 3G networks all over the country. This would eliminate paper-based collation centers and their susceptibility to manipulation.

The key pointers for electoral reforms are clear and visible. What is less visible is the fact that government has no interest and certainly no intention to reform the chaotic and unregulated bazaars we call elections. In the mad course of ‘elections’, party internal democracy is ignored, hundreds of billions of naira of public funds are used as slush funds, ‘fuel subsidy’ licenses and import duty waivers granted to ruling party apparatchiks, some domestic observers are compromised while foreign observers are hoodwinked. INEC is being told that its so-called autonomy is a joke, as the police and security agencies become ruling party’s agents and not surprisingly, the elections are rigged in favor of the highest bidders. Even the so-called state “independent” electoral commissions are beyond redemption and should be abolished. Their functions can be handled by a reformed INEC.

The end result – violent visits to the homes and businesses of the suspected riggers, arson, destruction and deaths that have happened in 1965, 1983, 1993 and 2011 – and these must stop.

If we are unhappy with the state of Nigeria today, if we desire to solve our security, unemployment and infrastructural challenges and put an end to the massive graft and ineptitude we see in our nation; if we want to build a country we can be proud of, the process must begin with genuine reforms of our electoral processes. What is at stake is too important to be left to the whims of a do-little government where even the most basic decision leads to Hamlet’s debacle: To be, or not to be?