Enforcement Of Electoral Law And Electoral Violence In Nigeria

By

Dr. Muhammed Tawfiq Ladan

DEPARTMENT OF PUBLIC LAW,

FACULTY OF LAW,

AHMADU BELLO UNIVERSITY, ZARIA, NIGERIA.

A PAPER PRESENTED AT A 2-DAY SEMINAR ON ENFORCEMENT OF ELECTORAL LAW AND REDUCTION OF ELECTORAL VIOLENCE IN NIGERIA.

ORGANIZED BY:

AFSTRAG-NIGERIA, LAGOS IN COLLABORATION WITH INSTITUTE FOR DEMOCRACY IN SOUTH AFRICA.

VENUE: -   CHELSEA HOTEL, ABUJA

DATE: -     11 - 13 JULY 2006

INTRODUCTION

          The recently intensified worldwide struggle by people for free and fair elections, often at great personal risk, demonstrates how important this right has become to individuals everywhere. Countries and peoples across the globe have recognized that free and fair elections are a crucial point on the continuum of democratization and an imperative means of giving voice to the will of the people, which is the basis of governmental authority itself.

          To be free, participation in elections must be conducted in an atmosphere characterized by the absence of intimidation and the presence of wide range of fundamental human rights, such as, the rights to free expression, information, opinion, assembly, association and to protection from violence and all forms of discrimination. Political propaganda, voter education activities, political meetings and rallies, and partisan organizations are all common elements of the electoral process, and each must operate without unreasonable interferences for the conduct of the elections to be free. Similarly, judicial procedures must be insulated from corruption, manipulation, undue interference and partisan influence if they are to accommodate the necessary electoral functions of hearing petitions, objections and complaints.

          Moreover, laws to be enforced which might have the effect of discouraging political participation should be repealed. The prevailing atmosphere should be one of respect for the rule of law, human rights and should be characterized by an absence of intimidating factors.

          It is against this background that this paper seeks to achieve the following objectives: -

1.                 to promote conceptual clarification of key terms such as ‘enforcement’, ‘electoral violence’, ‘electoral law’, and ‘law enforcement’;

2.                 to establish the link between electoral violence and enforcement of electoral violence laws;

3.                 to analyze the provisions of the Electoral Act 2006 relating to electoral offences, election disputes settlement and enforcement of decisions by appropriate authorities;

4.                 and to conclude with some viable options for Nigeria.

1.       CONCEPTUAL CLARIFICATION OF KEY TERMS

          This part of the paper seeks to clarify the following key terms for easy understanding of the subject under discussion.

1.1     MEANING OF ‘ELECTORAL VIOLENCE’

The term “electoral”¹ is an activity or practice connected with the process of choosing a person or a group of people for a position, especially a political position, by voting.

          In electoral practices, therefore, there is a direct relation between the size of an electorate and the formalization and standardization of its voting practices. In very small voting groups, in which political encounters are face-to-face and the members are bound together by ties of friendship or common experience, voting is mostly informal and may not even require counting, because the sense of the meeting emerges from the group’s deliberations.²

          By way of contrast, in modern mass electorate, in which millions of individual votes are aggregated into the collective choice, formalization and standardization of voting practices and vote counting are the rule.

          This is necessary in order to guarantee that the outcome can be considered valid, reliable and legitimate. Validity means that the collective choice in fact expresses the sense of the electorate. Reliability means that each vote is accurately recorded and effectively counted into the total. Legitimacy means that the criteria of validity and reliability have been met; so that the result of the voting is acceptable and provides authoritative guidelines in subsequent political conduct.³

          Today, electoral practices around the world differ a great deal, depending not just on formal institutional arrangements, but even more on a country’s political culture.⁴

          The term “violence” is defined as any act, which causes or may cause any person physical, psychological, emotional, sexual, verbal or economic harm, whether this occurs in private or public life, in peacetime or in conflict situations.

          The term “Electoral violence” therefore means any act of violence perpetrated in the course of political activities, including pre, during and post election periods, and may include any of the following acts: thuggery, use of force to disrupt political meetings or voting at polling stations, or the use of dangerous weapons to intimidate voters and other electoral process, or to cause bodily harm or injury to any person connected with electoral processes.⁵

1.2     MEANING OF ‘ENFORCEMENT’

          The term ‘enforcement’ is the act of putting something such as a law into effect of the execution of a law or the carrying out of a mandate or command. Enforcement also refers to the act of causing the decision of a court or tribunal to take effect or to compel obedience to it. Judgements for money payments may be enforced by a writ of fi fa, garnishee proceedings, judgement summons, charging order, appointment of a receiver, order of committal or writ of sequestration. Judgements for possession of land may be enforced by writ of possession while the writ of delivery may be used to enforce a judgement requiring the delivery of goods. In case of a judgement requiring the performance of or abstention from an act, enforcement may be effected by a writ of sequestration or an order of committal.⁶

          Hence enforcement of electoral law is about giving effect to or ensuring compliance with the rules and regulations governing the conduct of elections: - pre, during and post. It refers also to matters relating to registration of political parties, regulating and monitoring the behaviour or activities of both political parties and politicians as  well as other electorates before, during and post election periods in order to ensure a free and fair elections in the interest of democratic  governance and respect for popular will.

2.       RELATIONSHIP BETWEEN ELECTORAL VIOLENCE AND ENFORCEMENT OF ELECTORAL LAWS

          This part of the paper seeks to: -

a)           examine critically the nature and causes of election violence in Nigeria;

b)            determine the role of law enforcement agents, especially the police, in combating electoral violence by enforcing electoral laws;

c)            analyze the provisions of the Electoral Act, 2006 relating to electoral offences, resolution of election disputes and role of INEC in the enforcement of decisions of election tribunals; and

d)           to conclude with some viable options for Nigeria.

2.1     NATURE AND CAUSES OF ELECTORAL VIOLENCE IN NIGERIA⁷

Violence has become part of the political culture in Nigeria such that all elections are virtually violence-ridden. That violence is manifest in all the three states of the election process: pre-election, during elections, and post-election period. A recent survey shows that the respondents agreed that pre-election violence often manifests in issues such as these problems of party formation, government sponsorship of certain party or parties, manipulation by political stalwarts, competition for power or candidature struggles even during the period before primaries, zoning problems in the selection of candidates or party executives, lack of ideology for many parties, interference of government in the affairs of electoral bodies, and sheer intolerance towards difference of opinion or ideology. That violence during elections is reflected in these: lack of security of elected posts, partisanship of traditional rulers, abuse of responsibility by election officials, institutional weaknesses (as seen, for instance, in the role of the police), the “winner takes – all” syndrome, which makes political contest a “do-or-die” affair, and the lucrative nature of political offices. That post-election violence is that which takes place even after the election process, and it is manifest in the following: government repression of failed candidates or politicians, especially civil servants; marginalization of areas controlled by the opposition; poor handling of election petitions by the Judiciary, especially election tribunals.

The dimensions of election violence in Nigeria are broadly grouped into physical and psychological. Physical election violence including physical attack, resulting into assault, battery, grievous bodily harm or death, disruption and other campaign, use of abusive language and other forms of violence inflicted on individuals and groups. Psychological election violence, including indiscriminate pasting of campaign posters, chanting slogans (particularly the use of local poets and singers to attack and abuse opponents), intimidation of public servants and businessmen for opposing the status quo or the incumbent administration, use of the media (especially state owned) to inflict psychological violence on the opposition and the denial of  access to such media by the opposition parties, reckless driving by those in a procession to campaign rallies, which intimidate other road users and the use of traditional ruler to intimidate the masses into electing particular preferred candidates.

It is evident from the above analysis that the violence that occurs either during electioneering campaigns or on the day of elections has broader physical and psychological dimensions. The physical aspects are the ones well known, which consist of attacks and assaults by one group of partisans on another, resulting in injuries, and often death. Candidates often recruit and arm gangs of youth, ostensibly for protection against the scheming of opponents, but in reality often used for premeditated attacks on opponents. At the other extreme, they include the use of hired assassins to eliminate political opponents perceived to be a threat to one’s chances of electoral victory.

The psychological dimensions of this violence are inflicted upon people by the aggressive, abrasive and anarchic conduct of candidates and their supporters both during campaigns and on election day. The ways in which campaign posters are massively produced and indiscriminately pasted, even on road traffic signs and on public building, etc as well as the manner by which convoys of reckless drivers, conveying candidates and their supporters to and from campaign rallies, obstruct traffic, cause accidents and injure pedestrians, are clear illustrations of this phenomenon, which although subtle are nonetheless quite devastating in the totality of their impact on peace, order, good neighbourliness, stability, human rights and well-being of society.⁸ They constitute psychological violence in the sense that they insult as well as assault the people’s and society’s moral sense of decorum, respectability and integrity, and they as well cause anxiety and apprehension  among the public any time campaign rallies are scheduled.

          The nature, extent and magnitude of violence associated with elections in this country are posing a serious threat to the national quest for stable democratic transition, as well as to the attainment of the long-term goal of consolidated democracy. Unless concerned groups of stakeholders work assiduously to deal with these problems, at this nascent stage, they could grow and assume monstrous proportions, such as could detail not just the Nigerian democratisation process, but also the Nigerian national project.⁹

          It is imperative at this stage therefore to examine some key factors responsible for election violence in Nigeria.

According to recent study, public perception of factors such as greed, electoral abuse, corruption of electoral practice or process, rigging of elections, electoral fraud, thuggery and abuse of power.

1.       Greed: The word “greed” has been defined as “wanting or strong desire for more power, money, possessions, etc, than a person needs”.¹⁰  In the context of election violence, the phenomenon of greed itself seems to be really critical and the greed translates not just from those who want to capture power and use its perquisites, but also those who are aspiring to replace them.

2.       Electoral abuses: Abuse of electoral practices is, of course, not limited to bribery or intimidation of the individual voter. The possibilities are endless, ranging from the dissemination of scurrilous rumours about candidates, and deliberately false campaign propaganda, to tampering the election machinery by stuffing the ballot box with fraudulent returns, dishonest counting or reporting of the vote, and total disregard of electoral outcomes by incumbent office-holders. The existence of these practices depends more on a population’s adherence to political civility and the democratic ethos than on the prohibitions and sanctions written into the law.¹¹

3.       Rigging of Election:  Election rigging is a criminal conduct of subverting an entire electoral process through massive organized fraud with the active participation of officials of the electoral body. Election rigging takes place in three phases: before, during and after elections. Experience has shown that rigging can take many forms. It could be by stuffing of the ballot box with fake ballot papers before the election day or on the election day, falsification of results and forgery of figures both at polling units and collation centres, voting by unregistered person and publication of false statement of the withdrawal of a candidate. Constructive ways of rigging elections include creating artificial scarcity of ballot papers in “safe” polling booths of the opponents, diversion or snatching of ballot boxes between polling booths and counting centres and abduction of returning officers. All these actions are usually perpetrated for gratification.¹²

Rigging an election remains the single most incendiary malpractice that can easily throw the entire election process into violent upheaval. In Nigeria’s experience, there were occasions when announcement revealed as winners candidates completely outside the expectations of the majority of the electorate. On such occasion, immediate blow-up and tumult can occur at the very point of collation and declaration of results. Such quakes can easily spread like bush fire throughout the country.¹³ Nothing stems it, usually, other than a military intervention.

4.       Abuse of power:  The tendency for abuse of legal power is evident from the understanding or the possible areas of operational conflict between the activities of law enforcement agents and protection of individual rights, especially under the guise of maintenance of law and order, peace and national security. It is an abuse of legal power for any law enforcement agency or government functionary to use the power conferred upon it by law inconsistent with the purpose of the law in society. Accordingly, it is an abuse of the legal power for any law enforcement agency to witch-hunt innocent citizens or to allow itself to be used in carrying out personal vendetta and harassment against fellow Nigerians.

          Abuse of legal power by all those in authority is a threat not only to the existence of law, but also to the corporate existence of society.  Relying on the Rule of Law ideal, abuse of legal power wears the cloak of legitimacy as it breeds instability and chaos in society.  Hence the exercise of legal power must be in the interest of the survival of human beings, respect for human rights and promotion of good government.¹⁴

5.                 Corruption in the Electoral Process: Simply put, corruption is the involvement in illegal, dishonest or wicked behaviour which is destructive of the moral fabric of society and devastating to the economic well-being of a nation.  Corruption is a catalyst to financial and economic crimes in contemporary Nigeria.  It includes bribery, fraud and other related offences.¹⁵

One of the earliest enactments against corruption is in the area of electoral offence.  Corrupt practices in the electoral process are indeed as old as the practice of democracy in the world.  The offences are usually characterized and defined.¹⁶

Corrupt practices in the electoral process are prevalent during registration of voters exercise and in the course of campaigning.

a)       Registration of voters:   A register of electors is an official list of the persons who are entitled to vote in the election to which the list relates, and the process of compilation of registers known as the registration of electors or registration of voters.¹⁷

          Corruption during registration of voters can occur either by wilful refusal to register qualified electors in given locations with the sole intention of disenfranchising them (which is to the obvious advantage of the opponent) or by the deliberate inflation of the register in a given constituency.

This occurs when money has been given to the registration officer by members of the opposing party or by prospective candidates.  The law recognises the possibility of criminal liabilities resulting from proven cases of corruption on the part of the registration officer. Given the enactment of the Corrupt Practices and Other Related Offences Act 2001, the dragnet in Nigeria is now wide enough to check such corrupt practices both from the point of view of the receiver and of the giver.

b)       Corruption in the course of campaigning:  Corrupt practices in the course of campaigning for an election is the most pronounced form of corruption in the electoral process. Corrupt practices during campaign¹⁸ are aimed at a definite result, and that is getting the voters to cast their vote for the candidate. In this regard, a discussion on corrupt practices during campaign will inevitably be stretched to cover the period of voting.

6.                 Corrupt practices as electoral offences

The common law offences of treating, bribery, undue influence and personation were once regarded as the only corrupt practices.  The position has since drastically changed.¹⁹ The list in Nigeria has grown to include the aiding and betting, counseling or procuring the commission of any of the offences known under common law.²⁰

a)       Treating: Treating prima facie is an offence under the electoral law in Nigeria.  This is regardless of the time of its occurrence:  that is, before, during and after election.

          Statutorily, the offence of treating is committed by any person who corruptly, by himself or by any other person either before, during or after an election directly or indirectly goes or provides or pays wholly or in part, the expense of giving or providing any food, drink, entertainment or provisions to or for any person for the purpose of influencing that person, or any other person to vote or refrain from voting, or on account of that person or any other person, having voted or refrained from voting at such election.²¹  Equally, an offence of treating is committed where a person being a voter corruptly accepts or takes money during such period.²²

          The above statutory definition shows that mens rea (state of mind) is an essential element in proving the offence of treating under the law.  It must be proved that there was a corrupt motive behind the transaction and that money was neither freely given nor gratuitously received.

          It is crucial to point out that the offence of treating has over the years been part and parcel of our electoral law.  Regrettably, no candidate has been tried and no election has been voided on grounds of treating.  Yet treating flourishes before, during and after election.  The attitude of the courts has not been helpful too.  The dictum of Justice Onyeama in the case of Kubeinje v. Edukugho²³ seem to represent the judicial standpoint on the issue of treating, which makes proof of it almost impossible.  By treating the testimony of witnesses as suspects on grounds of partisanship the court succeeds in alienating oral evidence as a basis for proving treating.

          It stands to reason from the view of Blackburn J. in the Hedley case,²⁴ that the question whether intention was to influence the voter must depend upon the circumstances and manner in which the refreshment was given, the time it was done and very much on the nature of the entertainment.²⁵  Certainly this does not sound encouraging when viewed against the background of Justice Onyeama’s dictum.  As Blackburn J. noted, proof of intention is a question of fact.  Consequently, when oral evidence is not given sufficient weight as in Bubeinje’s case, it becomes difficult to imagine what other type of evidence may be needed to prove intention for purposes of treating.

b)       Personation:      The law classifies the offence of personation in the electoral process as a corrupt practice.²⁶  The offence is committed by a person who applies for a ballot paper in the name of some other person, whether that name is in the name of a person living or dead, or of a fictitious person.  It is also an offence of personation for a person to vote in the name of some other person, whether the name is the name of a person living or dead, or of a fictitious person or having voted once at an election, votes a second time in his own name or in the name of any other person living or dead or of a fictitious person.

c)       Bribery:    Bribery remains one of the most obnoxious corrupt practices.  Statutorily, bribery during the electoral process is defined in a manner distinct from the definition in the Corrupt Practices and Other Related Offences Act.²⁷ Bribery, for the purpose of election, is committed by a person directly or indirectly by himself or by any other person on his behalf.

          It is interesting to note that the law in Nigeria provide for instances where a gift or offer is made even to a community as constituting bribery²⁸.  And by virtue of section 32 (2) the same law is clear that the offence of bribery can be committed even before an election²⁹.

          For bribery to be established in electoral process, it must be clear that the gift, loan, offer and promise must be made for purposes of inducing any voter to vote or refrain from voting at any election.  This was the attitude of the Pakistani Judiciary in a host of cases³⁰.  It is not clear whether a promise by a candidate at such meetings can ever constitute the offence of bribery in Nigeria.  It is interesting to note that an election has been declared invalid in Nigeria because the candidate committed an offence of bribery.³¹

d)       Undue influence:  The Nigerian Electoral Law undoubtedly inherited the British definition of undue influence.  The offence of undue influence according to the statute is committed under section 31 of the Presidential Election Act,³² where a person directly or indirectly or by any other person on his behalf, makes use of or threatens to make use of any force, violence or restraint, or who inflicts or threatens to inflict by himself or by any other person, any temporal or spiritual injury, damage, harm or loss on or against any person in order to induce or compel that person to vote or refrain from voting or on account of such person having voted or refrained from voting at an election.

          Furthermore, the offence is committed by anyone who by abduction, duress or any fraudulent device or contrivance impedes or prevents the free use of the vote by a voter or thereby compels, induces or prevails upon any voter either to give or refrain from giving his vote.

          The above definition is really very wide in scope.  It includes all forms of physical, temporal or spiritual influence with a view to affecting the free exercise of the franchise.  It is also pertinent to mention that it may be exercise by any “person” whether directly or indirectly.  However, it must be observed that the use of the adjective “undue” to qualify the word “influence” suggests that not all kinds of influence are prohibited by Law.³³

          In Nigeria, apart from religious leaders of different persuasions, there abound other persons capable of exerting undue influence.  They include traditional rulers, employers of labour, landlords and functionaries of the government in power.

          Apart from actual use of force or evidence,³⁴ a threat of force or violence is equally an offence under the electoral law.  A threat of violence must be deliberately uttered with the intention of carrying it into effect and not in a moment of anger.³⁵  In other words, the threat must be serious.  It s immaterial whether the person using the threat had the power to carry it out or not.³⁶ Besides the threat, use of force and violence must be directed at the person.  The court attaches great importance to the actual words spoken in determining the seriousness of a threat.  In the case of Jagan Brasad v. Krishnadatt,³⁷ it was alleged that a ruling prince who commanded great influence, among the Jat tribe said in a public meeting that those who voted for the appellant “would go to hell”.  The court held that the words “go to hell” as used in the context amounted to a threat and as a result the exercise of undue influence on the voters.

          Proof of threat is conclusive once the method of inducement adopted conveys to the mind of the person addressed that no compliance with the wishes of the person offering the inducement may result in physical or spiritual harm to himself or to any other person in whom he is interested.

          Temporal undue influence can assume the shape of threat of dismissal from a lucrative employment or threat of eviction of a tenant.³⁸

          Undue exercise of spiritual influence is statutorily prohibited.  This is not restricted to priests but extends to Muslim religious leaders and traditional rulers capable of exercising spiritual influence over their subjects.  In the case of Fagbe v. Etchie,³⁹ corrupt practices were alleged on the part of Olu of Warri and not to vote for the petitioner who belonged to the opposing party.

          The petitioner alleged that in order to achieve the desired result, the Olu set out his chiefs with instructions to invoke the wrath of the Itsekiri tribal god on any Itsekiri voting for the petitioner or failing to vote for the respondent.  According to the petitioner, the chiefs carried out these instructions and the invocations operated in the minds of the illiterate villagers in such a way as to deprive them of any will to freely exercise their choice.

          Onyeama Ag. Judge dismissed the petition for want of proof of agency between the Olu of Warri and the respondent.  The same decision was reached in the case of Kubeinje v Edukugho⁴⁰ where again the Olu of Warri was alleged to have exercised undue influence.  These cases, however, have proved sufficient authority to the fact that traditional rulers exercise some spiritual influence over their subjects.

          Further, the law considers as undue influence an exercise of temporal or spiritual influence, which results in damage, harm or loss upon or against any person.

By virtue of the Electoral law, a person is guilty of undue influence if the abduction, duress or any fraudulent device or contrivance, he impedes or prevents the free use of the vote. Abduction is not defined in the statute. The dictionary meaning of the word “abduct” is to kidnap or take away by illegal force or fraud.

          In the context of election, such abduction must be geared towards impeding the free exercise of franchise.⁴¹

Fraudulent device and contrivance as constituents of undue influence are not popular means of challenging elections.  Hence the paucity of case law.  However, it may be said that abduction and duress can equally be classified as fraudulent devices or contrivance.  It is important to note that the words “contrivance and device are qualified by the word “fraudulent”.  Therefore, in order to prove the offence of undue influence based on any such device or contrivance, fraudulent intent must of necessity be established.⁴²

e)       Punishment for corrupt practices in electoral process:  The statute prescribes various degrees of punishment for the corrupt practices of personation, bribery, treating and undue influence.  What is common to all is that in addition to payment of fine or imprisonment or both, the law further stipulates that a person who commits the offence of personation, treating, undue influence or bribery or of aiding, abetting, counseling or procuring the commission of any of these offences shall not be eligible during a period of 5 years from the date of his conviction to be:  (a) registered as a voter or to vote at any election; (b) elected under this decree or if elected before his conviction, to retain his seat.

          It is evident from the above analysis that corruption in the electoral process can only be reduced where good faith effort is made to ensure that the society and indeed the people can no longer be tempted by the lure of lucre to indulge in corrupt practices.

2.2            ROLE OF LAW ENFORCEMENT OFFICIALS (POLICE) IN COMBATING ELECTORAL VIOLENCE/ENFORCING ELECTORAL LAW

Violence, intimidation and coercion hinder public confidence in an electoral process and increase civil unrest.  In societies such as Nigeria, with a long history of electoral violence, the cost can be quite high.

Law enforcement officials, therefore, have an important role to play in the prevention and control of these acts.  At the same time, they have to maintain a balance between the need for electoral security and maintenance of order, and non-interference with the rights of those participating in the elections.

In the execution of law and order functions during elections, especially in relation to the prevention and control of electoral violence, the average law enforcement agent exercises a lot of discretionary powers, which have implications on human rights.⁴³

One of the primary functions of law enforcement officials as stated in the Nigerian Police Act is the preservation of law and order.⁴⁴ This function is very important during elections. If Law and order are not maintained, elections can hardly be peaceful and the result may not be acceptable to the voters. Law enforcement officials are expected to ensure that the voting procedure on election days, published by the Independent National Electoral Commission (INEC), takes place peacefully.⁴⁵         

Law enforcement officials on election duty should ensure that electoral offences published by INEC are either prevented or controlled or do not take place on election days. These offences range from canvassing for votes; persuading any voter not to vote for any particular candidate or not to vote at all at the election; shouting slogans concerning the election; being in possession of any acid, offensive weapon or missile or wearing any dress or having facial or other decorations which in many event is calculated to intimidate voters; loitering without lawful excuse after voting or after being refused to vote; to the offence of voting or attempting to vote, when one’s name is not in the register of voters; etc.

In the performance of his/her duty every law enforcement official is expected to exhibit certain standard of behaviour and discipline which distinguishes him or her as an agent of the law. These standards which are simplified below are contained in sections 343 to 388 of the Police Act and binds every police officer in Nigeria:

1.       Every police officer should try his best to maintain the good name of the Nigeria Police Force, and to further good relations with the public.⁴⁶ 

1.                 Every police officer should obey all lawful orders; reject corruption in the exercise of his police duties; ensure that his general behaviour is good and acceptable to the public; etc.⁴⁷

2.                 Every police officer should, among other things, not take sides in a dispute and avoid expressing a feeling of revenge, or the showing of vindictiveness towards offenders; be upright in his handling of investigations and in the giving of evidence.⁴⁸

3.                 Every police officer shall be personally answerable for any misuse of his powers, or for any act done in excess of his authority⁴⁹, should have a good working knowledge of Nigerian laws and First Aid, etc.⁵⁰ Further, every Nigerian from the age of 18 years and above has the right to vote during elections. It is the duty of every law enforcement official on election duty to ensure that this right is protected. Limitations on the right to vote should be only those contained in INEC guidelines and necessary to secure respect for the right of others and to maintain public order.

Therefore, every law enforcement official in the discharge of his or her electoral functions should: (a) not unlawfully discriminate against any voter on the basis of race, gender, religion, language, colour, political opinion, national origin, poverty, birth, or other status,⁵¹ (b) protect the rights of women to vote in all elections on equal terms with men;⁵² (c) not consider it unlawful to enforce certain special measures designed to address the special status and needs of women, the sick, the elderly, and other voters that need special treatment in accordance with international human rights standards;⁵³ (d) protect women from all forms of violence during elections, either physical or psychological;⁵⁴ (e) take adequate official steps to prevent the victimization or intimidation of voters,⁵⁵ etc.

          On the use of force in controlling electoral violence, it is worth noting that every voter has the right to life, security of person and freedom from torture and other degrading treatment and punishment.⁵⁶ Accordingly, it is unlawful for law enforcement officials on election duty to use excessive force in dealing with voters, as it can escalate the situation and end up scaring away eligible voters who should be protected.

          Therefore: (a) non-violent means should be tried first before resort to the use of force; (b) force should be used only when strictly necessary; (c) force should be used only for lawful law enforcement purposes; (d) no exceptions or excuse shall be allowed for unlawful use of force; (e) use of force during elections should always be proportional to lawful objectives; (f) damage and injury should be minimised.⁵⁷

          In terms of arrest and detention during elections, it is noteworthy that everyone has the right to personal liberty and it is unlawful to subject any voter to arbitrary arrest and detention. However, if there is no other lawful means for law enforcement officials on electoral duty to check electoral offences as published by INEC, arrest and detention might be allowed under the following conditions: (a) anyone who is arrested should be told the reasons for arrest in a language that he understands; (b) anyone who is arrested should be charged to court within the constitutional stipulations; (c) anyone who is arrested has the right to remain silent or avoid answering questions until he consults a lawyer or any other person of his choice; (d) anyone who is arrested has the right to trial within a reasonable time, or to release; (e) the family of the arrested person shall be immediately notified of  his arrest and place of detention; (f) no detainee shall be subjected to torture or to other cruel, inhuman or degrading treatment or punishment, or to any form of violence or threats; (g) juveniles shall be separated from adults and women from men in detention; (h) detainees have the right to contact with the outside world, to visit from family members, and to communicate privately and in person with a legal representative; (i) detainees shall be kept in humane facilities, designed to preserve health and dignity, and shall be provided with adequate food, water, shelter, clothing, medical services, exercise and items of personal hygiene; (j) a detainee shall not be compelled to confess or to otherwise incriminate himself or another person.

Furthermore, law enforcement officials have a duty to ensure that law and order do not break down during elections. In the event of a civil disorder: (a) all measures they adopt for the restoration of order should respect human rights of voters; (b) restoration of law and order during elections should be achieved without discrimination; control of civil disorder during elections should be solely for the purpose of securing respect for the rights and freedoms of other voters, and maintaining public order; (d) no exceptions shall be allowed with regard to the rights to life and to freedom from torture in the control of civil disorder by law enforcement officials; (e) victims of human rights violations and abuse of power during elections should have access to mechanisms of justice and prompt redress, and be informed of their rights to seek for redress, protection and to receive any necessary legal, material, medical and social assistance, and should be informed of their availability; (f) victims should be allowed to present their views and feelings on all matters where their personal interests are affected.

2.3            ANALYSIS OF PROVISIONS OF THE ELECTORAL ACT, 2006 RELATING TO ELECTORAL OFFENCES, ELECTION DISPUTES SETTLEMENT AND ROLE OF INEC IN THE ENFORCEMENT OF DECISIONS OF ELECTION TRIBUNALS.

This part of the paper seeks to analyse the provisions of the Electoral Act, 2006 in respect of the following issues: -

2.3.1    LEGAL MEASURES AGAINST ELECTORAL VIOLENCE/ELECTORAL OFFENCES

There is a gamut of provisions of the criminal and civil law which could check electoral violence. The offences of murder, manslaughter, assault occasioning grievous bodily harm and assault can always catch   up with perpetrators of electoral violence. The tort of assault and battery and false imprisonment can be invoked against perpetrators of electoral violence.

          The Electoral Act 2006 specifically has several provisions targeted against electoral violence. Section 97(5) of the Act provides that no political party or member of a political party shall retain, organize, train or equip any person or group of persons for the purpose of enabling them to be employed for use or display of physical force or coercion in promoting any political objective or interests, in such manner as to arouse reasonable apprehension that they are organized, trained or equipped for that purpose. By section 97(6) no political party, candidate or any person shall keep or use private security organization, vanguard or any other group or individual by whatever name called for the purpose of providing security, assisting or aiding the political party or candidate in whatever manner during campaigns, rallies, processions or elections. The punishment prescribed for contravention of the above subsections in the case of an individual, is a fine of N50, 000.00 or imprisonment for a term of six months. In the case of a political party the fine is N500, 000 in the first instance, and N1, 000,000 for any subsequent offence.58

          By section 98 of the Act no candidate, person or group of persons shall directly or indirectly threaten any person with the use of force or violence during any political campaign in order to compel that person or any other person to support a political party or candidate. Breach of this provision will attract a fine of N50, 000 or imprisonment for a term of six months in the case of an individual; or a fine of N250, 000.00 in the first instance, and N500, 000.00 for subsequent offence, in the case of a political party.5⁹

          Disorderly behaviour at political meetings is an offence. By section 126 of the Act, any person who at a political meeting after the date for an election has been announced, acts or incites another to act in a disorderly manner for the purpose of preventing the transaction of the business for which the meeting was convened; or has in his possession an offensive weapon or missiles, commits an offence and is liable on conviction to a fine of N100, 000.00 or imprisonment for 12 months or both.

          Section 135 of the Act prohibits disorderly conduct at elections. By that section, any person who at an election acts or incites others to act in a disorderly manner commits an offence and is liable on conviction to a fine of N100, 000 or imprisonment for a term of twelve months or both. It is also an offence under section 136 when done on an election day, to be in possession of any offensive weapon or wear any dress or have any facial or other decorations which in any event are calculated to intimidate voters60 or to snatch or destroy any election materials.61   Punishment for these offences is N50, 000 or imprisonment for six (6) months.62

          Section 138 of the Electoral Act prohibits undue influence. It provides as follows:

A person who:

(a)      Directly or indirectly, by himself or by another person on his behalf, makes use of or threatens to make use of any force, violence or restrain;

(b)      Inflicts or threatens to inflict by himself or by any other person, any temporal or spiritual injury, damage, harm or loss on or against a person in order to induce or compel that person to vote or refrain from voting, or on account of such person having voted or refrained from voting; or

(c)      By abduction, duress, or a fraudulent device or contrivance, impedes or prevents the free use of the vote by a voter or thereby compels, induces or prevails on a voter to give or refrain from giving his vote;

(d)               By preventing any political aspirants from free use of the media, designated vehicles, mobilization of political support and campaign at an election commits an offence of undue influence and is liable on conviction to a fine of N100, 000.00 or imprisonment for three years.

          Article 13(1) of the African Charter on Human and People's Rights (Ratification and Enforcement Act (Cap 10 Laws of the Federation, 1990) provides that every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with provisions of the law.  Electoral violence is a negation of this right.

Part VIII of the Act (sections 124-139) deals with electoral offences for which the police may be called upon to prosecute in the exercise of its powers under the Police Act. The part is concerned with such offences as offences in relation to registration, offences in request of nomination, disorderly behaviour at political meetings, improper use of voters’ cards, improper use of vehicles, impersonation and voting when not qualified, dereliction of duty, bribery and conspiracy, requirement of secrecy in voting, wrongful voting and false statement, voting by unregistered person acting or inciting others to act in a disorderly manner during the conduct of an election, treating and undue influence. The Act also prohibits the commission of any of the following acts on election day:

(a)                Canvass for votes;

(b)                Solicit the vote of any voter;

(c)                 Persuade any voter not to vote for any particular candidate;

(d)               Persuade any voter not to vote at the election;

(e)                Shout slogans concerning the election;

(f)                  Be in possession of any offensive weapon or wear any dress or have any facial or other decoration which in any event is calculated to intimidate voter;

(g)                Exhibit, wear or tender any notice, symbol, photograph or party card referring to the election;

(h)                Use any vehicle bearing the colour or symbol of a political party by any means whatsoever;

(i)                  Loiter without lawful excuse after voting or being refused to vote;

(j)                   Snatch or destroy any election materials;

(k)                Blare siren.

2.3.2    ELECTION DISPUTES SETTLEMENT AND THE ROLE OF INEC IN THE ENFORCEMENT OF ELECTION TRIBUNALS’ DECISIONS

Election petitions are common phenomenon in any process and arise where elections are generally perceived to be fraught with irregularities or are not free and fair. Incidences of election disputes may stem from the outright contravention of the constitutional provisions of electoral laws for the conduct of elections; improper screening of candidates for elections; accreditation at polling stations; voting; collation to announcement of results.

The Nigerian Constitution⁶³ and the Electoral Act⁶⁴ are replete with provisions on how, where and when electoral disputes are to be resolved. The Supreme Court of Nigeria is at the apex of the hierarchy of courts in the judicial system in Nigeria. As the highest court of the land, the Constitution vests in the court, very important constitutional functions which it exercise in its original and appellate jurisdiction.

Although the Supreme Court is not vested with original jurisdiction in the determination of election petitions, it however exercise appellate jurisdiction in certain cases.⁶⁵ As the highest court of the land, the court’s pronouncements have had wide-ranging ramifications on the determination of election petitions both at the Election Tribunals and the Court of Appeal

Over the years, the Supreme Court has decided electoral matters, both in the present democratic era and during the  second republic, many of which were sensitive and have been adjudged to have been based on  expediency rather than the altruistic interpretation of the law given the exigencies of each circumstance.⁶⁶

Jurisdiction of a duly constituted court or tribunal denotes the extent of powers given to it by statute to determine issues between persons seeking to benefit from it processes by either allusion to the subject matter of the issue, the persons joined in the issues and the kind of relief sought.

The idea of jurisdiction therefore deals with the legal right by which properly constituted courts or tribunals will exercise their authority to hear and determine issues within powers or the circumstances in which they will grant a particular kind of  relief which they have power to grant.

The jurisdiction of the courts or tribunals to determine election petition is statutory, both the Constitution and the Electoral Act have made copious provisions for the determination of election petitions.

Section 285 of the 1999 Constitution provides for the establishment and jurisdiction of election tribunals.⁶⁷ The Constitution further provides under that section for the establishment of lection tribunals in each state to be known as Governorship and Legislative Houses Election Tribunals, which shall, to the exclusion of any court or tribunal have original jurisdiction to heart and determine petitions as to whether any person has been validly elected to the office of Governor or Deputy Governor or as a member of any legislative house.⁶⁸

Section 239(1) provides for the original jurisdiction of the Court of Appeal to the exclusion of any other court of law in Nigeria to hear and determine any question as to whether any person has been validly elected to the office of President or Vice President. The Court of Appeal also has appellate jurisdiction in the determination of appeals from decisions of the National Assembly Election Tribunals and Governorship and Legislative Houses Election Tribunal on any question as to whether any person has been validly elected as a member of the National Assembly or of a House of Assembly of a state or to the office of Governor or Deputy Governor of a state. In any of the above cases, the decision of the Court of Appeal shall be final.⁶⁹

The appellate jurisdiction of the Supreme Court with regards to election petitions is provided in section 233(2) (e) (i). by that provision, the Supreme Court has appellate jurisdiction on decisions on any question whether any person has been validly elected to the office of president or vice-president of the country.

Similarly, the Electoral Act provides for the mode and means to be used in the resolution of election disputes. Section 131 of the Electoral Act⁷⁰  provides as follows: -

1.     No election and no return at an election under this Act, shall be questioned in nay manner other than by a petition complaining of an undue election or undue return (in this Act referred to as an “election petition”) presented to the competent tribunal or court in accordance with the provisions of the Constitution or of this Act, and in which the person elected or returned is joined as a party.

2.     In this section “tribunal or court” means

a)     in the case of presidential election, the Court of Appeal; and

b)      in the case of any other elections under this Act, the Election Tribunal established by the constitution or by this Act.

From the above provisions, the Supreme Court is not specifically mentioned in the Act, but inference can be drawn from the provisions of competent tribunal or court in accordance as noted earlier, has provided under section 233 for the appellate jurisdiction of the Supreme Court to determine election disputes for the president and vice-president.

THE JUDICIARY

          The judiciary, particularly at the federal level, has played a pivotal role in election related matters including the registration of political associations. Due to the role the judiciary has played, potentially violent situations have been doused through its landmark judgments on election matters. The function of the judiciary in our legal system is to determine disputes between individuals or between the Government and any of its agencies and the citizens; or between two different states, or between the Federal Government and the State Government. It is generally perceived as the last hope of the common man, not because the judiciary is for only the common man, but rather, if all else fails, the judiciary can always be relied upon to do justice between the contending parties. In the absence of a means of adjudication, therefore, which the judiciary represents, the law of the jungle will prevail where the strong oppresses the weak.  All that is being said is that in all the constitutions of modern nations, the governmental institution of the judiciary is the necessary bulwark against the oppression and subjugation of the weak by the strong. Created under section 6 and chapter VII of the 1999 Constitution, the Nigerian Judiciary has played an activist role in the resolution of electoral disputes and other related matters. But for the role played by the courts in the latest democratic experiment of Nigeria, the country would have degenerated into a state of anarchy and violence. One of such roles played by the Judiciary is its decision on political associations seeking registration as political parties which is a pre-requisite for presentation of candidates for elective offices for the 2003 general elections in Nigeria. Preparatory to the 2003 general elections, the Independent National Electoral Commission (INEC) decided to register more political parties to participate in the said elections. For that purpose, INEC issued out some guidelines that are more extensive than those prescribed by section 222 of the 1999 Constitution. At the end of the exercise, three other associations were registered as political parties. The unregistered associations, feeling aggrieved, then approached the Court for, amongst others, the interpretation of section 222 of the Constitution vis-à-vis the fresh guidelines issued by INEC. This case is reported as INEC & Anor.v. Musa & Ors.⁷¹  The Supreme Court held that the fresh guidelines issued by INEC stood on their own and were not related to section 222. Therefore, the guidelines could not stand and were struck out. In reaction to the judgment, INEC had to reverse itself by registering the political associations that were earlier denied registration as political parties. The effect of the additional registration was to broaden the base of political participation by admitting new parties into the electoral process, thus assuaging the feelings of political associations who originally felt aggrieved that they were denied registration. Yet another landmark decision of the Supreme Court in the march towards entrenchment of constitutional democracy in Nigeria, devoid of electoral violence, is the case of A.G, Abia State & 35 Ors. v. A.G, Federation.7² As part of the preparations towards the next general elections in 2003, the National Assembly passed a new Electoral Act 2001. Section 111(1) of the Act provided that there shall be elected for each Local Government in the Federation a Chairman and a Vice-Chairman. Sub-section (2) also provided that there shall be elected from every ward in a Local Government, a Councillor. The Act also sought to increase or alter the tenure of the elected Local Government officials. Under the 1999 Constitution, section 7 thereof, the system of local government by democratically elected Local Government Councils is guaranteed; and accordingly, the government of every state, shall subject to section 8 of the Constitution, ensure their existence under a law which provides for the establishment, structure, composition, finance and functions of such Councils. The Plaintiffs challenged the power of the National Assembly, Defendants herein, to alter the tenure of the elected Local Government officials on the ground that such exercise of power was ultra vires the National Assembly since it infringed on their powers under section 7 thereof. The Court, per Kutigi JSC, held that the National Assembly has no power whatsoever under item 11 of the concurrent legislative list or indeed under any provision of the Constitution, to increase or alter the tenure of the elected officers of the Local Government Councils. Only the House of Assembly of a state has such power in view of the provisions of section 7 subsection (1) of the Constitution and item 12 of the concurrent legislative list in Part II of the second schedule to the Constitution.

Yet another significant case in the annals of democratic rule in the Third Republic is the case of National Assembly v. The President of the Federal Republic of Nigeria & 2 Ors.73 In the first four years of civilian rule, there were frequent conflicts between the leadership of the National Assembly and the Presidency. The differences between the two were palpable, so much so that it created tension in the body politic. In the year 2002, less than a year before the next general elections, the National Assembly commenced the passage of a new Electoral Bill 2002 meant to replace the former one of 2001. In the real sense, however, the 2002 Act was meant to checkmate the President by providing in section 15 that all the elections were held on the same day. The fear of the legislators was that if the elections were staggered, as was the case in 1999, the President might use the enormous resources at the disposal of his office to influence the outcome of the elections, to the detriment of his adversaries in the National Assembly. Section 15 was therefore meant to checkmate this because in the reckoning of the legislators, a level playing field will be created for all candidates if the elections were held on the same day. The National Assembly passed the Bill, but the President, in the exercise of his constitutional right, vetoed the Bill by refusing to assent to it. The National Assembly, after the expiration of the statutory period within which the President is to assent to the Bill, overrode the President’s veto by a motion, which was passed by at least two-thirds majority of the members present. Through an originating summons, the Respondents challenged the provisions of section 15 in that the said provisions was ultra vires the powers of the National Assembly and in conflict with the 1999 Constitution which empowers the Independent National Electoral Commission to fix the date of elections. The trial Court held in favour of the Respondents. Dissatisfied with the decision, the Appellants appealed to the Court of Appeal. At the latter Court, the Court affirmed the decision of the lower Court, per Oduyemi JCA, held that,

All in all, I agree with the reasoning in the judgment of the lower court and with the conclusion in the judgment that section 15 of the Electoral Act 2002 is inconsistent with the specific provisions of the Constitution of the Federal Republic of Nigeria, 1999 in sections 132(1), 76(1), 178(1), 116(1), 78, 118 and item 15(a) of the Third Schedule, that it infringes on the absolute discretion vested by the Constitution on the 3^rd Respondent with regard to the fixing of dates for election into the various offices concerned.⁷⁴

ENFORCEMENT

There should be clear rules on the speedy implementation of the decisions of the election dispute resolution institutions, because proper and speedy implementation of the judgments of the courts/tribunals is critical to the effectiveness of the entire electoral dispute mechanisms.⁷⁵ The Electoral Law apart from providing for the establishment of election dispute resolution organs should also provide for the mechanism for the resolution of election disputes, and for timely enforcement of the decisions of the dispute resolution institutions because the powers of these bodies will be meaningless without functional mechanisms for the enforcement of decisions. The laws should provide for specific rules of enforcement for law enforcement agents. One suggestion is that electoral tribunals and courts with jurisdictions to determine electoral disputes should be vested with powers to enforce the judgments within a reasonable time.⁷⁶

To ensure that there is no vacuum created in administration of public institution as a result of the judgment of the court/tribunal, the 2002 Electoral Act provides that if the electoral tribunal or court determines that a candidate returned as elected was not validly elected, and if notice of appeal against that decisions is given within 21days from the date of the decision of the election tribunal or the court, the candidate returned as elected, shall notwithstanding the contrary decision of the  Election tribunal or court remain in office pending the determination of the appeal.⁷⁷

Section 138(2) further provides that if the election tribunal or the court, as the case may be, determines that a candidate returned as elected was not validly elected, the candidate returned or elected shall notwithstanding the contrary decisions of the election tribunal or court, remain in office pending the expiration of the period of 21 days within which an appeal may be brought. The sections provide, in essence, that the incumbent shall still occupy an office while a petition subsists, and for 21 days, to enable the incumbent to appeal if he so desires.

Section 27(1) of the first schedule to the Act provides that at the end of the trial, an Electoral Tribunal or court shall determine any of the following:

1)     Whether a person whose election or return is complained of, or any other person, and what person, was validly elected,

2)     Whether the election was void.

In each case, the court/tribunal shall certify the judgment of the court/tribunal to the Resident Electoral Commissioner, or to the Commission for implementation or enforcement. The court or tribunal that heard the petition has a duty to send a certified copy of the judgment to the Independent National Electoral Commission for enforcement. Enforcement could be by holding another election where the court/tribunal declared an election void or by informing the appropriate authority to swear in a person the court/tribunal held to be the winner. Thus, section 27(2) provides that where a tribunal or court has determined an election invalid and where there is no appeal pending, a new election shall be held by the Commission and such election shall hold not later than three (3) months from the date of the judgment.

Section 136(1) also provides insights to what the contents of a judgment of a court or electoral tribunal would look like.  It provides that subject to sub-section 2, if the tribunal or the court determines that a candidate who was returned as elected was not validly elected on any ground, the Tribunal or the court shall nullify the election. Subsection 2 qualifies this provision by further providing that if the tribunal or the court determines that a candidate who was returned as elected was not validly elected on the ground that he did not score the majority of valid votes cast at the election, the Election Tribunal/Court shall declare the candidate who scored the highest number of valid votes cast at the election and satisfied the requirements of the Constitution and the Act, the winner. On any ground as used in this section refers to any of the grounds provided in section 134 of the Act upon which an election can be challenged. These are the grounds upon which the court/tribunal shall base its judgment when nullifying an election.

Whether the result of an election is nullified, or the person with the highest votes was declared winner, or the person whose election or return is complained of or any other person was validly returned or elected, or the election was void, the court or election tribunal as the case may be shall forward a certified true copy of its judgment to the resident electoral commissioner of the state or the Commission for enforcement. The commission shall thereafter take subsequent actions to implement the judgment.

2.3.3    ENFORCEMENT OF FUNDAMENTAL RIGHTS: - IS THE SPECIAL PROCEDURE EXCLUSIVE?

In both the 1960 and 1963 Constitutions, there were provisions for the making of rules in respect of applications for the enforcement of human rights. While the 1960 Constitution empowered the parliament to make the rules, the 1963 put the burden on the Chief Justice with the consent of the Federal Executive Council. However, the rules were not made before 1979, due to the fact that the 1979 Constitution did not make the consent of the Federal Executive Council necessary hence, it left it to the Chief Justice to make the Rules, and this was done. The Rules are known as s.1 No. 1 of 1979, Fundamental Rights (Enforcement  Procedure) Rules, 1979. They took effect from January 1 1980.

Eleven Fundamental Rights have been embodied in the written Constitution of 1979 (section 30 – 40). These rights as contained in Chapter IV of the Constitution differ from the principles contained in Chapter II in that whereas, the rights are justiceable the principles are not.⁷⁶

The provisions of the Fundamental Rights (Enforcement – Procedures) Rules appear the more radical. Hypothetically, it will appear possible under the rules not to request for any specific remedy and all the court is obliged to do is make such order, issues writs, and give such directions as may consider just or appropriate having heard the cases of the complainant.

In practice, specific remedies are asked for, but it is perhaps possible to apply for a particular remedy in the application and the evidence adduced may require the application of another remedy not asked for. The case should not be lost on account of this, as the court is  required to consider what is just and appropriate in the circumstances. So it is a special procedure in special circumstances.⁷⁷ The rule  provides in Order 5, “Any person or body who desires to be heard in respect of any application, motion, or summons, under these Rules, and appears to the court or judge to be the proper person or body to be heard, shall be heard notwithstanding that he or it has not been served with the copy of the application, motion, or summons.

Thus, it gives the status of amicus curiae to “any person who desires to be heard in respect of any application.”

In Nigeria, locus standi is a constitutional issue. For section 6(6)(b) of the Constitution of 1979 limits exercise of judicial power to:

“…all matters between person, or between government or authority and any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.”

          Suffice it to say at the moment that Order 5 of the Enforcement  Rules has not given a locus standi to every person who wished to be heard in a human rights matter. Rather, it gives to every body who desires to be heard in such a cause that right once the action has been properly commended by a person who has a locus standi. This is an important step forward. But we look forward to a time when Nigeria will advance to the position of Canada, where every citizen has not only the right to be heard, but also the locus standi to challenge such breaches of the provisions of the Constitution.

          Finally, worthy of special mention is the remedy which is available to an applicant under the Enforcement Rules. The court is empowered to make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of nay of the fundamental rights provided for the Constitution to which the complainant may be entitled. The court may commit a party disobeying such an order to prison in order to compel obedience.

JUSTICIABILITY OF CAUSE OF ACTION IN CHAPTER IV OF THE CONSTITUTION

Cause of action having defined, it is now proposed to examine the justiciability of cause of action as a foundation of action under Fundamental Rights (Enforcement Procedure) Rules 1979. The guardianship of the Constitution and the rights and freedoms guaranteed therein are left for determination by the superior court in Nigeria. In this case, the High Court of the a State or the Federal High Court is vested with original jurisdication to hear and determine any issue arising from the  breach of the guaranteed rights and freedoms.⁷⁸ In adopting this method, Nigeria followed the examples of Canada. Indian and the United States.⁷⁹ On this, recent Supreme Court cases will form the bedrock of the discussion, the principal one being the case of Sea Trucks Nigeria Ltd v. Panya Anigboro.⁸⁰ The respondent, who was employed on the 15^th August, 1984, as Marine Engineering Assistant by the Appellant, Commenced this action on 26^th February 1984. in the Warri Judicial Division of the Defunct Bendel State pursuant to section 42(1) of the 1979 Constitution and Order I Rules 2 of the Fundamental Rights (Enforcement Procedure) Rules, 1979. he obtained leave to bring an application for redress of the breach of the rights of assembly and association of the plaintiff/applicant when he was unlawfully and summarily dismissed form work by the defendants on the 28^th February 1986, by locking him out and by notice at the gate of the defendant’s premises at Enerhen, for his declaring to belong to a particular trade Union. National Union of Petroleum and Natural Gas Workers (NUPENG).

When the plaintiff and some other worker declared for NUPENG the defendant made it clear to them that as its business activities had nothing to do with oil and gas prospecting, their declaration for NUPENG was inappropriate. The plaintiff and other worker had belonged to National Union of Seamen and Water Transport Works, to which the defendant/appellant had no objection. The appellant considered the act of joining another trade union a breach of applicable Trade Union Law and then refused to acknowledge or recognize NUPENG now opted for.

The plaintiff and other workers refused to come to work and engaged in acts and agitation aimed at disrupting the business of the defendant. After due warning which was unheeded, the defendant wrote to the plaintiff and others that they would be summarily dismissed unless they resumed duty within a given date. The plaintiff ignored the defendant’s warning and was summarily dismissed.

The trial judge struck out the action on the ground that it was statute-tarred but the further held that “the applicant has established his personal and private interest to sustain his standing in instigating sic this action.” The plaintiff appealed to the Court of Appeal and the defendant cross-appealed. The Court of Appeal held that the ordered  re-instatement of the plaintiff with a further  direction that “he should also be allowed to join any trade union of his choice without let or hindrance as guaranteed to him under section 37 of the Constitution, 1979,” the cross-appeal was dismissed. The defendant appealed to the Supreme Court.

In allowing the appeal, the Supreme Court held inter alia that the plaintiff’s/respondent’s claim is the deliberate and disingenuous act of over sighting the restricted frontiers of Chapter IV of the 1999 Constitution and the specified fundamentals therein which are enforceable under the rules. Once such pretence is dismantled the clear limits of the Constitutional provisions under Chapter IV will negate the apparent rights of a plaintiff to initiate actions under the Rules in relation to matters outside the purview of the provisions of Chapter IV of the Constitution.⁸¹

          In Sea Trucks Ltd. V. Anigboro, the Supreme Court considered that the appeal raised the important issue of justiciability of cause of action under Fundamental Rights (Enforcement) Procedure) rules 1979. In other words, had the appellant established his claim or grievance if any it would be by a common law action not a constitutional action, the grievance being none other than a breach of contract.

          Although the enforcement of fundamental rights under which the action was brought is provided for in Chapter IV of the 1979 Constitution, it must be noted that the provision of Chapter IV and in particular section 46 of the 1999 Constitution are in pari materia with the 1979 Constitution.

          Section 46(1) (2) and (3)⁸² of the 1999 Constitution provides thus:

“46 (1) Any person who alleges that nay of the provisions of this Chapter has been, is being likely to be contravened in any state in relation to him may apply to a High Court in that state for redress.

(2) Subject to the provisions of this Constitution, a High court shall have original jurisdiction to hear and determine any application made to it in pursuance of the provisions of this section and may make such others, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement within that state of any rights to which the person who makes the application may be entitled under the Chapter.

(3) The Chief Justice of Nigeria may make rule with respect to the practice and procedure of a High Court for the purposes of this section.

          This section empowers the court to enforce the fundamental rights as enshrined in Chapter IV. Therefore, a person whose fundamental rights is breached, being breached or about to be breached may therefore, apply to a High Court of that state for redress. Before a court can exercise its judicial power, the case and controversies brought before it must be justiciable. Justiciability of a cause of action under the Fundamental Rights (Enforcement Procedure) rules, 1979 does not lie with the trial judge. The approach is to characterize the nature of the principal or main claim as may be gathered from the surrounding circumstances and thereafter, subsume the claim under common law action of proceedings predicted on the special rules under the Constitution.⁸³ Bearing this in mind, the Supreme Court in the above case held inter lia:

“The proper approach to determine the justiciability of a cause of action is to examine the relief brought by the applicant, the grounds of such relief and the facts relied upon. If they disclose that breach of fundamental rights is the main plank, redress may be sought through the fundamental rights (Enforcement Procedure) Rules, 1979. But where the alleged breach of fundamental right, is incompetent to proceed under the rules.⁸⁴

In determining the justiciability of cause of action under the Fundamental Right (Enforcement Procedure) Rules, 1979, any exercise of jurisdiction in respect of subject matter outside Chapter IV is without jurisdiction, unconstitutional and void.⁸⁵ Therefore, Procedure under the Fundamental Rights (Enforcement Procedure) Rule, 1979 must be strictly adhered to.⁸⁵

          In the Supreme Court of Raymond Dongote v. C.S.C. Plateau State & 2 Ors.⁸⁶ It was held by A.G. Karibi Whyte JSC that it is well settled principle that where a special procedure is prescribed for the enforcement of a particular right or remedy, non-compliance with or departure from such a procedure is total to the enforcement of the remedy.⁸⁷ Where a breach of the provisions of Chapter IV is the principal claim, the procedure can be invoked even though other claims are made.⁸⁸ Certainly, in the case under review, the plaintiff/respondents cause of action is the breach of a contract of employment redressible by a writ of summons and not an infraction or threatened breach of a fundamental right as provided by the constitution for which a special procedure of the Fundamental Rights (Enforcement Procedure) Rules, 1979 is provided. Obviously, an action for breach of contract cannot be initiated under the Fundamental Rights (Enforcement Procedure) Rules, 1979.

          The jurisdiction conferred on a High Court under section 46 of the 1999 Constitution is neither a supervisory jurisdiction nor the powers of judicial review. It is far beyond and outside of that. It is a special jurisdiction conferred under Chapter IV provisions mainly for the purpose of enforcing or securing the enforcement of fundamental rights.

          The manner in which the Court is approached for the enforcement of a fundamental right is hardly objectionable once it is clear that the originating court process seeks redress for the infringement of the right so guaranteed under the constitution.⁸⁹

          In addition to the above, in the case of the Director, SSS v. Agbakoba,⁹⁰ the court held that declaratory and other reliefs can be sought and obtained to enforce and protect fundamental rights by filing action in a High Court. However, in the case under review, the appellant by wrongly initiating his claim under the Fundamental Rights (Enforcement Procedure) Rules 1979, his claim was not initiated by the due process of law as laid down in the Rules. The proceedings before the High Court were a nullity.⁹¹ Where the fundamental rights is ancillary to the substantive claim, it is incompetent to proceed under the Fundamental Rights, (Enforcement Procedure) Rules.

          There is no dispute in the instant case that the complaint of the plaintiff/respondent is a claim for wrongful dismissal, and the principal relief is for his reinstatement which the court ordered. The claim for wrongful dismissal is clearly not one of the rights prescribed under Chapter IV and cannot be a claim brought under the rules.

          In summation therefore, it must be acknowledged that the rights that have been guaranteed and which may be enforced are those which, as sated before, are set out in Chapter IV of the Constitution and a complaint’s cause must fall squarely within the ambit of any of its sections in order to found a claim alleging a breach or threatened breach of his fundamental rights.⁹² Thus, in the celebrated case of Ramsom Kuti & Ors. V. A.G. of Federation & Ors.⁹³ The case was dismissed unanimously on the ground that the appellant’s case being founded upon tort and the common law principle of state immunity still being applicable in Nigeria when the present cause of action arose in 1977, the state cannot be held liable for the tortuous acts of its servants or agents. Continuing on the question of how to seek redress for a breach of fundamental right, under the 1963 Republican Constitution, Justice Kayode Eso stated:

“…the right guaranteed by this provision section 32(2) is not in any respectful view a mere right, it is a special one, the remedy for which is outside the purview of an ordinary action which is brought mainly  to seek damages for a depict. And when one is not just to seek damages for a tort allegedly committed by another the ordinary common law, which it would appear, the plaintiff in this case have brought (and not the special law) is the answer. While the special law is meant to seek redress which indeed may even include compensation for the damage done, the plaintiff must be known to be seeking redress and not merely calling in aid constitutional provisions in his action for damages for torts.”

          Therefore, where a breach of the provisions of Chapter IV is the principal claim, the procedure can be invoked even though other claims are made.⁹⁴ Consequently, where the main or principal claim is not the enforcement or securing the enforcement of a fundamental right, the jurisdiction of the court cannot be properly exercised as it will be incompetent.⁹⁵ Coming to the cases at hand, they concluded that principal claims which are outside the purview of the fundamental Rights (Enforcement Procedure) Rules, 1979 were nullity and injusticiable.

3.       CONCLUSION

It is evident from the above that the phenomenon of electoral violence is compounding the generalized crisis of insecurity in the country and is threatening to undermine the national quest for democratic development. This phenomenon could be effectively checkmated by concerted efforts by serious-minded and committed stakeholders, who can in any organized manner catalyze and facilitate necessary reform processes.

          Hence the following recommendations:

1.       The political class in Nigeria should strive to put national interest above personal or party considerations by eschewing the culture of political/electoral violence, lawlessness, intolerance of opposition, and politics of material inducement.

2.       The Media, NGOs, Community Leaders and Civil Society should strive to educate politicians and the general public on the democratic culture of political competition and opposition, and the need to practice politics by the rules of the game.

3.                 Government should establish, or where they exist, enforce laws that would effectively sanction the performance or non-performance of the political or ruling class, and taking punitive measures on those found guilty of offences.

4.                 Discussions on political/electoral violence should be conducted at the grassroots level using the media and indigenous Nigerian languages of the respective areas so as to enlighten better the possible victims and tools of political/electoral violence.

5.                 One way of removing violence from Nigerian politics is by ridding it of election rigging, and the lure of financial profits, wealth, power, and prestige. And that can only be done by reassigning priority to capability, integrity, and virtue as the criteria for selecting people’s representatives in government.

6.                 Party formations and subsequent inter-party coalitions and mergers must be based on ideological stance as the only way of eliminating violence brought about by ethnic and religious politics.

7.                 The Independent National Electoral Commission (INEC) should be restructured completely and be made truly independent from government’s interference and manipulation in order to earn public confidence.

8.                 There is need to flush out shadow-parties which apparently are formed only to create distractions in the Nigerian political arena.

9.                 There is need for government and the civil society to pursue the introduction at all levels of the school system of a suitable curricular, the study of the problems of governance and democracy and how the rural and urban populace can enrich the process.

10.             The print and electronic media must give equal access and attention to all the political parties jostling for power. Any attempt to deny those with opposing political views space and airtime to sell their programmes may result in their looking for extra constitutional means of expressing themselves. Civil society groups must therefore monitor the performance of the print and broadcast media and insist that they remain professional in their dealing with all the political parties and associations.

ENDNOTES AND REFERENCES

1.     See Oxford Advanced Learner’s Dictionary, 6^th edn. (2000)

A.     S. Hornby, (ed.) Sally Wehmeier, Oxford University Press, Oxford, U.K., p. 374.

2.     See Ujo supra note 3 at pp. 13-18.

3.     Ibid.

4.     Ibid, at Chapters 4-13.

5.     Oxford Dictionary, supra note 13 at pp. 1332-3.

6.     See S.I. Nchi, The Nigeria Law Dictionary, first edn., (1996) Tamaza Publishing Co., Ltd; Zaria, Nigeria, at p.184.

7.     See generally, Ladan M.T., “Cases of Electoral Violence in Nigeria,” in Election Violence in Nigeria (eds) M.T. Ladan and Aisha Kiru, (2006) AFSTRAG-Nigeria, Lagos.

8.     See Ujo Supra note 3, Chapter 15.

9.     Refer to Secretary to the Government of the Federation:- Proceedings of the Retreat on  the Electoral Process and Violence:- Abuja, (February 2002).

10. See Oxford Dictionary, supra note 13, at P. 520.

11. See the Encyclopaedia Britannica, Supra note 5, at P. 534.

12. See Umaru, A., Rigging Ways:- The Constitution and the electoral process in Nigeria, (2003);- Axis Research Agency, Kaduna, pp. 40-47.

13. Ibid at pp. 40-57.

14. Ladan, M. T., (ed.) (2001):- Law, Human Rights and the Administration of Justice in Nigeria. A.B.U., Press, Zaria and Department of Public Law, Faculty of Law, A.B.U., Zaria, at pp. 1-88.

15. See the definition of corruption under the new Nigerian Corrupt Practices and other related offences Act, 2000.

16. See the Representative of the Peoples Act 1906. Also see the electoral Acts of Nigeria. See Ujo, supra note 3 at pp. 21-27.

17. See Smith, T. E., Elections in Developing Countries, at p. 20; See also Registration of Voters in the United States. The Brookings Institution, Washington DC, USA, 1929.

18. See Encyclopaedia Americana, supra note 1, at p. 119.

19. It was so until 1949:- See Representation of the People Act 1949 for new additions.

20. See section 28 (3) (e) of the Presidential election (Basic Constitutional and Transitional Provision) Act 1999.

21. See section 30(1) of Decree 6, 1999.

22. Brein case (1871) 220 O’M and H 43. See also section 30(2) of Decree 6, 1999.

23. (1955) WNLR 152.

24. (1869) 10’m AND h 16 AT 19 PER.

25. See Wigan’s case (1881( 4 O’M and H p. 1.

26. Refer to section 29 of the Presidential Election Act.

27. Section 32 of the Presidential Election Act.

28. Section 32(1) (c), Ibid.

29. Ibid, Section 32(2).

30. See Swaminatha v. Ramadingam (1958) 14 ELR 3383; or (1952) 2 ELR 390 at 395-6; Karia v. Frederick (1958) ELR 403.

31. This was the position in Nwagboga Alo v. Nwankwo, (1966) 6 ENCL 99. One salient aspect of this case was that only one witness was called on behalf of the petitioner.

32. Act of 1999.

33. Professor Ewelukwa argues that every gift of subscription should be carefully scrutinized to see if the motive is to influence the voters. See Ewelukwa, D.I.U., Nigerian Electoral Law, Shelters International Ltd, (1983) p. 163.

34. For authority on use of force or violence, see Stafford case (1869) 1 O.M and H. 228 where election was avoided because an agent of a sitting member incited the mob to beat and molest people on the day of election, so as to terrify some voters and prevent them from voting.

35. See Norfork case (1869) 1 O.M. and H. 236.

36. Oldham case (1869) 1.O.M. and H. 151 per Blackburn, J., at P. 162.

37. (1959) 20 E.L.R. 443 at 468.

38. R. v. Barnwell (1957) 29 L.T.O.S. 107; also see Wareham Case (1857) 29 L.T.O.S. 346.

39. (1955) WNLR 134

40. (1955) WNLR 142.

41. Litchfield Case (1880) 3 O.M. and H. 136.

42. See the Pakistani Case of Hajikhan v. election Tribunal (1966) R.L.D.K. 312.

43. See Ladan, M. T., International Human Rights Standards for Law Enforcement officials in a democratic society. A paper presented at a 3-Day National Seminar on the role of the Law enforcement agencies in a post-military era. Organized by the National Human rights Commission, Abuja and CLEEN, Lagos; at Savannah Suites Hotel, Abuja, between 8-10 March 1999.

44.  Section 4 of the Police Act Cap. 359 Laws of the Federation of Nigeria 1990.

45. Refer to page 15, Manual for election observers, issued by INEC.

46. Section 388, Police Act Supra note 58.

47. Ibid, Section 339 (a, b-d).

48. Ibid, Section 340.

49. Ibid, Section 341.

50. Ibid, Section 342.

51. Article 2, Universal Declaration of Human Rights 1948; Articles 2-3, International Covenant of Civil and Political Rights, 1966.

52. Ibid, Articles 2(1) and 25(a) respectively; Article 13 African Charter on Human and Peoples’ Rights; Article 1, UN Convention on the Political Rights of Women.

53. Article 10, ICCPR of 1966; Articles 4 (2) and 12 (c) of UN Convention on the Elimination of all forms of Discrimination Against Women.

54. Article 2 of the UN Declaration on Violence against Women.

55. Ibid, Article 4 (f).

56. See generally, Policing Elections:- A pocket book for law enforcement officials on the prevention and control of electoral violence in Nigeria (1999), CLEEN, Lagos, at pp. 11-12.

57. Ibid, at pp. 12-14.

58. See Section 86(8) (a) & (b)

59. Section 87(5) (a) & (b)

60. S. 127(1) (f)

61. S. 127(1)(I)

62. S.127(3)

63. 1999 Constitution of the Federal Republic of Nigeria.

64. No. 4 of 2002.

65. See section 233(e) of the 1999 Constitution.

66. See Babalola .A: Election Law and Practice, (Intec Printers ltd) Ibadan, (2003) p. 45

67. There shall be established for the Federation one or more election tribunals to be known as the National Assembly Election Tribunals which  shall, to the exclusion of any court or tribunal, have original jurisdiction to hear and determine petitions as to whether-any person has been validly elected as a member of the National Assembly; the term of office of any person under this Constitution has ceased; the seat of a member of the senate or a member of the House of Representatives has become vacant; and a question or petition brought before the election tribunal has been properly or improperly brought.

68. See section 285(2) of the 1999 Constitution.

69. See section 246(1) (b) (i-ii) and (30. Ibid

70. 2002 No. 4 79.

71. .

72. .

73. .

74.  

75. Brahim v INEC,(1999) 8NWLR,(Pt614)334,See also Olisa Agbakoba and Hilary Ogbonna, Manual on Election Petitions in Nigeria, p.41.

76. Edonkumoh v Mutu(199) 9NWLR(PT 620)633, See also Olisa Gbakoba and Hilary Ogbonna, Manual on Election Petitions in Nigeria,p.42.

77. Denis Petit, p7

78. (See section 13 of the 1979 Constitution)

79. Honourable Justice Niki Tobi: “Fundamental Rights Enforcement and Procedure Rules and Speedy Trial” In 1991 Judicial Lectures Continuing Education for the Judiciary MIJ Publishers 1991, Chapter 5, (1991).

80. Section 42(1) & (3).

81. E.g. Under the 1960 Constitution of Cyprus, the function was entrusted to the Supreme Constitutional Court; Australia Constituted a Special Tribunal for this.

82. (2001) F.W.L.R. part 37 1000 (S.C.)

83. Per Achike, JSC pp. 1028-1029 paras. G-B.

84. Section 46(1)(20 and (3) of the 1979 Constitution.

85. Per Achike JSC p. 1028 Paras F-G.

86. Per Karibi-Whyte JSC pp. 1024-25 paras F-G.

87. Maria David-Osuagwu v. A.G. Anambra State & Ors. (1993) 4 NWLR (pt. 285) C.A.

88. Saude v. Abdullahi (1989) 4 NWLR (Pt 116) 387 S.C.

89. (2001) 4 S.C. (Pt. 11) 43 at 56.

90. See also Barraclough v. Brown (1897) A.C. 615.

91. Din v. A.G. of the Federation (1988) 4 NWLR (Pt. 87) 147 S.C.

92. Ibid.

93. (1999) 3S.C. 59; (1993) 3 NWLR (Pt. 595) 314.

94. See the case of Jack v. University of Agriculture, Makurdi, (2004) I S.C. (Pt. 11) at 1000.

95. Hon. Justice M.M. A. Akanbi JCA “ Constitutional Structure and the Position of the Judiciary: Fundamental Ridghts.” (Chapter 2) in 1990 Judicial Lectures Continuing Education for the judiciary, MU Publishers 1991, p.20.

96. (1985) 2 NWLR (Part 6) P. 211 at 230/231.

97. See Borno Radio Television Corporation v. Basil Egbuonu (1979) 12 NWLR (Pt. 531) 29. See also, Shugaba v. Minister of Internal Affairs (1982) 3 NCLR 915.

98. Tukur v. Government of Tabara State & Ors (1997) 6 NWLR (Pt. 510) 549 at 552 Paras B-C.H; 575 Para A.