By Professor Ben Nwabueze
The one-week postponement of the General Election, announced by the INEC Chairman, Professor Mahmood Yakubu, four hours or so before the time scheduled for it, has not only compromised or undermined the credibility of the elections whenever they are held, but has also brought forcibly to the fore the truth that INEC is not truly an independent electoral umpire, contrary to the word “independent” in its name.
In an Address to a meeting of stakeholders on the same day the postponement was announced, Professor Mahmood eloquently pleaded logistical and other problems as the reasons for the postponement. But the central issue raised by the postponement concerns the consequences and implications which the postponement has for the credibility of the elections, whenever they are held, not the reasons for it (i.e. postponement). The postponement has created so much suspicion in the minds of millions of Nigerians, and so much questioning as to what is the real reason for it, and what are the unseen forces manipulating INEC.
More specifically, the question Nigerians are asking is whether it is really possible that such a grave decision, as the postponement of the General Election, affecting the vital interests of the country, its domestic as well as global interests, and involving huge financial and other costs, could have been taken by a so-called independent electoral commission four hours before the time scheduled for it, without reference to, and without the knowledge and at least acquiescence of, the President of the country. If it is possible, then, anything is possible in Buhari’s Nigeria.
The suspicions, thus generated, being emanations of the mind, are not easily dispelled, once created; they compromise or undermine the credibility of the elections, whenever they are held. That is the measure of the catastrophe Professor Mahmood Yakubu has brought upon the country. Credibility presupposes and is built upon public confidence or belief in the competence of INEC. Even President Buhari himself has described the postponement as an act of incompetence, whatever the reasons for it, which are of questionable justifiability, anyway. Professor Mahmood should be left to conduct the elections on the rescheduled dates, but thereafter removed from office for involving himself or allowing himself to be used for such a discreditable act.
The 2019 Presidential Election means for Ndigbo more than what it means for other Nigerians; it means for us self-survival. From where we were before, we have been reduced to less than second class citizens. The electoral victory of Atiku Abubakar/Peter Obi ticket is necessary for our self-survival. Ndigbo must therefore not be discouraged by the postponement, but must turn out massively to vote for the survival of the race, whatever the inconveniences and whatever the sacrifices entailed.
The postponement of the elections forces us to address the long-term issue concerning the independence of the electoral body. The 1999 Constitution changed the name of the Commission from FEDERAL ELECTORAL COMMISSION, as it was under the 1979 Constitution (section 140(1)) to the INDEPENDENT NATIONAL ELECTORAL COMMISSION (section 153(1)). The significance and implication of the change seems to be lost on us, as we appear to take the change as a mere change of name devoid of any serious implication.
The implication of the word “Independent” in the name of the Commission is to make the Commission’s independence a specific constitutional requirement, and to give it paramountcy over everything else. It is a contradiction of the significance of the change to think that an electoral commission whose members are appointed by the President and may, subject to some restrictions, be removed by him, can be truly independent of him, especially where his overriding interests in his continued stay in office are involved, as they are when he is a candidate seeking re-election for a second term. In a situation where a President, invested with power to appoint and remove members of the Commission, is a candidate seeking re-election for a second term, the Commission would be other than human if it claims to be entirely free from bias or partiality in the conduct of the election. The independence of the Commission in such circumstances is not much more than a farce, as it is in the present case of President Buhari and INEC. INEC is, in real, practical terms, an instrument of President Buhari in his bid for re-election for a second term.
It is remarkable that the 1999 Constitution contains no specific provision implementing the constitutional requirement implied in the word independent appearing in the name of the Commission. In this respect, the 1999 Constitution is a departure from the 1960 and 1963 Constitutions.
First, whilst the provision in the two Constitutions was by no means adequate, they provided that “in the exercise of its functions under this Constitution, the Electoral Commission…..shall not be subject to the direction or control of any other person or authority.” The words “in the exercise of its functions under this Constitution” are italicized to emphasize that the purpose and concern of the provision was to free the Commission from control or direction in the conduct of elections. The provision is thus in the nature of a constitutional guarantee of the independence of the Commission from outside interference in the conduct of elections: it is a constitutional prohibition of such interference. The object was to secure and protect the neutrality of the Commission as an electoral umpire.
The guarantee and prohibition was removed in the 1979 and 1999 Constitutions and replaced by a new provision totally irrelevant to the evil calling to be redressed. The new provision merely states that “in exercising its power to make appointments or to exercise disciplinary control over persons….the Electoral Commission shall not be subject to the direction or control of any other authority or person”; sections 145(1), 1979; 158(1), 1999 Constitution. The removal of the old provision and its replacement by the new one must be one of the several changes unilaterally inserted into the 1979 Constitution by Obasanjo’s absolutist Federal Military Government after the draft of it has been passed by the Constituent Assembly. Freed from the prohibition of the old provision in the 1960 and 1963 Constitutions, President Obasanjo as civilian President was thus able to subject the Commission to manipulation of various kinds, as President Buhari is now doing, albeit through invisible influences. The guarantee and prohibition in the 1960 and 1963 Constitutions should be restored in any review of the 1999 Constitution.
Second, the independence of the Commission from control and direction by the Federal Government was sought to be further secured under the 1960 and 1963 Constitutions through the provision that prescribed the membership of the electoral commission as consisting of a chief electoral commissioner and one person representing each Region of the Federation appointed by the Prime Minister in consultation with the Premier of a Region in the case of the member representing his Region – sections 45(2), (3), (4) & (9), 1960 Constitution; 50(2), (3), (4) & (9), 1963 Constitution. It is common knowledge how ineffective this provision proved in securing the independence of the Commission against control and direction by the FG. The representative of one of the Regions on the Commission protested vehemently against the manipulations of the Commission by FG, using its chairman, and resigned.
With this experience, the issue became a subject of intense debate in 1976 – 78 both in the Constitution Drafting Committee (CDC) and the Constituent Assembly. The idea that overwhelmingly conditioned the discussions and decisions in both bodies was that the unity of the country would be better assured by concentrating so much powers at the centre.
In spite of the prevailing but misguided mood at that time to concentrate powers at the centre, the representation of each State on the Commission by a member nominated by the State Governor was nevertheless retained in the 1979 Constitution as a way to try and reconcile the autonomy of the State Governments with the arrangement of one common electoral commission to conduct the election of the political organs of both the Federal and State Governments : see para 6(a), Third Schedule to the 1979 Constitution. But the representation of the States on the Commission was done away with by the 1999 Constitution enacted by the military, which simply provides that the Commission shall consist of a chairman and twelve members appointed by the President (para 14(i), Third Schedule.)
The issue remained a critical concern to the Goodluck Jonathan Administration which, in response, set up an Electoral Reform Committee (ERC) under the chairmanship of the former Chief Justice of Nigeria, Justice Uwais. The Committee’s recommendation, which the Government rejected is that, as respect the chairman, the deputy chairman and the member representing each of the six geopolitical zones, the National Judicial Council (NJC) should :
- advertise the positions spelling out requisite qualifications;
- receive applications (nominations) from the general public;
- shortlist three persons for each position; and
- send the nominations to the National Council of State to select one from the shortlist and forward to the Senate for confirmation.
As respects the members representing the designated organizations,
(i) each such organisation should send 3 nominees to the NJC for screening;
(ii) the NJC shall screen the nominations and make appropriate recommendations to the National Council of State which shall further screen and recommend one name for each category to the Senate for confirmation.
Except for reasons of personal self-aggrandisement and the selfish desire for power, the FG could have no good genuine reason for rejecting these reasonable and well-considered recommendations. His chairmanship of the National Council of State gives the President ample opportunity to participate fully in the appointment process. Not having good, genuine reason for rejecting the ERC recommendation, it (the FG) resorted to the lame, untenable and implausible argument that the recommendations violate the doctrine of separation of powers as its reason for the rejection. The rejection is really baffling and astonishing. Perhaps, the President should be involved further in the process by making him the authority to formally appoint or remove the chairman and members of the commission after the process recommended by the ERC has been complied with.
Conscious of the
overwhelming cruciality of the independence of an electoral umpire on the
peace, stability and unity of the country, South Africa has devised an
elaborate scheme designed to assure the independence of its electoral body, and
from which our own ERC drew much of the ideas that formed the basis of its
recommendations.
The scheme, which has proved effective in practice in securing the independence of the country’s electoral commission, has three components. The first component is concerned with the process of the appointment of members of the Commission, including its chairman. The process is spearheaded by a panel established by law under the chairmanship of the Chief Justice of the Constitutional Court, with one representative each of the Human Rights Commission, the Commission on Gender Equality and the Public Protector. The process begins with the panel calling for nominations by the public. The panel then draws up a short-list from the candidates nominated by the public and conducts a public interview of the short-listed candidates. The short-listing of candidates is required to meet “the principles of transparency and openness” and to have “due regard to a person’s suitability, qualifications and experience.”
After the interviews, a final short-list of not less than eight candidates is drawn up by the panel and submitted to a committee of the National Assembly, which in turn makes its own nominations to the National Assembly from the candidates short-listed by the panel. The National Assembly, by a resolution of a majority of its members, then recommends to the President, candidates on the committee’s list from which to appoint members of the Commission, two of whom are to be designated Chairperson and Vice-Chairperson respectively but the President may not appoint as member a person who is not recommended by the National Assembly, or who has a “high party-political profile.”
Second, the Commission is constituted and designated as an agency, not of the Executive, but of the National Assembly, to which it is made accountable and must report its activities and the performance of its functions at least once a year, which implies that its members owe their tenure of office to the Assembly.
Third, by the express injunction of the Constitution, “no person or organ of state may interfere with the functioning of the Commission”. The members too are expressly enjoined to be impartial and to “exercise their powers and perform their functions without fear, favour or prejudice.”
After nearly four years in office, President Buhari has shown no consciousness or concern about the cruciality of the matter, not to talk of taking any action to address it. He is content to install as Chairman of INEC on 21 October, 2015, a fellow moslem from Bauchi State in the far North, Professor Mahmood Yakubu, an outstanding historian and intellectual, replacing Amina Zakari, a lady and a moslem northerner, whose appointment as acting chairman generated so much controversy. By these appointments, President Buhari is seen as preparing the ground for manipulating the 2019 election. In this connection, it may be recalled that Amina Zakari succeeded Professor Attahiru Jega, another moslem northerner.
Final Remarks
As a final remark, let us remind ourselves that INEC, responsible for the conduct of the general elections throughout the country, is an agency of the Federal Government (FG), and that the postponement affects the election of not only the political organs of both the FG, the President and the two Houses of the National Assembly but also those of the State Governors and the State Houses of Assembly. There is hardly a more blatant contradiction of true federalism, on which our demand for re-structuring is based, than that an agency of the FG should, under the Constitution of the federal system, be charged with responsibility for the conduct of the election of the political organs of both the Federal and State Governments. As we march towards the re-structuring of our federal system, the postponement of the 2019 General Elections, caused by the incompetence of the federal agency responsible for its conduct, compels us to reflect on the imperative necessity of devolving to the federating units (the Zones or States) the power to organise and conduct the election of their political organs.