By Tony John
Discourse about 2023 has for some time engaged the attention of the nation, even in the face of the worsening insecurity and calls for self-determination. Meanwhile, the amended Electoral Act, which is to guide the conduct of elections, is yet to become law. In this interview, renowned constitutional lawyer, Festus Ogwuche, bares his mind on this and related issues.
How do you feel about the clamour for review of the Electoral Act which has been before the National Assembly for some time?
The growing agitations for reforms in our electoral system stem from the inherent flaws and inadequacies visible in the current process, to the end that our democracy is lost on the core values and essence of a truly democratic tradition. Since the advent of our current dispensation, what we have on the ground are pseudo democratic practices that permit of heists, and manipulation in the electoral process. That was why President Umar Yar’Adua, who was dissatisfied with the process that produced him as President, constituted the Hon. Justice Mohammed Uwais panel to take a look at the prevailing practice, identify the gaps and loopholes that provide the leeway for electoral fraud and make recommendations. The panel made the following core recommendations: autonomy and independence of the Independent National Electoral Commission (INEC) in terms of its composition, appointments, finance and statutory operations. It sought for the unbundling of the electoral body into three separate commissions for political party registration and regulations, electoral offences and constituency delineation. It went further to define in elaborate form the role of the security agencies in the electoral process and generally sought to bring the conduct of elections within the ambit of, and in conformity with the African Union Declaration on the Principles Governing Democratic Elections in Africa and the accompanying regional protocols which were the main focus of the committee’s work. Most importantly, it sought to alter the existing law that places the evidential burden of proof on the petitioner in post-elections adjudication. Sadly, the then Assembly accepted the few that pandered to their interests and outright discarded the rest which essentially were those that constitute the main kernel of the recommendations. The Uwais Panel Report has the solution to all the malfeasance, violence and rigmarole that have beset our elections and taint them with crudeness and fraud. Unfortunately, till this moment, we still largely operate the electoral system which prompted Yar’Adua’s patriotic zest into constituting the Uwais panel. Rather than seek ways for the overhauling of the system we have an INEC that’s more inclined to creating polling booths and churning out timetables for the 2023 general elections and that makes me shudder because it’s taking us nowhere in the advancement of our democratic credentials and constitutional practice. Thus, reforms are meant to bring integrity and transparency to the conduct of elections and to remove them from the mould aptly described as ‘hollow rituals’ to ones that are realistic, credible and acceptable in tandem with global best practices and values on democratic tenets.
Can Electoral Act reform work effectively without judicial reform?
It is clear that the Electoral Act Amendment Bill 2008 lacks the capacity to effect the necessary changes that will put paid to all the vice that are perpetrated under the current legal and operational framework, in the manner the Uwais Report would have effectively done. It does not give any assurance of tackling all the vice in the system particularly in its failure to make for a truly independent electoral body amidst the institutional checks. The target should be on ways to get stakeholders including the passive and active participants to look at elections simply as a process, and not warfare. But that would also entail much wider reforms in the other democratic institutions particularly the judiciary and this must proceed contemporaneously with equally vigorous reforms in that prime sector. The Constitution, Electoral Act and the Rules of procedure, and practice directions of the different courts recognise the critical position of the tribunals and courts in resolving pre-and post-election disputes through adjudication. This must be factored into the consideration for electoral reforms against the backdrop of the need for electoral justice and the creation of a veritable ambience for the principles of democracy to thrive within the polity. The bulk of the problems that arise from elections conduct come from the interpretations given to the relevant provisions of the law by the courts and this conversely flows from the inadequacies and gaps in the extant laws and regulations including the constitution. A good measure of guidelines and principles on the resolution of electoral disputes are necessary to keep the courts within the bounds of judicial and judicious discretion and electoral justice beyond the scope of the practice directions which only emphasise on speedy adjudication within time frames and nothing more. This is more so as the interpretations the courts give to the law in election cases create precedents that have immense impact on the electoral body and other stakeholders and to a large extent regulate their operations and conduct. Some appreciable level of judicial activism is necessary here as we had in the second republic where the courts played a vital role in ensuring that there was no usurpation of the democratic space by the ruling party. In that circumstance, the court’s role is sacred in ensuring that the streams of justice remain as pure as possible towards the justice ideal in the manner stated in the words of Lord Justice Hewart – that justice should not only be done, but should manifestly be seen to be done. The judicial powers reside in the courts by reason of the Constitution and it is within their forte to checkmate the excesses of the political class who act with desperation, particularly in the area of elections. Frankly speaking, from what we are seeing around us, it is clear that very wrong people are enthroned in the very strategic areas of governance and across the terrain and this indicates judicial failure. Judicial office is herculean and eyebrows were raised when some time ago certain persons returned to the apex court asking that the decisions that were unfavorable to them be capsized. In my quiet moments and as I reminisce each time over that given scenario, it calls for reflection the solemn words of Lord Denning that Justice being rooted in confidence, confidence is destroyed when right minded people go away thinking the judge is biased. The supremacy criterion given to particular courts within national jurisdictions is not in practical reality (as Justice Oputa told us), an ascription to perfection or infallibility, but constitutional privileges conferred on them as the final adjudicators in the land. It carries with it some responsibilities that are eternally compelling by reason of the finality of their decisions. The extent to which these obligations are met are measured by the quantum of justice in the decisions that emanate from such courts, and not necessarily the oft recourse to supremacy. There cannot be an effective reform of the electoral process without corresponding judicial sector reforms to make for a wholesome elections conduct and processes that can stand the test of time.
After two decades of the present political dispensation, it is still referred to as nascent democracy. Is Nigeria’s system not practicable?
Yes, and surprisingly we are still dangling weakly with uncertainty on the throes of democracy. We are confronted with the paradox of a democratic system that’s rolling backwards rather than advancing forward towards set goals and aspirations. Today we are practising a strange brand of democracy that is garbed in the apparels of tyranny and outside constitutional contemplation. The recent call by a learned senior colleague for the military to intervene may be somewhat inappropriate in the circumstance, but could be an expression of how grim the situation truly is. Apparently, the situation we have now is the direct consequence of the sustained drab practice, since 1999, of having the wrong people in responsible positions of authority through fraudulent elections that short change and circumvent the exercise of the peoples’ will.
In clear terms, who or what is killing Nigeria’s electoral process?
Incidentally, certain fundamental issues are yet to be resolved and sentiments are expressed on the appropriateness of our federal structure and the legitimacy of the constitution. These warped contraptions that tend to alienate the people from the streams of governance constitute the weakening factors that distort the democratic terrain and instigate bad elections conduct. Quite unfortunately these disabling factors have made inroads into the judicial system and I expressed serious concerns on this upon the removal of the Hon. Justice Walter Onnoghen as the Chief Justice of the Federation. While we may not delve into the nitty gritty of the unending cycles of errors and indiscretions in the system, suffice it to mention that credible elections and post-election adjudications devoid of travesty, give birth to strong, virile democracies and that should be our focus at this critical time.
There is countdown to 2023 general elections. Yet, the Electoral Act is yet to be fine-tuned. Do you have any fear on its passage?
There is the visible reluctance and lack of will by both the President and the National Assembly to bring forth much sought amendments to the Electoral Act by adorning the bill with the vestment of law. It is not a surprise to me though as this has over the years been the attitude of those in power and their penchant for rejecting anything that is capable of turning the tables against them. This was the same approach of the legislators of the 7th Assembly, which in spite of the lofty objectives of the Uwais Report, took one look at it and literally threw it into the dustbin. But then I am convinced that it behooves the legislature to invoke the appropriate provisions of the Constitution (Section 58, subsection 5) to bring the amendment bill into law in the true exercise of their legislative powers, particularly in this case when the President is hedging and equivocating on the issue, and put a hold on the unnecessary blame game and buck passing between them.