INEC’s Autonomy And Evidentiary Issues In Electoral Litigation, By Prof. Mike Ozekhome, SAN, CON, OFR, PhD
THE centrality of INEC – the nation’s electoral umpire – in its electoral ecosystem is self-evident. It is a case of res ipsa loquitor. It is constitutionally empowered to perform a variety of functions aimed at providing a level playing-field for the main actors: the political parties and their candidates. More on this shortly. As its name connotes, INEC is notionally independent of interference of any sort- particularly of the political kind. Again, this is a constitutional stipulation on which we shall elaborate anon. However, it is also a truism that to whom much is given, much is expected. Accordingly, the question is: to what extent, if any, has INEC been true to its mandate; and has it lived up to public expectation? Are there any inherent, systemic, legislative, executive or constitutional impediments which hinder it in its performance? This intervention will attempt to answer these questions, particularly the somewhat anomalous situation of a supposed umpire (or impartial arbiter) who also simultaneously wears the cloak of partisanship in election litigation.
LEGAL STATUS OF INEC
Section 153(1) of the 1999 Constitution sets up INEC as one of the executive bodies of the Federation. Section 153(2) thereof stipulates that its composition and powers are as contained in Part 1 of the Third Schedule to the Constitution. By virtue Paragraph 14 of this Schedule, the Commission consists of a Chairman and twelve members known as the Chief Electoral Commissioners, and National Electoral Commissioners, respectively. This provision also stipulates for Resident Electoral Commissioners for each state of the Federation as well as the Federal Capital Territory, all of whom shall be appointed by the President, subject to confirmation by the senate of the National Assembly. The commission is charged with the following responsibilities by virtue of – Paragraph 15 of the 3rd Schedule:
- The Commission shall have power to – (a) organise, undertake and supervise all elections to the offices of the President and Vice-President, the Governor and Deputy Governor of a State, and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation;
(b) register political parties in accordance with the provisions of this Constitution and an Act of the National Assembly;
(c) monitor the organisation and operation of the political parties, including their finances;
(d) arrange for the annual examination and auditing of the funds and accounts of political parties, and publish a report on such examination and audit for public information;
(e) arrange and conduct the registration of persons qualified to vote and prepare, maintain and revise the register of voters for the purpose of any election under this Constitution;
(f) monitor political campaigns and provide rules and regulations which shall govern the political parties;
The foregoing provisions are complemented by those of Sections 1 and 2 of the Electoral Act, 2022, which stipulate as follows:
(1) The Independent National Electoral Commission as established by Section 153 of the Constitution (in this Act referred to as “the Commission”) — (a) shall be a body corporate with perpetual succession; and (b) may sue and be sued in its corporate name.
(2) In addition to the functions conferred on it by the Constitution, the Commission shall have power to — (a) conduct voter and civic education; (b) promote knowledge of sound democratic election processes; and (c) conduct any referendum required to be conducted under the provisions of the 1999 Constitution or an Act of the National Assembly.
Additionally, Section 148 of the EA, 2022 empowers INEC to make subsidiary legislations (Guidelines, Manuals, etc). Pursuant to this last provision, the Commission enacted the Guidelines for the Conduct of the Elections, 2023 as well as the Manual for Electoral Officers, 2022. Both of these subsidiary instruments complement the provisions of the First Schedule to the EA, 2022.
Of particularly interest, in the context of this paper, are Sections 133(3) of the EA 2022 and Paragraph 51 of the 1st Schedule to the EA, 2022, which provide thus respectively:
– Section 133(3):
“If the petitioner complains of the conduct an electoral officer, presiding or returning officer, it shall not be necessary to join such officers or persons notwithstanding the nature of the complaint and the Commission shall, in this instance be-
(a) made a respondent; and
(b) deemed to be defending the petition for itself and on behalf of its officers or such the persons.”
– Paragraph 51 contains a similar provision, as follows:
“where an election petition complains of the conduct of an electoral officer, a presiding officer, returning officer or any other officially of the commission, he shall for all purposes be deemed to be a respondent and join in the election petition as a necessary party, but an electoral officer, a presiding officer, returning officer or any other official of the commission shall not be at liberty to decline from of opposing the petition except with the written consent of the Attorney-General the Federal.
INEC AS A PARTISAN IN ELECTORAL LITIGATION: ANY CONFLICT OF INTEREST?
The duality of INEC’s roles or functions as outlined above raise pertinent questions about its objectivity and capacity to deliver on the spirit (if not the letters) of its mandate (and indeed, public expectation), that it is a detached, unbiased and impartial umpire whose sole objective (at least, on paper) is to deliver free, fair, transparent and credible elections, no matter whose ox good. I submit that that expectation is highly unreasonable and the goal unachievable in the present milieu where INEC fiercely defends the result of any poll it conducted simply because it is obliged by law to do so – that is, by the aforesaid provisions of Section 133(3) of the EA 2022 and Paragraph 51 of the 1st Schedule thereto, which make INEC and its officials respondents to petitions.
This concern is by no means exaggerated as it is graphically and practically illustrated by the fact that INEC keeps custody of all the materials and documents used to record and document every election which it is legally charged with conducting as aforesaid. These include ballot papers, various forms and the controversial BVAS (Biometric Voter Accreditation System) Machines. I believe that this state of affairs all but cripples and handicaps an election petitioner who has valid complaint against the commission’s credibility and performance in the outcome of either an election proper or a party primary which produced the party’s candidate for the said election.
This is because, a situation where INEC as a party to an election petition or a pre-election matter is also the custodian of the very materials with which the election it conducts is sought to be challenged is obviously not ideal. It negates every motion of transparency and determines an election before it commences.
The reasons are clear: to expect the Commission to willingly oblige a plaintiff or challenger in such cases with the arsenal (as it were), with which to demolish or embarrass INEC itself is unrealistic if not fool-hardly.
Quite simply, only an INEC made up of angels will willingly do that. Hence, the experience – in virtually every pre- and post-election litigation – is that the petitioner will invariably be forced to go to the tribunal to compel INEC to furnish him (or her) with the electoral materials through the instrumentality of a court order served on INEC. But this hardly ever guarantees the desired results or objectives because, in respect of certain materials (particularly the ‘infamous’ BVAS machines), the Commission has always (deliberately and willingly) frustrated the petitioner by claiming that the materials were no longer available because they either do not have such materials (as in Atiku’s petition against INEC and Tinubu), or some have been reconfigured (or repurposed) for a different election. Given that this invariably means the complete and permanent obliteration of the information previously recorded or stored in or on that material, the consequences are more real than imagined. They are glaring. I personally witnessed this in some petitions I handled.
For example, the foregoing scenario played out in a petition challenging INEC’s declaration of Sen. Jarigbe Agom Jarigbe as the winner of the election into the Cross River North Senatorial election last year (Petition No: EPT/CR/SEN/02/2023). The petitioner (Sen. Ben Ayade) unfairly paid the price, as he was driven from the seat of judgement and justice by the alleged re-purposing or reformatting of the BVAS machines. But for that, he would have coasted home to victory as shown by available evidence. The verdict of the tribunal was upheld by the Court Appeal – the final arbiter in such contests. See the judgement of the Court in Appeal No: CA/C/EP/SEN/CR/11/23.
This obvious conflict of interest occasioned by the overlapping roles of INEC persists notwithstanding the fact that (as in Sen. Ayade’s case above referred to), the Commission is usually summoned to produce the BVAS machines through sub-poena, by a peremptory order of the tribunal to that effect. That the tribunal (and the Court of Appeal, subsequently) condoned such a disobedience of its own order remains a mystery. Court orders are meant to be obeyed, so goes the trite aphorism. See the case of BALONWU VS. GOVERNOR OF ANAMBRA STATE (2007) 5 NWLR pt. 1028 pg. 488 @ 564 B. The foregoing situation in respect by BVAS machine is also applicable to other electoral materials in custody of INEC. Mercifully, only last week, the apex court in the contributory judgement of Justice John Agim in the Kano State government election petition brouhaha decried the untidy situation in which INEC as the umpire refused to release electoral materials needed by a litigant to prove his case.
A situation where a party to a dispute submitted for judicial adjudication is in possession or custody of the very material which a litigant in that dispute requires to substantiate his or his grievances, leaves so much to be desired. It gives room for manipulation, contempt of court (where the production of such materials is the subject of a Positive Court order) and perversion of the course of justice. A better alternative is crying loudly to be found. I don’t pretend to have all the answers – or to know what that alternative is (or are). Suffice it to say that it is a mockery of the word ‘independent’ in INEC’S name for the Commission to be actively partisan in electoral litigation the way it has all along done. A starting point, it is humbly submitted, is placing the burden on INEC to prove that an election it conducted was done properly according to law. This may mean tinkering with the Evidence Act as regards burden of proof. In any event, since election petitions are sui generis, this would easily be accommodated.
This brings to mind the repeated admonition of the Commission by our superior courts that such a stance is inimical to INEC’S role as an impartial, unbiased empire. In this regard, the case of UZODINMA VS. IZUNASO (No. 2) (2011) 17 NWLR PT 1275 pg. 30 @ I8IF, readily resonates. The apex court, per Fabiyi, JSC, in castigating terms, held of INEC thus:
“The Independent National Electoral Commission as a body which is an umpire, should be seen to be neatly neutral at all times. In reality, a sympathizer should not weep more than the bereaved. Only hired criers at burials engage in such a mundane ploy.”
Will it take statutory or constitutional amendment to reverse the trend of seeming lack of independence and impartiality? I do not know or, do you? My humble take is that whatever it takes to achieve credible, free, fair and uncontroversial polls should be embraced. It is high time we discarded our reputation as one of the highest challengers of electoral outcomes within the comity of nations. It is a dubious reputation which we can well do without.