Improving The Prospects For Free, Fair And Credible Elections In Nigeria Through Constitutional Alteration
Otive Igbuzor, PhD
PRESENTATION AT A SYMPOSIUM ORGANISED BY NILDS ON 10TH NOVEMBER, 2020
It has been recognized all over the world that democracy is the best form of government. Democracy is so important in the world today that it has become the driving force of development making many scholars to draw a nexus between democracy and development. Although different people put emphasis on different issues which they consider to be crucial to democracy, majority of people agree that liberal democracy contains some basic principles which include citizen participation; equality; political tolerance; accountability; transparency; regular, free and fair elections, economic freedom; control of the abuse of power; bill of rights; accepting the result of elections; human rights; multi-party system and the rule of law. However, it has been recognized that liberal democracy is facing a crisis of legitimacy and declining confidence in political leaders and institutions necessitating the need for democratic renewal through increasing citizen participation.
There is no doubt that elections play a vital role in a system of representative democracy. They are the primary mechanism with which to implement the principle of popular sovereignty. Ultimate authority rests with the people and the people delegate this authority to their elected representatives through the electoral process. It is through the exercise of franchise or the right to vote that citizens can perform this role. Unfortunately, from the history of elections in Nigeria from the colonial era till date, there are challenges for free, fair and credible elections and citizens are losing the right to vote or the vote counting towards the final electoral outcome. In many instances, candidates were declared winners without voting through judicialization of the electoral process. In other cases, people who did not stand for elections were declared winners. In the particular case of the 2007 elections in Nigeria, the loss of franchise by citizens was very widespread leading to what has been termed “Direct capture of the peoples’ mandate.”
In this paper, we examine the prospects for free, fair and credible elections in Nigeria through constitutional alteration. But first, we look at the concepts of constitution, constitutionalism and constitution making.
2. CONSTITUTION, CONSTITUTIONALISM AND CONSTITUTION MAKING
The concepts of constitution, constitutionalism and constitution making have attracted the attention of scholars over the years. Constitution has been defined in various ways. A Constitution has been defined as the embodiment of all the political, economic, social, cultural, religious and even historical forces conditioning the perception of a people at any given time and powerful enough to be isolated and accepted as a guide for future action. The constitution is a collection of norms and standards according to which a country is governed. A Constitution has also been defined as the totality of the rules and regulations, both legal and non-legal, which ordain, order, regulate and sustain the government of a given country. Others define a constitution as a set of principles, fundamental rules and practices of government, written and unwritten, which establishes the major organs of government, allocates to them their powers, defines the rights of the citizens and the relations between them and the state. Another popular definition is that which defines a constitution as the basic or fundamental law of the land, which contains the rules, conventions, and other practices by which a society governs itself. According to Justice Albie Sachs of South Africa, a constitution is the autobiography of a nation. A constitution has also been described as a contract, which describes the conditions under which the peoples of a nation co-exist.
From the above definitions, it is clear that a constitution may contain rules about how those who govern are to be selected or changed, how they are to behave in office and the relationship between the organs of government. It also shows the relationship between the government and the citizens and even amongst the citizens. The importance of constitution in a country cannot be overemphasized. As one scholar once noted, the good or bad fortune of a nation depends on three factors: Its constitution, the way the constitution is made to work and the respect it inspires.
Like constitution, constitutionalism has been defined in different ways by different people. According to Ojwang, constitutionalism means government that is subject to restraint, in the interest of the ordinary members of the community; government that is not arbitrary or totalitarian. But to S. A. De Smith, constitutionalism is:
the principle that the exercise of political power shall be bound by rules, rules which determine the validity of legislative and executive action by prescribing the procedure according to which it must be performed or by delimiting its permissible content …Constitutionalism becomes a living reality to the extent that these rules curb the arbitrariness of discretion and are in fact observed by the wielders of political power, and to the extent that within the forbidden zones upon which authority may not trespass, there is significant room for the enjoyment of individual liberty.
Constitutionalism has also been defined as adherence to the letter and spirit of the constitution. It upholds the supremacy of the constitution and requires that government officials must obey and operate within the framework of the law. It is important that a country should not only have a good constitution, but that the principles of constitutionalism are adhered to. As Okoth-Ogendo has argued, in Africa, there appears to be a commitment to the idea of constitution, yet at the same time, there is a rejection of the classical notion of constitutionalism. In any case, constitutionalism has to be understood in the context of power relations. Scholars have argued that the pursuit of constitutionalism goes beyond mere constitutional formalities to embrace such aspects as the acceptance, especially by the leaders to be bound by both the letter and spirit of the constitution; consistent constitutional practices especially with regards to the acquisition and retention of state power, and constitutional change; constitutional stability; as well as the substance of respect of human rights and the rule of law- and generally building a constitutional ethic or culture.
It has been posited that there is a new concept of constitutionalism, which should rest on the degree of accountability/responsiveness of the State and the and collective rights and freedoms that it guarantees. It has been argued that this new constitutionalism has become an integral part of the African political reform process. According to Ihonvbere, this new trend in constitutionalism has been encouraged by several factors. First, there is an increased support for democratisation and civil society by sub-regional, continental and international organizations, such as the Economic Community of West African states (ECOWAS), the Southern Africa Development Community (SADC), the Organisation of African Unity (OAU) now African Union(AU), the Commonwealth, the European Union (EU) and the United Nations. Second, there is a new acknowledgement all over Africa of the salience of pluralism and its centrality to the democratic process. Third, new coalitions and networks are emerging all over Africa as platforms for training new leaders, demystifying dictatorships, and articulating alternative agendas for democratisation. Furthermore, at the end of the cold war, there are no more superpowers that use all the resources at their disposal to maintain unpopular and illegitimate regimes. Moreover, there appears to be a consensus all over the world that military regimes are not only aberration and unacceptable but must be resisted. About four decades ago, the Assembly of the Heads of State of the OAU decided that they would not admit military rulers in their meetings. The Centre for Democracy and Development aptly captured the new trend when it stated:
“At every level on the continent, the idea has taken root that the Leviathans of Africa must no longer function as “virtual democracies” but must be refashioned to reflect the realities of their multifaceted societies. This has been reflected in the constitutional Conferences in Benin, Mali, Togo, Niger, the Democratic Republic of the Congo, and Cameroun in the early 1990s, in the successful constitutional arrangement of South Africa, and in the process-based constitutional commissions in Uganda and Eritrea……..Today, the struggle for constitutional reform in Kenya, Tanzania, Zimbabwe and Nigeria typifies the second liberation/independence struggle in the continent. The struggle has been led predominantly by civil society in Africa, since the political parties have proved either incapable or unwilling to push for constitutions that will promote just and equitable societies, being instead distracted by a chance to exercise power”
Constitution making, according to Issa Shivji, is a process of constructing a political consensus around constitutionalism. But according to Selassie, it is a process that brings people and their governments together to shape their future political life. It is a meeting point between the past, the present and the future.
A peoples’ constitution is a constitution made by the people. The people not only participate in the process of making a peoples’ constitution, but the content reflects the history, wishes and aspirations of the people. There is no doubt that the African people are determined to produce popular constitutions. As Abdul Raheem has pointed out, there are determined political groups, civil society organizations and other stakeholders who have placed constitutional change firmly on the agenda.
3. PROSPECTS FOR FREE, FAIR AND CREDIBLE ELECTIONS
Election has been defined as the process of choice agreed upon by a group of people. In other words, election is the process of voting or exercising franchise. Election is crucial because it gives the procedure that allows members of an organization or community to choose representatives who will hold positions of authority within it. In any democratic system, it is crucial that elections be free and fair. Mackenzie (1967) identified four conditions for the conduct of a free and fair election viz.:
(1) An independent judiciary to interpret the electoral laws.
(2) An honest, competent non-partisan electoral body to manage the elections.
(3) A developed system of political parties.
(4) A general acceptance by the political community of the rules of the game.
Another scholar Dundas (1994) argued that the assessment of an election as to whether it is free and fair or not can be done by answering the following questions:
(1) Is the legal framework adequate to ensure that the organization of free and fair multi-party elections be achieved in a given situation?
(2) Has the potential to contribute to the holding of free and fair multi-party elections been reflected in the provisions of the constitution and those of electoral laws?
(3) Have the courts been given the fullest possible role in assisting aggrieved persons who complain about failures in the procedures of major election processes?
(4) Are the election safeguards satisfactorily balanced with the facilitation measures in place and aimed at delivering high quality election services at cost effective levels?
Over the years, scholars have identified electoral standards which contribute to uniformity, reliability, consistency, accuracy and overall professionalism in elections. These standards include:
Franchise is very important because it is through franchise that the people operationalise the concept of sovereignty in a liberal democrcay. As clearly stated in section 14(2a) of the 1999 Constitution, it is hereby, accordingly, declared that sovereignty belongs to the people of Nigeria from whom government through this constitution derives all its power and authority. Non-adherence to electoral standards brings challenges to free, fair and credible elections and leads to the loss of franchise and eventually the loss of the peoples’ sovereignty.
We have always argued that for there to be free, fair and credible elections all stakeholders in the election process must perform their roles.
For the election management body to conduct credible, free and fair elections, we expect:
To contribute to the conduct of credible, free and fair elections, we expect political parties to:
To contribute to credible, free and fair elections, we expect the media to:
The security agencies can make a difference in the outcome of elections. It is therefore important that security officers display the highest level of integrity, neutrality, professionalism and sense of duty. The protection of human life, voters, electoral materials and officials and the preservation of lawful and orderly electoral processes are necessary for credible, free and fair elections. Without adequate security, there cannot be credible, free and fair elections. In the past, the security agencies have been accused of being used by politicians to intimidate opponents and to rig elections.
The primary role of security operatives including the Police in elections is to protect the integrity of the electoral processes and of the participants, institutions and outcome through:
6. Providing security for electoral officials at the voting and counting centres.
7. Ensuring the security of election materials at the voting centres and during transportation.
8. Ensuring the security of all electoral material, personnel and citizens during registration of voters, update, revision and any other electoral event.
To contribute to credible, free and fair elections, we expect security agencies to:
To contribute to credible, free and fair elections, we expect the civil society to:
To contribute to credible, free and fair elections, we expect citizens to:
According to the Chairman of the Independent National Electoral Commission (INEC), Prof. Mahmoud there are eight factors that can lead to free, fair and credible elections in Nigeria namely:
1. Enhancing the transparency and credibility of the electoral process in order to increase citizens’ confidence.
2. Entrenching internal democracy within political parties.
3. Ensuring inclusivity in the electoral process for marginalized segments of the society such as women, youths and persons living with disability.
4. Reducing the cost of elections.
5. Curbing the incidence of violence and sundry malpractices in the electoral process.
6. Ensuring that violators of the electoral laws are effectively sanctioned.
7. Deepening the deployment of technology in election
8. Increasing the autonomy/independence (both administrative and financial) of the electoral commission.
4. CONSTITUTIONAL ALTERATION AND ELECTIONS
The building of any nation requires action in different sectors to ensure security, provision of services, governance, economic stabilisation, democratisation and infrastructural development. The constitution can play a role in political and socio-economic engineering required for nation building. Constitutions are concerned with the source and regulation of state(public) power but also with overall framework of society and the dynamics of public and private power. Some scholars have argued that the constitution is an instrument of social change and social revolution.
It is important to give a brief history of the 1999 Constitution to situate its emergence properly and understand that it was an imposition by the departing military regime. On 11th November 1998, Gen Abdulsalami Abubakar inaugurated the Constitution Debate Coordinating Committee (CDCC) made up of 25 members headed by Justice Niki Tobi. Among the members of the Committee was General Sani Abacha’s legal Adviser Auwal Yadudu. The Committee was asked to submit its report by December 31st, 1998. Therefore, it had less than two months to co-ordinate debates, prepare and submit the report for a constitution to be made for a country of about 120 million people and 774 local government areas. The committee called for memoranda, organized some debates and traveled to selected places to listen essentially to traditional rulers and military Administrators. Workers organizations, students, mass organizations, civil society and the organized opposition were not involved in the debate. The committee submitted its report and the Armed Forces Ruling Council promulgated the 1999 Constitution, through Decree No 24 of 1999, a few days to the handing over of power to a civilian regime on 29th may, 1999. It is noteworthy that during the elections that brough the civilian administration to power, no one had seen the constitution.
As noted above, the 1999 Constitution was enacted by the military without participation of the Nigerian people. Both conservatives and progressives were unanimous that the constitution tells a lie against itself when it claimed in its preamble that “we the people of the Federal Republic of Nigeria….do hereby make, enact and give to ourselves the following constitution.” Although the 1999 Constitution is legal, it lacks legitimacy because it was not made by the people. Therefore, the only hope for the people of Nigeria is to either make a completely new constitution or significantly review the 1999 constitution in such a way as to constitute the ground norm for an inclusive economy.
Since return to civil rule in 1999, there has been attempts to alter the 1999 Constitution. At the beginning, there was attempt at comprehensive reform of the constitution from 1999 to 2011 but all attempts were unsuccessful until a piecemeal approach was adopted in 2011. Since then, there has been first, second, third and fourth alterations to the 1999 Constitution. Some of the major areas that have been amended include hand over of full powers to the Vice- President in the absence of the President; upgrading the status of the National Industrial Court to a court of superior record and guaranteeing the financial autonomy of the National Assembly and State Assemblies. At the 8th Assembly, the constitutional amendment bills that were assented to and signed into law include financial autonomy for state legislatures (which provided for funding of State Houses of Assembly directly from the consolidated Revenue Fund of the State); several provisions relating to elections (including to give the Independent National Electoral Commission (INEC) sufficient time to conduct run-off elections within 21 days (instead of 7 days); restriction on the tenure of the President or Governor to a single term if he/she completed the tenure of another President or Governor; and reduction of the age for certain offices (Not too Young to run Bill).
Scholars are in agreement that an adequate legal framework is a prerequisite for a credible, free and fair elections. There has been a lot of challenges with the conduct of elections in Nigeria from 1923 to date. The challenges include among other things irregularities which put the entire electoral process in doubt; problems with the legislative framework which puts constraints on the electoral process; the inability of various stakeholders to play their roles; lack of room by the electoral system for inclusiveness; lack of independence of electoral commissions; long process of election dispute resolution; irresponsible behaviour by politicians; thuggery and violence; and monetization of politics. One of the ways that has been used to address these challenges is through the electoral Act. The Electoral Act provides for the structure of INEC, its powers and guidelines for registering voters, procedures for conduct of elections, the registration and regulation of political parties, electoral offences and the determination of election offences. On return to civil rule in 1999, the first Electoral Act was passed in 2001. This was revised in 2002, 2006 and 2010. Indeed, there has always been attempt after every election to amend the electoral Act to take care of deficiencies noticed during the elections. The 2006 Electoral Act empowered INEC to appoint its Secretary, undertake voter education and prosecute offenders. The 2010 Electoral Act streamlined the powers of INEC to regulate political parties especially the process of nominating through party primaries; new ceilings for campaign expenditures; empowers INEC to deregister political parties based on the basis of conditions provided in the law and announcement and posting of election results at polling stations among other provisions.
After the 2015 Elections, there were attempts to amend the Electoral Law with the introduction of the Electoral Act Amendment Bill to among other things make the use of card readers legal. But the President withheld assent due to “some drafting issues” and the fact that the amendment was too close to the elections (less than three months). But the 9th Senate has introduced a modified version of the Electoral Act titled Electoral Act (Amendment) Bill 2019 (Senate Bill No 122) sponsored by Deputy President of the Senate, Senator Ovie Omo-Agege. It is important to note that following the 2015 general elections, the Supreme Court, held that INEC’s introduction of the innovative ‘Card Reader’ technology (for ACCREDITATION of voters) vide its Guidelines, Regulations and Manuals was unlawful. The apex Court essentially reasoned that the Commission usurped the legislative functions of the National Assembly by unduly enlarging its powers to make the said guidelines and regulations pursuant to the specific provisions of Sections 153(f) and 160 of the 1999 Constitution of the Federal Republic of Nigeria (as altered) and Section 153 of the Electoral Act, 2010 (as amended). However, many studies show that Nigerians overwhelmingly support the introduction of the ‘Card Reader’ technology to enhance the integrity of the elections. The Bill is therefore partly a response to a plethora of Supreme Court decisions inviting the National Assembly to make sensible amendments to the Electoral Act in this regard, and in many other respects. Other provisions of the bill include ensuring that the Act clearly forbids members of political parties from taking up employment or appointment in INEC; mandating INEC to publish the Voters Register for public scrutiny at every Registration Area and on its website at least seven (7) days before a general election; mandating INEC to suspend an election in order to allow a political party that lost its candidate before or during an election to conduct a fresh primary to elect a replacement or new candidate; granting agents of political parties the right to inspect original electoral materials before the commencement of an election; granting political parties that nominated candidates for an election a right (exercisable within a specified timeframe) to inspect its identity/logo appearing on samples of relevant electoral materials proposed to avoid incessant cancellation of elections due to ‘exclusion’ of parties from election due to printers’ errors or deliberate mischief of not including the logos of some parties on electoral materials; defining ‘overvoting’ to include situations where ‘total votes cast’ also exceed ‘total number of accredited voters’; providing greater clarity and transparency in the process of reaching the final announcement of election results, starting with sorting of ballots, counting of votes, etc; mandating INEC to record and keep relevant detailed information of results sheets, ballot papers and other sensitive electoral materials used in an election, with clear consequences for violation; overhauling Section 87 on Nomination of Candidates by Parties for Elections by prescribing maximum fees payable by aspirants and restricting nomination criteria strictly to relevant provisions of the Constitution; clarifying that under Section 138 (1)(a) of the Principal Act, a person shall not be deemed to be unqualified for an elective office and his election shall not be questioned on grounds of qualification if he meets relevant provisions of the Constitution, without more; giving greater effect to the guidelines, regulations and manuals made by the Commission for the conduct of elections; and providing sanctions for giving false information for purpose of registering a political party and ensure that failure by INEC and others to comply with any provision of the Act carries clear and adequate sanctions.
There is also another Electoral Act Amendment Bill, 2020 (SB 176) sponsored by Sen. Buhari Abdulfatai (Oyo North) for an act to empower the INEC to conduct and organize public debates for candidates of political parties gunning for the offices of President, Vice- President, Governors and Deputy Governors. The bill was first read on 19th November, 2019. The second reading was on 19th March, 2020 and was referred to the Senate Committee on INEC.
5. PROSPECTS FOR FREE, FAIR AND CREDIBLE ELECTIONS: BEYOND CONSTITUTIONAL ALTERATION
As alluded to above, it must be recognised that electoral reform will not bring about social change i.e. changes to the existing structures and social, political and economic arrangements. Ultimately, changes will take place if the objective and subjective conditions are conducive for widespread changes in the political arena. We have argued elsewhere that for change to occur in any society requires the presence of objective and subjective conditions. Objective conditions exist when situations are evidently abnormal with huge contradictions which can only be resolved by change. The subjective conditions are the organizational preparations required to bring about change. In our view, the objective condition is ripe in Nigeria. There is poverty in the midst of plenty. There are huge contradictions and gap between the poor and the rich. The country cannot continue in the way it is presently being run. Unfortunately, the subjective conditions are absent. There is no virile political party or movement that is committed to change neither is there a vanguard revolutionary organization to guide that change. There are no well organized democratic and popular organizations to support a change process. Although, there are individuals committed to and are driving change, the organizational support required for sustainability and great impact is lacking. The challenge is to build the organizations with dynamic and visionary leadership as well as a committed followership that is dedicated to change. Therefore, ongoing attempts to build the requisite organization, leadership and followership for change which must be assisted, nurtured and consolidated for the necessary change to occur in Nigeria.
While alterations to the constitution will help in the conduct of elections, ultimately, democracy and development in Nigeria will depend on a long term strategy of changing the nature and character of the state and the conduct of politics, political party organising and eventual capture of political power by democratic, radical and progressive forces in Nigeria. The present nature and character of the Nigerian state is such that political power has become the easiest method of primitive accumulation of capital. The resource curse and the oil economy have made rent seeking behaviour predominant leading to the collapse of Agriculture and industry. There is the need for a change in the nature and character of the state in a fundamental manner that will affect the political culture and development paradigm in the country. This will affect political party organising so that there will be ideologically rooted parties that will practise issue-based politics. Ultimately democrats and progressive elements will participate and change the colour of politics in Nigeria.
Finally, there is the need for some strategic approaches for the restoration of hope in Nigeria. First and foremost, there is the need to mobilise forces of change to make rigging of election difficult if not impossible. This will require a movement of patriotic and dedicated Nigerians that are opposed to the present political culture. The movement will educate and mobilise citizens to resist rigging of elections. A major strategy that the movement can use is effective communication especially to citizens on the dangers of lack of free, fair and credible elections to the entire society. Secondly, there is the need for the transformation of institutions of democracy. It must be recognised that democracy goes beyond the ritual of conducting elections. Democracy is a holistic concept that involves process, culture and attitude. This means that deliberate efforts must be made to inculcate democratic values and ethos including building electoral culture of electing prefects in primary and secondary schools, social clubs, town unions etc
Democracy is the best form of government and elections play a pivotal role in a system of representative democracy. Constitutions, constitutionalism and constitution making or alteration shape the political life of a nation. There are conditions for the conduct of free, fair and credible election in any country involving the active and credible engagement of the judiciary, election management body, political parties and acceptance of the rules of the game by the political community. However, for there to be free, fair and credible elections all stakeholders in the political process (election management body, political parties, security agencies, media, civil society organisations and citizens (voters) must perform their roles. There is therefore the need to go beyond constitutional alteration to have free, fair and credible election in Nigeria. There is the need for change in the nature and character of politics as well as the players in a way that can restore hope to the country.
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 I acknowledge the contribution of Prince Efe Duku, Special Adviser to the Deputy Senate President onPlenary and Legislative Matters to this section.
 Igbuzor, O. (2005), Perspectives on Democracy and Development. Lagos, Joe-Tolalu & Associates.
Otive Igbuzor, PhD. Founding Executive Director, African Centre for Leadership, Strategy & Development (Centre LSD) and Chief of Staff to the Deputy President of the Senate.