Indictment And Election Disqualification

Indictment And Election Disqualification: The Nigerian Experience

Akinwole Ogunlola, Esq.

The word “indictment” is fast becoming a deadly political weapon of mass disenfranchisement in the hands of Nigerian politicians that if the trend is not checked promptly, this term will not only lose relevance as those others before it, but also capable of plunging the country deeper into the abyss of self destruction. When the term “impeachment” was first introduced by the framers of the Nigerian Constitution in 1979 as a possible check on the powers of the Executive, detailed procedure was also outlined that must be followed to validly impeach a public officer. The framers of that Constitution did not realize at the time that Nigerian politicians could not be trusted with such additional power as we immediately began to witness impeachments upon impeachments and threats of impeachment as an instrument of political blackmail and intimidation in the hands of unscrupulous lawmakers? We have even witnessed situations where our lawmakers meet at Clubhouses or night parties and came out with questionable impeachment announcements. Although relatively new, the term “indictment” in Nigeria is fast traveling along the same destructive track that we must all stand up against imminent abuse by the politicians before it becomes too late.

Ordinarily, one would expect that a body like the INEC, charged with the responsibility of conducting elections in the country should also be given the power to screen aspiring candidates for political offices. That is not the case in Nigeria. Only recently, the Supreme Court of Nigeria, while ruling on the purported disqualification of the then Vice President Atiku Abubakar from contesting the last general election, stated that the Independent National Election Commission (INEC) has no power to disqualify any candidate for election without an order of the Court if the name of such candidate had been submitted to INEC by the Political Parties. If the INEC is not empowered to determine candidates’ eligibility to contest election, which body or Agency in the Country has the power and what is the implication of the Court’s ruling for the country?

One is then forced to consider the powers of the numerous Election Tribunals that currently litter our political landscape. Can a Tribunal rule on the eligibility of a candidate after the election is already concluded and without a prior order of the Court to that effect? "By virtue of Section 145 (1) of the Electoral Act 2006, an election could be questioned on the grounds that a person(s) whose election is questioned was at the time of election not qualified to contest the election." This Provision tends to suggest therefore that a Tribunal has jurisdiction or the power to determine candidates’ eligibility long after the election is over as long as we have a losing candidate ready to make “eligibility” an issue before the tribunal. This of course, is in addition to the standard power of the Tribunal to determine the true outcome or results of the election. From this reversed position, what we have in Nigeria is a situation where a candidate’s qualification and eligibility to contest the election in the first place remains uncertain for a prolonged period after the election. We contest and win election first and worry about eligibility later before a Tribunal. This is one of the unfortunate consequences of the Court’s ruling in the Obasanjo v. Atiku power struggle.

This being the case, it becomes interesting to consider the provisions of Section 182(1) of the 1999 Constitution which stated that: "No person shall be qualified for elections into the office of governor of a state if he has been indicted for embezzlement or fraud by judicial commission of enquiry or administrative panel of enquiry or tribunal set up under Tribunal of Enquiry Act, the tribunal of enquiry law or any other law by the Federal or state government, whose indictment has been accepted by the federal or state government." What is meant by the word “indictment” as used in our Constitution is certainly unclear. Examination of Section 318(1) in Part IV of the Constitution which is devoted to interpretations as well as the Nigerian Interpretation Act, Chapter 192 (Laws of the Federation of Nigeria 1990) is not helpful because both are completely silent on the meaning of the term that has suddenly become political weapon in the hands of our politicians.

Without doubt, corruption, which has almost been institutionalized in Nigeria, is a detrimental force that hinders democracy and represses individuals in many countries throughout the world. According to Transparency International, rates and levels of corruption in Nigeria is among the highest in the world because pervasive corruption appears to permeate many levels of Nigerian society, It is not in dispute therefore that the overall intent of Section 182 of 1999 Constitution is to fight corruption, encourage transparency in governance by ensuring that only candidates with proven integrity actually run the affairs of the country. But because the Nigerian framers of our Constitution and other laws neglected or forgot to explain or define the term “indictment” before making it a ground for disqualification of potential or elected politicians, we must turn to other jurisdiction for guidance on the its origin, use and application. In addition, we must consider whether within the Nigerian context, and stemming from our political culture, an “indictment” should constitute a valid ground to overturn any election result or disqualify a candidate by the Election Tribunal.

According to Black’s Law Dictionary, eighth edition, indictment is the “formal written accusation of a crime, made by a grand jury and presented to a court for prosecution against the accused person”. It follows therefore that “indictee” is a person who had been indicted or one officially charged with a crime. On the other hand, “indictor” is the person that caused another to be indicted. Indictment could either be by a grand jury or prosecution by information. According to Richard Alexander and Sheldon Portman, “the origins of the institution of the grand jury are obscure. In some form it was found early in all the Teutonic peoples, including the Anglo-Saxons before the Norman Conquest. Forms of the grand jury have also been traced in Scandinavian countries where jurors came to determine both law and fact. The grand jury originated in Anglo-American law with the summoning of a group of townspeople before a public official to answer questions under oath, a system of inquiry used for such administrative purposes as the compilation of the Domes day Book of William the Conqueror”.

The indictment by grand jury or prosecution by information later found its way into America where it has since been modernized and constantly updated. The main duty of the grand jury is to examine the records or witnesses, or both, as presented by the prosecuting attorney and come to a conclusion as to whether persons accused of crime ought to be tried or not. This they do under the advice of the District Attorney. In many cases they are, in whole or in part, composed of persons ignorant of the law; and in a majority of cases, if the District Attorney tells them that the evidence is sufficient to convict they indict, and on the contrary, if he tells them the evidence is not sufficient, they do not indict. How it works is that the State or the Prosecuting attorney gathers 12 laymen in a place and inform them that someone had committed a crime. He shows them documents and other evidence to support that claim and also to convince them that if the case goes to trial, he could secure a conviction against the accused based on the strength of available evidence and credibility of witnesses etc. If the grand jury is sufficiently convinced, then they return a verdict of indictment against the suspect or that accused person. The accused is then later notified of the indictment and given the right to challenge it altogether or defend himself in a Court of law. Put in a layman’s language therefore, an indictment is nothing more than mere declaration of intention by the State or the prosecuting attorney to prosecute someone for “alleged” violation of the law.

The United States of America is one of those jurisdictions of the world where indictment is being used. Even here, the evolution and practice of indictment has been subject of debates and constantly under review with the ultimate goal of ensuring that it is not abused. As part of that effort, it has long been established that there must be “probable cause” before anyone can be indicted. Probable cause means that there is reasonable ground to suspect that a person has committed a crime. Under the Fourth Amendment, probable cause amounts to more than mere suspicion. This means that in order to return a true bill of indictment, twelve (12) or more State grand jurors must find that probable cause exists for the indictment and vote in favor of the indictment. Even with the indictment, the accused must still be prosecuted and found guilty by competent courts of law.

Furthermore, except with specific rule or law to the contrary, an indictment must meet other requirements to be valid or adequate. For example, every element of the offence charged must be proven, and failure of indictment to detail each element of charged offense generally constitutes a fatal defect. See Almendarez-Torres v. United States, 523 U. S 224, 228 (1998); United States v. Cook, 17 Wall. 168, 174 (1872). This was why the United States Court of Appeals for the 9th Circuit in United States v. Resendiz-Ponce (No. 05-998) 425 F. 3d 729 stated that “ an indictment’s omission of an essential element of the offense is a fatal flaw that is not subject to mere harmless error analysis”. While dissenting with the rest of the justices of the United States Supreme Court, Justice Scalia also stated that “it is well established that an indictment must allege all the elements of the charged crime. As the Court acknowledges, it is likewise well established that “attempt” contains two substantive elements: 1) the intent to commit the underlying crime, and 2) the undertaking of some action toward commission of that crime... It should follow then, that when the Government indicts for attempt to commit a crime, it must allege both that the defendant had the intent to commit the crime, and that he took some action toward its commission. Any rule to the contrary would be an exception to the standard practice”.

The need for the indictment to charge essential elements of an offense is so strict that the defect could not be cured by the trial court by amendment or through jury instructions. In fact, the Supreme Court of United States has stated that “the very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge.” Russell V. United States, 369 U. S. 749, 771, 82 S. Ct. 1038, 1051, 8 L. Ed. 2d 240 (1962) (citing Stirone V. United States, 361 U.S. 212, 218, 80 S. Ct. 270, 4 L. Ed 2d 252 (1960). To allow a prosecutor or Court to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would deprive the defendant of a basic protection that the grand jury was designed to secure, because a defendant could then be convicted on the basis of facts not found by, and perhaps not even presented to, the grand jury that indicted him”.

Turning our attention to Nigeria, we would examine three cases of indictments against certain public officers and the consequences or intended consequences of their indictments. The first is Atiku Abubakar V. Olsegun Obasanjo at the federal level, the second is Rasheed Oladoja V. Alao Akala in Oyo State, and the third one is Obong Victor Attah V. Godswill Akpabio of Akwa Ibom State.

A) OBASANJO V. ATIKU

At a time that Obasanjo expended enormous resources toward his botched secret third-term ambition and further fueled the rumors of the same by maintaining a near- criminal silence over the truth or otherwise of that ambition, Atiku Abubakar, (then Vice President) was bold enough to express his opposition to that ambition. To Abubakar, such ambition on the part of Obasanjo amounted to betrayal of trust and violation of our Constitution. However, the mere expression of such opinion by Abubakar, or failure to support such suicidal ambition by anyone in general, and Abubakar in particular, constituted an unforgivable sin that must be punished by Obasanjo. What subsequently followed is now history but Obasanjo did everything to discredit his deputy with the ultimate goal of preventing the vice-president from contesting the next general election. Obasanjo also realized at the time that Atiku Abubakar represented the greatest threat to his ambition should they have to contest against each other in a free and fair election. The stage was set for destruction. Trump up charges and allegations of corruption were quickly brought against Atiku Abubakar. He was “indicted” and Obasanjo hurriedly came out with a gazette of that politically motivated and questionable indictment! Relying on the Constitutional provision on “indictment” as a ground for disqualification, Obasanjo and the Independent National Election Commission maintained that Atiku Abubakar cannot contest as a candidate in the general election. To Obasanjo, the term “indictment” in our Constitution had been successfully manipulated and used to accomplish the mission of stopping the political ambition of his enemy. It finally took the intervention of the Nigerian Supreme Court to save Abubakar.

B) VICTOR ATTAH V. GODSWILL AKPABIO

Relying on the “indictment” provision of Section 182(1) of our 1999 Constitution, and armed with the knowledge that the term “indictment” as it is, could be easily manipulated to discredit and disqualify political opponents, Governor Obong Victor Attah of Akwa Ibom who preferred his son-in- law for the office of State Governor and who had long regarded Godswill Akpabio (now elected Governor) as greatest possible threat, also did everything to have Godswill Akpabio indicted by some lousy administrative panel of inquiry. This newly discovered weapon of mass disqualification is quickly spreading like wild fire throughout the country that no threatened incumbent wanted to be left out from pulling the trigger. The trend became troubling even more when we examine the language being used as “report of commission of inquiry into the activities of some persons and serving/past government functionaries between 1999 and 2007” issued from the office of the Secretary of Abia State government of March 14, 2007 also listed Dr. Emmanuel Andy Uba, Mr. Solomon Akpalonu, Mrs Nkechi Nwaogu, etc as “persons whose activities were meticulously examined, scrutinized, weighed and found to be deplorable, corrupt, inept, fraudulent and despicable and as such, it was recommended that they be “reprimanded, indicted and punished accordingly”.

C) RASHEED LADOJA V. ALAO AKALA

Having fallen victim of Obasanjo’s vendetta driven policies, and not to be outdone by other threatened incumbents in other parts of the country, former governor Rasheed Ladoja of Oyo State also recognized Section 182(1) of the Constitution as a potent weapon that could be manipulated to settle personal scores with his former deputy governor, Alao Akala. At the time, Ladoja had already lost the support of his former political “godfather”, Lamidi Adedibu while Alao Akala on the other hand, and with Adedibu’s support was fast becoming the inevitable next governor of the State. What is the remedy? The answer for Ladoja, like those before him, lies in making sure that Alao Akala is promptly discredited and “indicted”, so that in the spirit of our Constitution, Akala’s inevitable march to success at the polls can at least be challenged at the Election Tribunals. The common expectation of these “indicting” politicians is a bid to stop powerful opponents from either contesting the election in the first place or to facilitate annulment of their victory by Election Tribunal. We must realize that most of the “indicted” politicians remained sufficiently “honest” to serve in the same cabinet, act as deputy governor or vice president until they declared interest in higher political office that is being eyed by the incumbent or someone favored by the most powerful politician in the State. In this particular case, as in Obasanjo V. Atiku’s case, the candidates (indictee and indictor) have acted jointly within the same party and executive for too long before the sudden indictments that we cannot, in all fairness believe that Atiku or Alao Akala are anymore corrupt than their principal officers, Obasanjo and Ladoja. These politically motivated indictments are mere fallouts of powerful political struggles.

More important however is the fact that both the composition and modus operandi of each commission of inquiry tasked with indicting political opponents is not easily verifiable. In addition, the offenses with which these victims are charged (or intended to be charged) cannot be said in every situation to be known to Nigerian Criminal law. See Abia State example again, where the paper stated that: “persons whose activities were meticulously examined, scrutinized, weighed and found to be deplorable, corrupt, inept, fraudulent and despicable and as such, it was recommended that they be “reprimanded, indicted and punished accordingly”. We cannot equally say that appropriate judicial oversight and verifiable standards exist under our legal system to prevent arbitrary use of this newly discovered and undefined term. Nigerian politics, to a reasonable extent, remain ethno-tribal based with each ethnic group largely supporting the political candidate from his/her group. To allow a politically damaged or threatened incumbent the unrestrained and arbitrary use of “indictment weapon” on a popular candidate would indirectly amount to disenfranchisement of the entire ethnic group or tribe from which the indicted politician may have come from. This clearly violates acceptable norms of democracy. It is unacceptable, and it poses a major challenge to our democracy that it must be discouraged.

CONCLUSION

The unpleasant truth about Nigeria is that both the “indicting” and “indicted” are corrupt politicians who often belong to the same political camp with similar values, principles and common attitude toward governance until one feels sufficiently threatened by the other. The indictment of public officers as we currently have is the fallout of power struggle among politicians who are desperate to hang to power and those determined to unseat them. These indictments are not only politically motivated and frivolous; they also violate equal protection and due process clause of civilized constitutions that no responsible Election Petition Tribunal in Nigeria should make “indictment” a sufficient ground to overturn any election result in the country. Of equal importance is the fact that unless and until we see these indictments for what they truly represent, the self-serving manipulation of our electoral process by unpopular or threatened politicians will continue and the Nigerian elections are likely to remain violent, fraudulent and contentious for a very long time.

Only a finding of guilt by regular courts of the land should be used as credible ground by any Election Tribunal for disqualifying an elected political office holder, not the irredeemably defective, highly discredited, politically induced and eleventh- hour indictments that were planted as landmines in the paths of victory-bound political opponents by the outgoing, and in some cases, unpopular politicians.

* Akinwole Ogunlola is a U.S. based Lawyer.