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Unending wait for Electoral Offences Commission

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The need to establish an Electoral Offences Commission has been a recurrent debate dating back to 2003 when Nigeria was expected to begin the consolidation process of her democratic process. The nation had four years earlier enthroned an elected government headed by Olusegun Obasanjo, after decades of militarised polity with attendant human rights abuses, mass corruption, and diplomatic row that had dragged the image of the nation into the mud.

In 2003, 2007, 2011, and subsequent general elections held till date, electoral offences ranging from voter inducement, ballot box snatching, and more have become the order of the day. The Electoral Reform Committee headed by a former Chief Justice of Nigeria, Mohammed Uwais, had in 2007 recommended the establishment of a special prosecution body to be known as the Electoral Offences Commission.

The National Electoral Offences Commission Bill was subsequently drafted to ensure free, fair, and credible elections in Nigeria by the creation of a commission primarily charged with the prevention and detection of electoral offences, the arrest and apprehension of electoral offenders, and the prosecution of same.

The bill which passed the second reading in the House of Representatives on June 30, 2022, was pushed by relevant stakeholders, including the Independent National Electoral Commission before the 2023 general elections. The bill did not come as a novel development, as there had been several attempts by the federal legislature to enact such a bill as early as 2019. A similar bill was passed by the legislature and sent to the President for assent but was sent back to the House for further deliberations.

The Bill, which was merged with four others was sponsored by the Chairman, House Committee on Electoral Matters, Aishatu Duku, has seven parts and 48 sections, and sought to take the “burden” of prosecuting electoral offenders off INEC. The bill made it unrealistic for INEC to conduct free, fair, and credible elections and simultaneously prosecute offences arising from the same elections. The bill is to provide the legal framework for the investigation and prosecution of electoral offences for the general improvement of the electoral process in Nigeria.

Recall that the Senate had in July 2021 passed a similar bill. The bill passed by the upper chamber prescribes a 20-year jail term for offenders found guilty of snatching ballot boxes during elections.

Some of the relevant portions of the bill include; the bill provides for the establishment of the National Electoral Offences Commission as a corporate body capable of suing and being sued, and that its headquarters shall be located in the Federal Capital Territory; the bill provides for the functions of the commission to include the investigation of all electoral offences created in any law relating to elections in Nigeria, and the prosecution of offenders of these offences in addition to other functions; the bill provides that the commission shall have an Investigations, Legal and Prosecutions Unit, an Elections Monitoring and Operations Unit, an Administration Unit, a Research and Training Unit.

The bill defined and prescribed punishments for new electoral offences such as the offence of disturbing the public peace by using loudspeakers and playing musical instruments in a polling unit or its environs on election day, and punishing it with a minimum of six months imprisonment or a fine of N100,000 or both, the offence of defamation and damaging the character of an election candidate or his family member with a penalty of 10 years imprisonment or a N10,000,000 fine; the offence of propagating information during a campaign that can undermine the independence, sovereignty, and unity of Nigeria, and capable of causing people to vote based on any religion, tribe or language amongst others, with a proposed punishment of 20 years imprisonment without fine.

The bill also made it an electoral offence for employers to refuse their employees a reasonable time for voting, punish them, or deduct from their remunerations for failure to show up to the office on election day, with the penalty for doing such being a fine of at least N6,000,000 or three years imprisonment.

Also, the bill provides that the courts which shall have jurisdiction to try offences under the bill are the Federal High Court and the High Court of a State or Federal Capital Territory. Furthermore, the bill laid out more stringent punishment for existing offences such as vote-buying and bribery; imposing a punishment of 15 years imprisonment, whereas under the Electoral Act, the offence carries a punishment of 12 months’ imprisonment or a fine of N500,000 or both.

A lot of the existing electoral offences under the Electoral Act have been redefined in the bill with more stringent punishment in the form of a greater imprisonment term, fine, or both.

Meanwhile, on January 17, 2023, INEC Chairman, Mahmood Yakubu, urged the National Assembly to speed up legislative work on the Electoral Offences Commission and Tribunal Bill. Yakubu, who made the appeal in his presentation at the Royal Institute of International Affairs, Chatham House in London recently, expressed helplessness in the prosecution of electoral offences.

“Although the commission is empowered by the Electoral Act to prosecute electoral offences, it lacks the power and resources to make arrests and thoroughly investigate electoral offences. Efforts at mitigating electoral malfeasance can only become effective with the arrest, prosecution, and sanctioning of the ‘mother spiders’ to end their reign of impunity.

“It is for this reason that INEC supports the establishment of the Electoral Offences Commission and Tribunal imbued with the responsibility of prosecuting electoral offences as recommended in the reports of various committees set up by the Federal Government, notably the Uwais Committee (2009), the Lemu Committee (2011) and the Nnamani Committee (2017).

“While we will continue to cooperate with the law enforcement agencies for the arrest, investigation, and prosecution of electoral offenders, most of those who are arrested, tried, and convicted so far are the foot soldiers rather than the sponsors of electoral violence and other violations. This will enable the commission to focus on its core mandate of organising, supervising, and conducting elections and electoral activities,” Yakubu said.

On November 11, 2023, operatives of the Economic and Financial Crimes Commission arrested 14 suspected vote buyers in Otuoke, Adawari playgrounds in Bayelsa and at various polling units in Imo and Kogi. EFCC spokesperson, Dele Oyewale, said the suspects were arrested in intelligence-driven operations that commenced several days before the off-cycle governorship elections in the three states.

“Also, a total sum of N11,040,000, comprising N9,310,00 intercepted from suspected vote buyers and sellers in Bayelsa, and N1,730,000 intercepted from electoral fraud suspects across Imo State, were recovered from them.”

The Chief Press Secretary to the INEC Chairman, Rotimi Oyekanmi, while responding, said, “All is now set for the prosecution of 1,076 electoral offenders arrested in 35 states across the country during the 2023 general election held in February and March, in an unprecedented collaboration between the Independent National Electoral Commission and the Nigerian Bar Association. The Nigeria Police is also involved in the synergy.”

President of the NBA and Senior Advocate of Nigeria, Yakubu Maikyau, had during a recent courtesy visit of the association’s delegation to the commission, pledged that NBA members would provide legal services pro bono for the prosecution of electoral offenders as a service to the fatherland.

In fulfillment of that pledge, Maikyau, in a recent letter to the INEC Chairman, listed 191 lawyers, including 16 Senior Advocates of Nigeria that had accepted to take up cases in the various states free of charge, with the assistance of the police and INEC for diligent prosecution. The suspects linked to the case files are in custody. They have been investigated and the necessary evidence against them harvested.

 The Chief Press Secretary to INEC Chairman, Rotimi Oyekanmi, confirmed that letters of authority had already been prepared and would be issued to the NBA team as soon as possible to commence proceedings on all the cases. However, he noted that the NBA returned 26 case files to the Commission for onward transmission to the Police because the offences involved do not fall under the electoral offences as defined by the Electoral Act 2022. Besides, suspects involved in 22 out of the cases are either at large or were never apprehended.

However, 191 case files have been prepared. A breakdown of the distribution by state reveals that Ebonyi State has the highest number of cases – 64 – involving 216 suspects. Edo State is second with 22 cases and 80 suspects, while Anambra State is third with 12 cases involving 66 suspects.

In the same vein, Kaduna State is fourth with 11 cases and 36 suspects; Adamawa State ranks fifth with 10 cases and 17 suspects, while Kano, Rivers, and Osun states share the fifth position with nine cases each involving 74, 68, and 47 suspects respectively. Yobe State is at the bottom of the table with just one case file implicating two suspects.

The electoral offences committed ranged from “culpable homicide and unlawful possession of firearms”, “snatching and destroying of INEC items,” “being in possession of offensive weapons”, “Misconduct at polling units and stealing of election results” amongst several others.”

In a telephone conversation with Saturday PUNCH, the Director of Programme, YIAGA Africa, Cynthia Mbalu, said, “The proposal for the establishment of an Electoral Offences Commission dates back to the Uwais Report on Electoral Reform and since then, it has remained a constant demand by citizens, election observation groups and other stakeholders.

“The current culture of impunity in our electoral process has largely been enabled by the non-punishment of electoral offenders in successive elections. I believe that to promote electoral integrity and ensure sanity in our electoral process by limiting electoral offences and deterring offenders, we need an Electoral Offences Commission and an efficient and effective system for prosecuting electoral offenders.

“The 10th Assembly has an opportunity to pass the Electoral Offences Commissions Bill into law promptly to ensure that the commission is fully operational and functional ahead of the 2027 elections. Our electoral democracy must be driven by an electoral process that is credible, transparent, free and fair,” she said.

On his part, chieftain of the Arewa Consultative Forum, Anthony Sani said,

“We in ACF advocated the Electoral Offenses Commission to the Uwais Panel for electoral reforms, and think it is overdue to be passed into law and implemented.”

Joining the conversation, human rights activist and constitutional lawyer, Mike Ozekhome, said the establishment of the Electoral Offences Commission would go a long way in sanitising the system. He said, “The commission if established will greatly curb instances of electoral impunity. For now, the game is, ‘win at all cost and let those dissatisfied go to court,’ but we can’t continue this way if we are truly desirous of deepening our democracy.”

Taking a slightly different position is Jide Ojo, a public affairs commentator and newspaper columnist. Ojo, who spoke with Saturday PUNCH on the desirability or otherwise of the much-talked-about Electoral Offences Commission, expressed doubt that anything meaningful would be achieved even if the commission comes to stay.

“The beneficiaries of warped elections are the politicians. They are the ones that pay people to get their votes. Should we then expect these people to throw their support behind the commission even if it is established? Let us not forget the case of the Code of Conduct Bureau. To date, that agency is just there, crying for adequate funding because those who should have worked relentlessly to make it work are not ready to do so.

“I am aware that a component of the House of Representatives legislative agenda is electoral reforms. The issue, however, is that no one knows if they will fund the commission adequately when it is established. On paper, the commission is what this country needs. But it will require good funding to give us the kind of mileage that we want to witness in the system.

“Take for instance, the corps members often used as ad-hoc staff by the Independent National Electoral Commission during elections. Let us pause and think of Professors deployed by INEC as returning officers. When these people are called up as witnesses in election disputes, you have to fly them wherever they are, accommodate them, and feed them. So, the proposed commission, good as it is, must be made to stand firm to dispense its functions. If this is not done, nothing much will come out of it,” he said.

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