Paper to be presented at African Network of Constitutional Law Conference in Dakar 2008
Prof. Deji Adekunle
Nigerian Institute of Advanced LegalStudies
University of Lagos Campus
PMB 12820
Lagos
Tel 234.1.5820749 Mob 234.803.3947747
Fax: 234.1.4976077
EMBS AND THE MANAGEMENT OF ELECTION RELATED CONFLICT
In democratic societies, elections are considered a fundamental means of resolving conflicting interests of political actors and more particularly the constituent parts of the society. Conflict is an incidental feature of democratic societies and it can in the context of elections lead to strife and insecurity in any society that fails to manage it effectively. Representative governance is the fulcrum on which democracy and this is clearly expressed when voters choose their representatives in an election.In many ethnically diverse societies elections are accepted as the most viable means by which individual ethnicities can participate in governance. Generally representation is in proportion to the size or population of communities however in some countries the electoral system accommodates guaranteed representation for minorities as well as women. Many African countries that have recently democratized face major challenges of election related conflicts and political stability. The paper primarily evaluates from a comparative perspective the role and strategies of the INEC (Nigeria’s EMB) the management and resolution of electoral conflict.
It is a common misconception particularly with lawyers to assume that conflict in the context of an election arises only after votes are counted. This has often shaped the intensely legalistic approach in countries like Nigeria to the resolution of conflicts. In reality conflict often arises at the preparatory stages for an election, well before the votes are cast. The delimitation of electoral boundaries or constituencies, registration of parties, candidates and voters, the campaign process and media access are potential conflict flashpoints which if not satisfactorily managed can aggregate into a groundswell of grievances and cynicism that threaten or compromise the actual voting or counting of the votes. The central institution in all these is the EMB whose primary responsibility is to prepare for and conduct elections, the constitution and powers of such a body must be designed to guarantee independence from the ruling executive (or party in power). Its membership and procedures must be such as will generate the confidence of political actors as well as the electorate. This normally entails a process of vigorous constructive engagement with the stakeholders such that decisions and measures (even mistaken ones) are perceived as objective and impartial. On the other hand where the electoral body rather views its role as limited to the dictation of edicts, regulations and censures, or worse as a taskmaster at the bidding of the government, it is laying the foundation for a flawed process.
Although the Independent National Electoral Commission of Nigeria (INEC) is principally a creation of the 1999 Constitution,[1] most of its functions and operational features are elaborated by legislation – the Electoral Act[2]. This seems to be a feature of many African countries and probably mirrors the concern that certain features of EMBs and the electoral process should not be susceptible to the vagaries of the executive or the legislature. INEC is a Commission comprising a Chairman who is the chief electoral commissioner and 12 others known as National Electoral Commissioners. The constitution further provides for a Resident Electoral Commissioner in each state of the federation including the Federal capital Abuja. Appointment into these offices is made by the President subject, in the case of the Chairman and the National Electoral commissioners, to consultation with the Council of State and confirmation by the Senate. A State Resident Commissioner is appointed by the President in his discretion but like the 13 National Commissioners, may only be removed by the president acting on an address supported by two-thirds majority of the Senate praying that he be so removed for inability to discharge the functions of his office by reason of infirmity of mind or body or any other misconduct[3] The President is required to appoint persons of unquestionable integrity into these offices. In addition a person who –
(a)is not qualified or who has been disqualified for election as a Member of the
House of Representatives; or
(b)within the preceding 10 years has been removed as a holder of a public office on
the ground of misconduct
(c)has served two terms as a member of any of the bodies established by the
Constitution in section 152 other than as ex-officio,
may not be appointed as Chairman or member of INEC.[4] However it is obviously permissible for an appointee to be a serving public officer who is then deemed to have resigned. Again it has been pointed out that since qualification for elections is a criterion under the Constitution being members of a political party or partisanship is not necessarily a disqualification but an essential requirement[5].
At the head of INEC’s administration is the secretary who is an appointee of the Commission. It is clear from the tenor of the constitutional provisions that the offices of Chairman, Electoral Commissioners (Resident and National) are full time appointments. Like the National Commissioners resident Electoral Commissioners are also appointed by the President.The relationship between the Commission and the State INEC offices that are supervised by the resident electoral commissioners is provided for in Section 7 of the Electoral Act in these terms –
“(1) There shall be established in each State of the Federation and Federal CapitalTerritory, an office of the Commission which shall perform such functions as may beassigned to it, from time to time, by the Commission.
(2) A person appointed to the office of a Resident Electoral Commissioner shall -
(a)be answerable to the Commission; and
(b)hold office for a period of five years”
It has been suggested that at the level of the states, it should be the responsibility of the Commission to appoint state representatives. This would ensure that professionalism and skills rather than political considerations come into play when appointing such persons. The size of membership of the Commission itself may be a disadvantage. It appears to be the largest in a sampling of African and Commonwealth countries and all commissioners are appointees of the President![6] If concern for geographical spread is in issue here, surely the existence of state offices or indeed commissioners appointed from the six geopolitical zones would meet this concern.
The composition of the South African EMB is determined by a process that is more diverse and participatory than the Nigerian Commission. The Act establishing the South African EMB stipulates a membership of five one of whom is required to be a judge. Although appointment is by the President the process is initiated through an intricate process which requires first that a screening panel comprising the President of the Constitutional Court and key oversight bodies shortlists[7] at least 8 candidates to a committee of the National Assembly comprising in proportion to their seats members of the parties represented in the Assembly. Thereafter, a recommendation supported by majority resolution of the National Assembly is required before the President appoints. The functions of INEC are outlined under the constitution. They include –
(a)the organization and supervision of elections to federal executive and legislative offices
(b)the registration and supervision of political parties
(c)the registration of voters as well as the maintenance and revision of existing registers
(d)the facilitation of annual auditing of the finances of political parties
(e)supervision and regulation of political campaigns
In addition to these powers, section 2 of the Electoral Act confers responsibility on the commission for voter and civic education as well as the conduct of any referendum required under any provision in the Constitution. The exercise of these powers in any given instance will often be in the context of a plurality of conflicting interests. It is of importance therefore that transparency and application of objective ascertainable criteria is employed in order to engender public trust and confidence. While the Electoral Act as well as guidelines and regulations made under the Act are important examples of such criteria, their implementation must also be transparently fair. Moreover, they require supplementation by agreed codes of conduct and consultation. This is no doubt an ideal, which is easier said than done. In many troubled or tottering democracies however, it is the subversion by the political contestants of these rules that often exacerbate conflict. In the case of Nigeria, for example, issues of party loyalty, god-fatherism, cultism and corruption have spurred reckless and ingenious devices to frustrate many electoral safeguards
Similarly too in Zimbabwe the crisis which culminated in the boycotting of the run-off Presidential elections by the opposition was greatly precipitated by state sponsored militia and so called war veterans who terrorized and intimidated the opposition. By the same token however, the cover of impunity under which these aberrations occurred, was encouraged by the weakness and in many cases connivance of the EMB. The façade of independence from the control of the ruling government is exposed by the process of appointing (and removing) key officials of such a commission and the manner of its funding.
Independence in the context of the Nigerian EMB, is not clearly enshrined in the Constitution which appears to have tackled this issue primarily with respect to the removal of the Chairman and the Commissioners by insulating that process from the caprice of the appointer. Others would argue that beneficiaries of the Presidents discretion are more likely to regard themselves as beholden to him, rather than the integrity of the process, and therefore have a greater tendency to become entrenched clogs. Rather curiously too, the autonomy of the Commission is expressly reserved only in regard to the appointment and discipline of its staff[8]! A funding process is provided in the Electoral Act, but in a manner which makes the Commission heavily dependent on the Executive. These features raise serious doubts about the ability of the Commission to engender confidence and act independently. In the following sections the paper attempts a comparative study of Nigeria and other jurisdictions on aspects of the electoral process that typically give rise to conflict; reviewing in the process the roles played by the EMB.[9]
Delimitation of Electoral Boundaries
The right to vote carries with it a right to equality of votes. This is usually expressed in terms of the slogan “one man one vote.” In a democratic election the value of one vote should as much as possible carry the same weight as that of another. Unlike some jurisdictions where demarcation of constituencies is mainly administrative the Nigerian electoral system requires that each single member federal constituency (360 in all) be contested on a FPTP basis[10]. The timing and nature of such an exercise therefore generates political heat. Where constituencies or electoral zones, are delimited in a way that erodes the representative character of the votes cast, the stage for conflict is set. In Nigeria the Constitution confers on INEC responsibility for delimitation of constituencies and senatorial districts. According to section 71 of the 1999 Constitution, INEC shall divide each state into three senatorial districts and the federation into three hundred and sixty federal constituencies. Section 72 prescribes the criteria for delimitation thus –
“No senatorial district or federal constituency shall fall within more than one state and the boundaries of each district or constituency shall be as contiguous as possible and be such that the number of inhabitants thereof is as nearly equal to the population quota as is reasonably practicable”
The population quota in the case of a Senatorial district means the number obtained by dividing the number of inhabitants of a state by the number of districts into which that state is divided (i.e. 3) while in relation to a Federal constituency it means the number obtained by dividing the number of inhabitants of Nigeria by the number of federal constituencies into which Nigeria is divided under section 71 (b) of the Constitution (i.e. 360)[11]. Although the constitution enables reviews by INEC of these delimitations at intervals of every ten years its provisions are vague and inadequate in the following respects –
(a)the constitutional measure of population quota relates to inhabitants many of who are ineligible to vote
(b)the constitution does not provide for a complaints mechanism for resolving disputed delimitations by INEC[12]
(c)it is not clear when INEC can deviate from the requirement of equality in population quota. Presumably it can deviate where following this requirement would place a constituency or district in more than one state
Opinion is divided whether the courts should have a role in the delimitation process. As this is an instance of the jurisdiction to review administrative action it would seem there is no bar to jurisdiction in Nigeria. In some countries, such as Tanzania, there is a specific bar against court involvement in the delimitation process. Other countries grant the court some function in the delimitation process, although in some instances, only in a very limited capacity. Judicial involvement in the United States is the most pronounced on account of the scope given to the equal protection clause in the Constitution[13]
In view of the resources and technical skills required it has been suggested that this function is best handled by a separate body such as a boundary commission which would set such boundaries precisely and unambiguously[14]. On the other hand it can be argued that this role should be performed by the EMB who is expected to administer elections within demarcated boundaries and whose performance in terms of their effectiveness will be evaluated. Currently INEC is in the process of reviewing state constituencies by vrtue of its constitutional powers. It has engaged the electorate in public hearings and consultations. These consultations reveal widespread dissatisfaction with the electoral boundaries used for the 2007 elections; however it is not clear what if any remedy is available to a person aggrieved by any particular delimitation. This is an obvious area where INEC can through institutional grievance mechanism boost public confidence and enhance the dispute resolution skills of its personnel.
Registration of Political Parties
The importance of political parties to the electoral process is demonstrated by its centrality to the right or freedom of association in democracy. In some countries like Nigeria the right to contest elections is dependent on sponsorship by a political party. Such is the pre-eminence of the party structure that the Supreme Court recently held that votes polled in an election are attributable not to the candidate but the political party which sponsored him[15]. The formation and registration of political parties raises questions of ideological as well as ethnic diversity. The criteria for registration which are contained exclusively in the Constitution, do not give much discretion to INEC. An attempt (under an earlier Electoral Act) by the Commission to expand the constitutional requirements was strongly rebuffed by the Supreme Court in INEC vs Musa[16] where the court held that INEC guidelines which among others required an association seeking registration to have operational offices in at least 24 states was unconstitutional. The Nigerian constitutional provisions no doubt reflect a deliberate intention to liberalize the registration of political parties. All through the course of Nigeria’s electoral history until 1999 the registration of parties had always been subject to the strict criteria established by the EMB, or some other arbitrary formula[17]. Discretion in this sense if judiciously exercised can strengthen the EMB. The Ghanaian constitution for example not only requires that before registration as a political party an organization must satisfy the Electoral Commission that it has a national character particularly, that it has branches in all the regions and is organized in at least two thirds of the district in each region[18]. Some countries however avoid the tensions that can potentially arise from the party registration process by establishing minimal criteria for registration[19]. Sometimes too the procedural requirements for gaining access to the ballot are the same as for the initial registration of parties. It is important in such cases that clear time schedules well ahead of elections are maintained.
The Nigerian constitution makes a careful distinction between political associations and political parties. A party is an association whose –
(a)Constitution as well as names and addresses of its principal officers have been registered by INEC
(b)membership is open to every citizen of Nigeria irrespective of his place of origin circumstance of birth, sex, religion or ethnic grouping
(c)name, symbol or logo does not contain any ethnic or religious connotation
(d)Headquarters is situated in Abuja.
The Constitutional provisions are supplemented by the Electoral Act which so far as the powers of registration are concerned does not go beyond administrative provisions. It is unlikely however that the framers of the 1999 Constitution foresaw that a period of nine years, could have given rise to X no parties 90% of which failed to win any seat in the state or federal legislative Assemblies[20]. While the constitutional provisions have significantly lessened frustrations arising from failure in the registration process, it would appear that more guidance is required as to when registration can be refused and also whether there shouldn’t be an institutional appeal mechanism before recourse to the court[21]. Many political parties perceive registration by INEC simply as a ticket to accessing funding under the Act.[22]
Although the constitution makes no explicit provision for the cancellation of a party’s registration[23], it is submitted that, the National Assembly could properly have provided for this in the Electoral Act. This contention is premised on Section 228 of the Constitution authorizing the National Assembly to provide inter alia for
“The conferment on the Commission of other powers as may appear to the National Assembly to be necessary or desirable for the purpose of enabling the Commission more effectively to ensure that political parties observe the provisions of (the Constitution).
A party may be de-registered for example if after registration it ceases to be in existence or the commission is satisfied that it is no longer functioning or where some fundamental condition of registration is breached.[24]
Registration of Voters
In the Nigerian case of Modibo v Haruna[25] the court observed that – “the most basic conclusive proof of an allegation of over voting is the voters register, the basis of which whether or not over voting has indeed taken place can be determined….any testimony of the shortage of or excess votes can only be ascertained when it is compared with the solid facts in the voters registration. In the instant case the respondent in establishing the allegation that votes cast exceeded the number of registered votes failed to produce the voters register, that left the allegation idle and unproved”