By Dickson Omobola
The Executive Director of Yiaga Africa, Samson Itodo, in this monitored interview, spoke on issues concerning the amendment of the country’s electoral laws and processes.
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Excerpts:
First, will the burden of proof on INEC solve some of our election problems? Second, can you talk us through this trying to shift the election dates that they have been talking about. Third, can you talk us through the use of the INEC Result Viewing portal, IReV, portal and the data centre, the data coordination of the election?
I am currently in Lagos ahead of the retreat because I am a member of the technical committee to review the Electoral Act. What the proposal is saying is that when there is an allegation of fraud or where there are questions as to the credibility of an election, the burden should not be on the litigant or the petitioner or the respondent, as the case may be. The burden should shift to INEC.
And the reason why this proposal is important is that what we have seen over the last couple of years is a situation where someone feels cheated in an election, in fact, even when there is evidence that someone has been cheated and there is fraud, to prove their case, they need access to certain documents and materials that are in possession of INEC.
We have seen how there have been obstacles put in the way of litigants who want to ventilate their grievance, but they cannot access those materials. It is either you have other opponents or politicians deploying thugs to disrupt the inspection process, or you even see a situation where INEC is reluctant to grant access to those documents. In this particular instance, if the burden shifts to INEC, INEC will now be compelled to say if you claim that you have organised credible elections, then come and prove it and establish that you have fulfilled all the conditions for the credibility of the election. That is the whole proposal, and it enjoys wide support.
The second proposal is around shifting dates. Nigerians have been clamouring for an amendment to the Constitution so that all election disputes can be resolved before the swearing-in of the winner of an election. To do that, you have to alter the timeline. This is because the Constitution provides that elections shall hold no earlier than 150 days, and no later than 30 days to an election.
There is about a five-month period. But when you look at the total number of days that is required for determining election cases, sometimes it spills over. You see situations where someone is already in office, they have access to state power and resources, and they can use that to influence judicial outcomes.
This is why this proposal has been put forward. Therefore, you have to alter the timelines. Elections will now be held sometime around November or December. After the elections, between December or November to April, the matters would have been dispensed with. And so whoever is assuming office can assume office without any distraction of litigation. The last point is about electoral technology. As you know, in the last election, the IReV played a critical role.
Unfortunately, the courts adjudicated and said the IReV is not part of INEC’s collation, a position that some of us do not agree with because the INEC guidelines clearly make prescriptions on electronic transmission of results. But the courts have ruled, and what the Senate and the House of Representatives have now done is updating the law in such a way that it takes care of electronic transmission and manual transmission.
The whole point is not to substitute one for the other because technology does have its vulnerabilities. So you still need the manual transmission and electronic transmission to go hand in hand. It is good to see the senators debate this issue, unlike the last time when there was no consensus. It was a tall order in the last National Assembly to even discuss the issue of electronic transmission. But it is heartwarming to see that these provisions are already contained in the bill.
On the independence of INEC, which has come up a number of times as being one of its bane. How will this bill, if passed, address that issue in terms of the process of appointment, not just of the INEC chairman, but also returning officers across states?
The challenge of INEC is not technical. INEC’s biggest problem is political in nature. It is about political interference with the electoral commission. I will highlight a few areas where this really happens. When you think about the appointment process, it is a constitutional matter. There are proposals that the power should be removed from the president, which we strongly agree with under the new INEC campaign. I doubt, to be honest, that that particular provision is going to pass the proposal that the power be removed from the president. I do not think that it is going to pass for very obvious reasons in this presidential system of government, it would take a statesman who is a president to amend the constitution to reduce his power. Personally, I want the president and the National Assembly to shock some of us, but I am not optimistic that that particular proposal will sail through.
For some of the proposals in the electoral bill, yes, they strengthen INEC’s independence, but the bigger question is, one, when you think about INEC’s independence, let us look at electoral procurement. Will the politicians allow INEC to select the vendors that deploy materials and services to the electoral commission? Because politicians have some of these companies, they put a lot of pressure on them. If you think about a domain where INEC asserts its independence, that is one domain in the procurement of electoral materials.
The second, when it comes to issues around results management, will INEC be shielded from every form of pressure from either incumbents, whether at the state or the federal level, to influence electoral outcomes? That is also the other issue. The third point, when you look at INEC’s independence, is in the recruitment and the appointment of its collation officers as well as ad-hoc officials. We have seen cases where politicians recruit their adherents to become ad-hoc officials.
These are domains, and where we will be watching the current INEC chairman is to see how he is able to assert the independence of the electoral commission and ensure all the other agencies do not assault the independence. For instance, the security agencies. INEC is not a security institution.
If INEC does not enjoy the support of security agencies, it is not going to make any headway with our elections. If INEC does not get the funding that it requires from the federal government, the next election is estimated to cost Nigeria over N870 billion. The big question is whether the federal government will release the money in due time, even though the electoral act provides that that money for elections should be released to INEC one year before the elections.
If you think about inclusion, part of the proposal, especially in the House of Reps version of the bill, is this point about early voting. On the day of an election, journalists will be either in the studio or covering elections. And that is not proper for a country that practises constitutional democracy. Everyone has a right to vote, but media, security agencies and INEC officials are unable to cast their votes. So one of the proposals is to have early voting.
When you introduce early voting as contained in the proposals, whether it is the media and all those who are involved in election security or providing election services, will be able to cast their vote at elections. Early voting is one particular way of deepening the inclusiveness of the electoral process. When you think about women and persons with disabilities, ensuring that the entire party primaries are not structured in a way that they are determined by the highest bidder and the highest spender, that women and persons with disabilities and young people are able to secure party nomination, that is one aspect requiring a bit of deeper reflection and also proposal to strengthen that entire system so that this commodification or buying and selling that we see during primaries is reduced to the minimal level.
There is a proposed amendment to section 12, subsection 1D and subsection 2, which is seeking to recognise the voting rights of inmates. Now, this is a contentious issue worldwide, but when we look at the peculiar issues we have in Nigeria, are we ready to grant inmates the right to vote? How will that work?
I am glad that that really came up because that is one of the landmark proposals in the current amendment process, and I really congratulate the two committees in the Senate and House for putting this on the table. A few weeks ago, Yiaga Africa with the European Union hosted a technical workshop on this subject matter. The Comptroller General of the Nigerian Correctional Services, the outgone INEC Chairman and then members of the Senate and House Committee were in that workshop in Abuja, where we unpacked this entire proposal.
I think that the point that the new INEC Chairman made during the confirmation hearing, that no voter will be left behind, is very profound and instructive. There is no law in today’s Nigeria that prevents inmates from voting. Whether there are 86,000 of them or even 100,000 of them in both federal and state prisons, there is no provision anywhere that hampers the exercise of their right to vote. So we need to look at this from a rights perspective, that these individuals are being denied a right that they have. The second point, when you think about logistics, quite frankly, what the proposal is saying is, it is actually simple. In terms of voter registration, INEC would deploy its officials to register inmates in the prisons, those who are not registered, because some of them before being sentenced to prison, some of them perhaps might be registered voters, so there could also be a transfer of registered details. Before the election, every voter, every political party will have access to the list of registered voters in the prisons. In the same way, in today’s Nigeria, every political party has access to the voter’s register, based on the provisions of the law. Now, in polling units, INEC can create polling units in the prisons. In countries like Zambia, South Africa, Kenya, in fact, even in Ghana, these things happen, and it is just a simple process. You just adopt the same strategy and approach for the general voting, for this particular special voting arrangement. I don’t think that logistics will also pose any challenge. The bigger question is we need to recognise that people have a right to vote, and the right to vote is sacrosanct in a democracy, except if we say we are no longer a democracy or we are something else. But so long as we are in a democracy, the right of every voter is sacrosanct and it needs to be protected. The burden is on the state to make provisions to safeguard their rights. That is why in other countries, you have voting by proxy. We are not saying in Nigeria you should introduce voting by proxy, but it is to tell you how other countries cherish and value their right to vote.
And I do not see any reason why we should not explore things like inmates voting and early voting.
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