Senior Advocate of Nigeria (SAN), Femi Falana, has criticised the recently conducted elections, describing them as “expensive joke” and a waste of funds. He also criticised the All Progressives Congress (APC) led Federal Government for deploying soldiers for the elections, a move he said is unconstitutional. He spoke recently on a television programme where he advised on the need for an urgent reform of the electoral system.
What is your impression of the just concluded general election? Would you describe it as credible?
Frankly speaking, I have been extremely worried because when we were in the barricades fighting to get the military off our backs, we never thought in our wildest imagination that elections would not be conducted in accordance with the law. But from what we have seen, since 1999, the Nigerian political class appears determined to make a mockery of the electoral process, to insult our people, destroy the future of our youths and expose Nigeria as a country to ridicule before the comity of nations.
You had elections monitored by people from all over the world and what did they witness? They witnessed vote buying, snatching of ballot boxes, reckless killings, unwarranted intimidation and harassment of voters. If you see some of the scenes in Rivers and some other states, you would think that a war was going on. This cannot be what the constitution had expected to be a free exercise of the franchise of our people. But again, I must confess that I was not surprised by what happened.
We have repeatedly maintained that unless you combat and deal with official impunity that characterises our society and elections in particular, you cannot get out of this monumental mess. Some of those who are now shouting themselves hoarse, alleging electoral malfeasance were in power until recently. They enjoyed maximally, the manipulation of the electoral system. We all witnessed when some guy said they would be in power for many years. They knew that it wasn’t that Nigerians were going to vote for them, but they just felt that they would continue to manipulate the process. Under the Peoples Democratic Party (PDP), a sitting president said the election was a do-or-die affair for the ruling party and indeed it was such that in 2003, over 200 people were killed. In 2007, the Supreme Court pointed out that what took place was not an election but a horrendous intimidation of Nigerians. It also said that the military should have nothing to do with our elections. In 2014/2015, the All Progressives Congress (APC) as an opposition party went to court in Abuja, Sokoto and Lagos and recorded judgment to the effect that the military shall not be involved in our elections.
Before then, in the case between Obasanjo and Buhari, the President of the Court of Appeal, Justice Ayo Salami, did say that it has taken us a lot of effort to push the military but that the political class must make a lot of effort to allow the system to be operated in such a way that our elections would not be militarised. But what have we just witnessed under an APC government? Armed soldiers were deployed in violation of existing, valid and subsisting court judgment. I was laughing the other day when the Chief of Army Staff said that he was setting up a panel; to do what? Do you have any business with elections? Under the PDP, the late President Umaru Yar’Adua did admit publicly that his election was highly flawed and he promised to reform the electoral system. He then set up the Mohammed Uwais electoral reform panel which came up with profound recommendations, but the report was ignored. Former President Goodluck Jonathan also set up a post election panel after the violence in 2011 headed by Sheik Ahmed Lemu, and again the panel reiterated the recommendations of the Uwais panel and made further recommendations. President Buhari set up the Ken Nnamani panel on electoral reforms which also studied the two previous recommendations and made its own additional recommendations. Unfortunately, both the PDP and the APC governments have abandoned those recommendations.
We need to go back to the drawing table. Beyond the two parties, Nigerians must organise because this expensive joke cannot continue. This country spent over N250 billion from the public purse on this useless enterprise, apart from what each of the governors and political parties spent which is more than N250 billion. Now we are going to another level, which I call the tribunalisation of elections in Nigeria.
Are you worried about the many inconclusive elections?
Inconclusive elections are not strange; they are already part of this rickety electoral process. It is the way and manner that some of the politicians tried to blackmail INEC to the extent that they distort the recent history of our country. Guideline 47 issued by INEC in January states that if elections are marred by violence, if majority of voters in a unit or ward are not allowed to vote, then elections may be cancelled or declared inconclusive. In Rivers now, no one is sure of what happened, the election was suspended because of the level of violence.
We have had rerun elections in the past which were either won by the PDP or the APC or APGA in the case of Anambra. So let no one give us the impression that we have not had reruns before.
You talked about the political class and how they disrupt the electoral process. But how many of them played any prominent role in the process in Imo and Rivers states? How can we educate our people to avoid being used for political battles?
In 2013, we had almost 20 million children who should have been in school but were on the streets, we have close to 40 million illiterate adults in our country. Those who have graduated from school have no jobs to do, majority of them are roaming the streets. In such an environment, you could preach till the second coming of Jesus but that would not stop people from getting involved in electoral malpractices. To worsen our case, we have the reign of official impunity. All those who have been caught disrupting elections are agents of the politicians. In the past six months, the police have arrested over 2000 electoral offenders. What do we do with them? I can assure you that once the elections are over and new governments are inaugurated, the focus would shift elsewhere. Some of them would be arrested and be taken to court. But in each of the states, the Attorney Generals would be under pressure to discontinue the case and quietly all the thugs would go back to business. That is why it is an unending crisis.
How do we end this crisis?
The three electoral panels I referred to earlier agreed on the need for an electoral offences tribunal that would take over these cases like the EFCC or the ICPC and investigate them thoroughly and charge before the court those who were indicted. In fact, the Federal Executive Council under former President Jonathan, instructed the Attorney General to set the engine in motion for the setting up of the electoral offenses tribunal but no one seems interested in that.
Under the current dispensation, by virtue of Section 150 of the Electoral Act, it is the sole responsibility of INEC to prosecute electoral offenders, which is why the human rights community were able to assemble young lawyers from across the country to take up this challenge on behalf of INEC. We did it in 2011 and we were able to prosecute a number of electoral offenders.
Many have pushed for a more digital electoral process…
With the recklessness that is going on, that is not a solution; it would be difficult. Based on our experience, two of the oldest respected and professional bodies in our country, the Institute of Chartered Accountants of Nigeria (ICAN) and the Nigerian Bar Association (NBA), introduced electronic voting in their process. ICAN ended up in court because some people simply sat in their secretariat and conjured figures to make some people win the election. In the case of the NBA, in 2016, we ended up in court. In 2018, we are not only in court; the EFCC is also investigating what we now call in-rigging in the NBA. When I read the report of the NBA electoral monitoring committee, I laughed to myself, because I asked how they can monitor elections when they cannot conduct their won elections.
What hope can those who go to the tribunals possibly get?
I support those who are going to court because it is necessary for us to document the atrocities that were committed with the hope that one day; Nigerians would be prepared to ensure that the electoral system is reformed. If we are going to do that now, we are going to fall back on some of the previous cases. But with respect to getting justice from the courts and the tribunals, our electoral jurisprudence is erected on the platform of technicalities and crass legalism to the detriment of justice. In other words, the onus is on you to prove the manipulation of an election.
For instance, if you allege that an election has been manipulated, because the allegations are usually criminal, you are required to prove beyond reasonable doubt that it was manipulated. It is worse now, unlike before, where elections were annulled in a few states. With only 180 days, it is difficult to prove election petitions successfully because in the Buhari and Obasanjo case, the Supreme Court did say that you will need 250, 000 to 300, 000 witnesses to prove that a presidential election was badly conducted. How do you do that within 180 days? In fact, what the Supreme Court says when there was no time limit was that by the time you conclude such a petition, the clear winner of the election would have completed his term.
If the electronic voting would not work, what is then going to work?
We know what happened in Kenya when the government was alleged to have hacked into the system and the election was compromised such that the Supreme Court of that country had to annul the election. Here, with a political class that is not really prepared for credible elections, we are going to have problems. I have been having sleepless nights over the development that we have witnessed over the last couple of weeks and I have been compelled to have another look at the option A4. Why many people opposed to option A4 is because it did not protect the secrecy of the ballot by asking you to queue behind your candidate, if you look at the history of our country, the option A4 has been the most credible. Unfortunately, the political class has dehumanised our people, such that when you vote now, before you drop your ballot paper into the box, you will have to show it to someone so that you can collect your money later.