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Published On: Thu, Feb 27th, 2014

Blueprint for fighting electoral impunity

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By Chidi Anselm Odinkalu

In June 2013, the National Human Rights Commission launched a review to find out whether the decisions of Nigerian courts and tribunals on legal challenges to election returns disclosed any evidence in support of criminal, administrative or other misconduct by or against any known persons. The review team comprises seven outstanding academics and administrators, one from each of the six geo-political zones of Nigeria. It is chaired by Professor Nsongurua Udombana, former Dean of

Law at the University of Uyo.

After seven months, the Udombana Committee today, 20 February 2014, presents its Initial Report to Nigeria and friends of Nigeria. The investigation on which this report is based starts from the premise that in elections, citizens exercise a human right: to decide who governs them and choose the political programme that best advances their aspirations. It argues that any misconduct that has the tendency

to frustrate the free expression of this right is in fact a human rights violation, whose perpetrators should be held accountable in criminal law or through administrative process.

The report marshals compelling evidence in support of this central argument. Much of this evidence makes grueling reading. It’s not pretty.

In the words of the report, “elections [in Nigeria] have historically been akin to organized crime”. In support of this, the report documents what it describes as an “extensive pattern of judicially sanctioned criminality” including “inflation of the numbers of ballots cast, forgery of election returns, and intimidation of voters and election officials at polls”. So far, all this seems rather normal to any casual follower of our

elections. The rub in this report is that the evidence for these crimes has always been in plain sight – contained in the judgments of courts and election petition tribunals. The unique thing here is

“judicially sanctioned criminality”. The footprint of these crimes is in all corners of Nigeria. The people involved include election administrators, elected officials, security agents who were supposed to protect the ballot; political parties, and their agents.

The report documents cases in which the courts found as a fact that the election administrator also signed the result sheets as a party agent, destroying the very essence of an electoral umpire.

In other cases, security agents shot at voters to frighten them, before snatching ballot boxes in order to stuff them. Forgery of everything from candidates’ credentials and result sheets in discrete

polling units to the returns for entire constituencies appeared routine.

In some cases, the courts found as a fact that the number of ballots cast had exceeded by more than two hundred per cent the number of registered voters. In one State, the Tribunal was reduced to

complaining the electoral commission wanted it to “tacitly endorse abracadabra”, in effect to perform magic. So, having found such crimes established, what did the courts do? According to the report: “In each of these cases, and many more, the Tribunals, without exception, failed to direct, suggest or order

action to ensure accountability for the crimes they identified were committed. By doing so, the Nigerian judiciary has created the impression that there is one law for poor people and another for the big men and women who put themselves forward for elections. As a result, the courts not only facilitate the violation of citizens” rights to effective participation in their government, they also aid the culture of impunity that has become the hallmark of elections in Nigeria.”

The report is relentless. It astonishingly accuses the Supreme court of “playing ‘a discreditable part’ in sustaining electoral impunity in Nigeria.” This conclusion should focus minds because it identifies what we must do differently in the next election and frames how we can do it. In fairness, most people do not expect perfect elections. But most are entitled to hope that the next should be better than the last. That is

the way that societies progress – in increments of improvement. So, how do we achieve this? In this, the Udombana Committee Report is innovative. It dispenses with the usual hand-wringing of calling for

the creation of new institutions or for the suspension of everything until constitutional amendment. By posing the credibility of our elections in Nigeria as an accountability problem, this report challenges everyone – government in all its branches, ministries, departments, agencies, officers and institutions; political, civic and faith leaders; the academe and the media; as well as citizens – ton play their part as instruments of accountability. How? It challenges judges who find in cases before them credible evidence of crimes, to order the responsible agencies to prosecute. It asks INEC as well as the security agencies to publish and maintain registers with the names of all officers whom they have previously disciplined for election-related malfeasance. It asks the judiciary to do the same with respect to judicial corruption or other mis-conduct in election-related cases. The report challenges the NHRC to stop diminishing itself as if it were an NGO election observer and to prioritise the protection of the right to participation through advocacy for accountability for its violation in our elections. It equally challenges Nigerian citizens to

use the Freedom of Information Act to ensure that those who have been involved in election-related crimes are excluded from participating in conducting elections. These recommendations are sensible, measurable, and realistic. The report itself is timely. Its contents are surely not pretty, but in its honesty and accessibility, it calls attention to the issues that will define whether or not – and if so, how – democracy is consolidated in Nigeria. With one year to arguably the most competitive elections in Nigeria’s history, this report offers a refreshing roadmap for all who seek power in Nigeria or wish the country well.

Professor Odinkalu is chairman of the NHRC.

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