e-sRC

CHAPTER ONE
GENERAL INTRODUCTION
1.1 Background to the Study
Towards the end of 1990, international dynamics, pressures and persuasions combined to push Nigeria towards the embrace of a political system that is based on the global principles of democracy. Nigeria like other African countries is a signatory to International Conventions on Democracy and Elections in the 1990s1. The decade was significant not only to countries of West Africa (Nigeria inclusive), but the entire continent of Africa in general because it was during this period that many African countries returned to democratic governance. From the 1990s, West Africa paraded an array of emerging democracies such that at the close of that decade, Benin, Ghana, Liberia, Mali, Nigeria, Senegal, and Sierra Leone among other African countries were included in the list of states with ―minimal democracies‖2
Nigeria returned to civil rule on May 29, 1999. The 1999 elections marked the beginning of a transition from military to civil rule. The country held three elections, including the April 2007 elections that brought President Umaru Yar‘Adua to power following the victory of his party, the People‘s Democratic Party (PDP). Political transition advanced from 1999 to the next phase with conduct of the 2003 elections. In the lead-up to the 2007 elections, Nigerians were considerably hopeful that the elections would be free and fair. But there were concerns in many circles about the poor state of readiness of the Independent National Electoral Commission (INEC) and law enforcement agencies. The outcome of the April 2007 polls further betrayed peoples‘
1 See Table 1, Appendix 1 2 Doorenspled. R. (2003), ―Political Parties, Party System and Democracy in Sub Saharan African‖ in Salith MMM. A (ed) African political Parties Evolution, Institutionalisation and Governance London Pluto Press P.4
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confidence in the electoral system3 by a massive electoral fraud financed through money politics. Firstly there has been concerns with regards to the management of the 2011 and 2015 General Elections by the Independent National Election Commission (INEC) Despite amendments both in the Constitution of the federal Republic of Nigeria 1999(CFRN‘99) and the Electoral Act 2010 (as amended) to strengthen the capacity of INEC to deliver free, fair and credible elections, yet the INEC is constrained by certain structural and legal issues that require further amendments as discussed in this thesis. There has been considerable debate as to whether the existing legal framework for the prosecution of electoral offenders as encapsulated in the Electoral Act, 2010(as amended) is appropriate and adequate for the arrest, investigation and prosecution of electoral offenders. There has also been considerable debate as to the capacity and willingness of the Independent National Electoral Commission to prosecute electoral offenders in a professional and ethical manner. Debates are also ongoing as to the willingness of some elements within the political parties to act within the compass of the Constitution of the Federal Republic of Nigeria, 1999(as amended) and the Electoral Act, 2010 (as amended) for winning elections and abandon fraudulent means and ways of doing the same.
These debates are hinged on the fact that the refusal, inability or incapacity of the Independent National Electoral Commission to prosecute electoral offenders encourages electoral impunity, voter apathy and the gradual disengagement of the Nigerian people from the electoral process as some of them believe that electoral fraud and malpractices renders their votes meaningless and even if they vote, their votes may not count. The
3Adetula A. O. (2008) Money and Politics in Nigeria: International Foundation for Electoral System IFES- Nigeria, Maitama, Abuja p.15 Electoral Act, No2, 2006, Laws of the Federation 2004.
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debates are also hinged on the fact that if nobody is prosecuted successfully, it may then be more profitable to engage in electoral fraud and malpractices. By section 150(1) & (2) of the Electoral Act, 2010(as amended) an offence committed under the Act shall be triable in a Magistrate Court or High Court of the State in which the offence is committed, or the Federal Capital Territory, Abuja. A prosecution under the Act shall be undertaken by Legal Officers of the Commission or any legal practitioner appointed by it. However, the arrest and prosecution of electoral offenders have been fraught with a lot of challenges. The Police with the responsibility for the arrest, investigation and giving evidence in Court on electoral matters are sometimes posted out of their State Commands and moved to contiguous states on Election Day. This is done to ensure their neutrality on Election Day. Unfortunately, some of the officers on duty on Election Day are posted back to their State Commands after elections making documentation of electoral offences difficult and also making it difficult for credible evidence to be gathered and serious prosecution to be carried out.
Most electoral offenders are also not prosecuted because the Independent National Electoral Commission has Tess than 100 Legal Officers serving the Headquarters and the 36 State Offices including the Federal Capital Territory, Abuja and do not have the capacity and resources to prosecute offences committed in 119, 973 polling units, 8, 809 wards, 360 Federal Constituencies, 109 Senatorial Districts and 774 Local Governments in Nigeria. It is more difficult to see how legal officers of the Commission will prosecute about 870,000 cases of multiple registrations detected by the Independent National Electoral Commission during the 2011 voters registration exercise. Because offenders are hardly prosecuted and some get away with impunity on account of their political
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affiliation, impunity is recycled, people disengage from the electoral process on account of electoral fraud and violence, and the credibility of the electoral process is called into question. The effect of this state of affairs is that there is shoddy investigation and prosecution of electoral offenders. A research conducted by Human Rights Monitor on the Arrest and Prosecution of Electoral Offenders from January to March 2012 in 18 states of the Federation tracked a total of 2.94 cases, and out of this number24 cases had been concluded and sentences passed, 78 of the cases were struck out for lack of diligent prosecution, 181 of the cases are still ongoing. 6 of the suspects were discharged and acquitted and 5 suspects have not been charged to court. Unfortunately, attempts to amend the Electoral Act and create an Electoral Offences Commission through the introduction of an Electoral Offences Commission Bill have not materialized. This is curious because the Independent National Electoral Commission has stated clearly that it does not have the capacity and resources to prosecute electoral offences. It is therefore important to find out whether persons with vested interest in the perpetration and perpetuation of electoral fraud and malpractices are blocking the introduction and passage of a separate Electoral Offences Commission with powers to arrest, investigate, and prosecute electoral offenders. It is also important to project whether the passage of the Law will curb electoral fraud and raise the integrity of the electoral process. Thirdly, the Diaspora population in various countries contribute to the GDP in Nigeria yet the Electoral Act provision seems to disenfranchise them. They need to bring them into the main stream of the electoral process is necessary.