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PROJECT TOPIC ON ELECTORAL LAWS AND CREDIBLE ELECTIONS IN NIGERIA: AN APPRAISAL OF 2010 ELECTORAL ACT ON 2011 AND 2015 GENERAL ELECTIONS

ELECTORAL LAWS AND CREDIBLE ELECTIONS IN NIGERIA: AN APPRAISAL OF 2010 ELECTORAL ACT ON 2011 AND 2015 GENERAL ELECTIONS

ABSTRACT

Towards the end of 1990, international dynamics, pressures and persuasion combined to move Nigeria towards the embrace of a political system based on the global principles of democracy. The legal framework for this foundation was provided for by Decree No. 24 of May, 1999 which was a prelude to the promulgation of the Constitution of the Federal Republic of Nigeria. This inter- alia provides for the transition to civil rule through the conduct of elections by Independent Electoral Commission to the offices of President and the Vice-President, Governors and Deputy-Governors, Chairmen and Vice Chairmen, the National Assembly, the Houses of Assembly and the Local government councils. That attempt was initiated in 1999 and was again repeated in April 2003; April 2007; April 2011and in February 2015. This democratic position is further consolidated by the provisions of the said Constitution which provides in Section 1 (2) that the Federal Republic of Nigeria shall not be governed, nor shall any persons or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provisions of the Constitution. Furthermore, Chapter 2 of the same Constitution under section 14(2) (a) and (c) and section 15 (3) (d) strengthen the aforementioned democratic position as it provides that sovereignty belongs to the people of Nigeria from whom government through the Constitution derives all its powers and authority and the participation by the people in their government shall be ensured in accordance with the provisions of the Constitution. Stemming from the constitution the Electoral Act was promulgated. The 2006 Electoral Act provided the platform for the rules for the conduct of the 2007 election in Nigeria. It did not provide the free and fair election as desired. This led to several amendments leading to the promulgation of the 2010 Electoral Act which provided the ground rules for the conduct of the 2011 and 2015 General Elections in Nigeria. The thesis appraises the 2010 Electoral Act on the 2011 and 2015 General Elections. It focuses on issues relating to the Elections management by INEC, electoral fraud/ offences ad provided in the Act and the desirability to enfranchise Nigerian Diaspora population. The thesis submits that the Electoral Act 2010 (As Amended) did not provide the desired platform for free, fair and credible elections in 2011 and 2015 General Elections in Nigeria. Even as great improvements had been recorded compared to previous Elections. The thesis however submits that amendments to some provisions of both the 1999 Constitution of the Federal Republic of Nigeria and the Electoral Act 2010 (as amended), are necessary to strengthen the Electoral system to give Nigerians free, fair and credible election in 2019 and beyond.

CHAPTER ONE

GENERAL INTRODUCTION

 

1.1         Background to the Study

Towards the end of 1990, international dynamics, pressures and persuasions combined to push Nigeria towards the embrace of a political system that is based on the global principles of democracy. Nigeria like other African countries is a signatory to International Conventions on Democracy and Elections in the 1990s1. The decade was significant not only to countries of West Africa (Nigeria inclusive), but the entire continent of Africa in general because it was during this period that many African countries returned to democratic governance. From the 1990s, West Africa paraded an array of emerging democracies such that at the close of that decade, Benin, Ghana, Liberia, Mali, Nigeria, Senegal, and Sierra Leone among other African countries were included in the list of states with ―minimal democracies‖2

Nigeria returned to civil rule on May 29, 1999. The 1999 elections marked the beginning of a transition from military to civil rule. The country held three elections, including the April 2007 elections that brought President Umaru Yar‘Adua to power following the victory of his party, the People‘s Democratic Party (PDP). Political transition advanced from 1999 to the next phase with conduct of the 2003 elections. In the lead-up to the 2007 elections, Nigerians were considerably hopeful that the elections would be free and fair. But there were concerns in many circles about the poor state of readiness of the Independent National Electoral Commission (INEC) and law enforcement agencies. The outcome of the April 2007 polls further betrayed peoples‘ confidence in the electoral system3 by a massive electoral fraud financed through money politics.

Firstly there has been concerns with regards to the management of the 2011 and 2015 General Elections by the Independent National Election Commission (INEC) Despite amendments both in the Constitution of the federal Republic of Nigeria 1999(CFRN‘99) and the Electoral Act 2010 (as amended) to strengthen the capacity of INEC to deliver free, fair and credible elections, yet the INEC is constrained by certain structural and legal issues that require further amendments as discussed in this thesis.

There has been considerable debate as to whether the existing legal framework for the prosecution of electoral offenders as encapsulated in the Electoral Act, 2010(as amended) is appropriate and adequate for the arrest, investigation and prosecution of electoral offenders. There has also been considerable debate as to the capacity and willingness of the Independent National Electoral Commission to prosecute electoral offenders in a professional and ethical manner. Debates are also ongoing as to the willingness of some elements within the political parties to act within the compass of the Constitution of the Federal Republic of Nigeria, 1999(as amended) and the Electoral Act, 2010 (as amended) for winning elections and abandon fraudulent means and ways of doing the same.

These debates are hinged on the fact that the refusal, inability or incapacity of the Independent National Electoral Commission to prosecute electoral offenders encourages electoral impunity, voter apathy and the gradual disengagement of the Nigerian people from the electoral process as some of them believe that electoral fraud and malpractices renders their votes meaningless and even if they vote, their votes may not count. The debates are also hinged on the fact that if nobody is prosecuted successfully, it may then be more profitable to engage in electoral fraud and malpractices.

By section 150(1) & (2) of the Electoral Act, 2010(as amended) an offence committed under the Act shall be triable in a Magistrate Court or High Court of the State in which the offence is committed, or the Federal Capital Territory, Abuja. A prosecution under the Act shall be undertaken by Legal Officers of the Commission or any legal practitioner appointed by it.

However, the arrest and prosecution of electoral offenders have been fraught with a lot of challenges. The Police with the responsibility for the arrest, investigation and giving evidence in Court on electoral matters are sometimes posted out of their State Commands and moved to contiguous states on Election Day. This is done to ensure their neutrality on Election Day. Unfortunately, some of the officers on duty on Election Day are posted back to their State Commands after elections making documentation of electoral offences difficult and also making it difficult for credible evidence to be gathered and serious prosecution to be carried out.

Most electoral offenders are also not prosecuted because the Independent National Electoral Commission has Tess than 100 Legal Officers serving the Headquarters and the 36 State Offices including the Federal Capital Territory, Abuja and do not have the capacity and resources to prosecute offences committed in 119, 973 polling units, 8, 809 wards, 360 Federal Constituencies, 109 Senatorial Districts and 774 Local Governments in Nigeria. It is more difficult to see how legal officers of the Commission will prosecute about 870,000 cases of multiple registrations detected by the Independent National Electoral Commission during the 2011 voters registration exercise. Because offenders are hardly prosecuted and some get away with impunity on account of their political affiliation, impunity is recycled, people disengage from the electoral process on account of electoral fraud and violence, and the credibility of the electoral process is called into question.

 

The effect of this state of affairs is that there is shoddy investigation and prosecution of electoral offenders. investigation and prosecution of electoral offenders. A research conducted by Human Rights Monitor on the Arrest and Prosecution of Electoral Offenders from January to March 2012 in 18 states of the Federation tracked a total of 2.94 cases, and out of this number24 cases had been concluded and sentences passed, 78 of the cases were struck out for lack of diligent prosecution, 181 of the cases are still ongoing. 6 of the suspects were discharged and acquitted and 5 suspects have not been charged to court.

Unfortunately, attempts to amend the Electoral Act and create an Electoral Offences Commission through the introduction of an Electoral Offences Commission Bill have not materialized. This is curious because the Independent National Electoral Commission has stated clearly that it does not have the capacity and resources to prosecute electoral offences.

It is therefore important to find out whether persons with vested interest in the perpetration and perpetuation of electoral fraud and malpractices are blocking the introduction and passage of a separate Electoral Offences Commission with powers to arrest, investigate, and prosecute electoral offenders. It is also important to project whether the passage of the Law will curb electoral fraud and raise the integrity of the electoral process.

Thirdly, the Diaspora population in various countries contribute to the GDP in Nigeria yet the Electoral Act provision seems to disenfranchise them. They need to bring them into the main stream of the electoral process is necessary.

Politics has been seriously monetized with political of1ices made so comfortable for politicians in a manner that has made the contest into political offices a do-or-die – affair4. It was against this background that the 2011 and 2015 General Elections were conducted based on some amendments to the 1999 Constitution of the Federal Republic of Nigeria thus, paving way to changes or reforms to the electoral system.

The constitution of the Federal republic of Nigeria 1999 (as amended) is the supreme legal instrument as it both regulates Nigeria‘s political arrangements and gives fundamental human rights legal force within the country.

It is within this framework that rights associated with governance in Nigeria can he founded on part I of the Constitution. Specifically, the Constitution begins:

This Constitution is supreme and its provisions shall have binding force on alt authorities and persons throughout the Federal Republic of Nigeria. The federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the Government of Nigeria or any part thereof, except in accordance with the provision of this Constitution.5

The constitution makes it clear that, Sovereignty belongs to the people of Nigeria from whom government through the Constitution derives all its powers and authority. Here, the spirit of the law implies the integral role that the Nigerian people play in governing. The Constitution goes on to list the fundamental rights and freedoms of Nigerian citizens, each of which play a role in assuring equitable access to participation in government. Freedom of thought, conscience, religion6 and expression, including the ―freedom to hold opinions and receive and impart ideas and urination without interference‖7 are each expressly guaranteed. Without these rights, access to public offices could and easily be impeded by discrimination based upon religious beliefs or political ideology.

It is in Section 40, that the key freedoms of assembly and association are granted to Nigerians. The Constitution provides for political associations where it states that, the Nigeria citizen may form or belong to any political party, trade union or other association for the protection of his interest8

The implication that every Nigerian citizen has the right to freely associate for political purposes infers the citizens‘ right to participate in government through elections to public office, as parties are the only vehicles for seeking political office under the constitution. The Constitution further establishes the Independent National Electoral Commission (INEC)9 as the institution to assist in the realization of the promise of democracy through the ballot box. Paragraph 15(a) of the Third Schedule to the Constitution vests INEC with powers to;

Organize, undertake and supervise all elections to the offices of the President and Vice-President the Governor and Deputy-Governor of a state, and to the membership of the Senate, the House of Representatives and the House of Assembly of each State of the Federation.

The right to participate in government is also guaranteed, through the transformation of the African Charter on Human and People‘s Rights as domesticated into Nigerian law. The African Charter (Ratification and Enforcement Act) expressly grants a right to participate in government10.

Nigeria is a party to various international human rights instruments. These instruments complement domestic laws. The right to participate in government and to fair trial is also embodied in these international instruments; among them is Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR), Constitutive Act of the African Union (2009), African Charter on Peoples‘ Rights, African Charter on Democracy, Elections and Governance, ECOWAS Protocol on Democracy and Good Governance, and the Protocol to the African Charter on the Rights of Women11.

Thus it is against the aforementioned issues and background i.e the 1999 Constitution and amendment thereof, the Electoral Act 2010 (as amended), International Legal instruments, Conventions and Protocols that the 2011 and 2015 General Elections were conducted. This is the focus of this thesis as discussed in subsequent Chapters.

ELECTORAL LAWS AND CREDIBLE ELECTIONS IN NIGERIA: AN APPRAISAL OF 2010 ELECTORAL ACT ON 2011 AND 2015 GENERAL ELECTIONS

1.2         Statement of Research Problem

Nigeria went to the polls in 2011 and 2015 with the Electoral Act (2010) as the legal and institutional platform. After the two Elections, however, it became obvious that the much desired free, fair and credible elections were not fully achieved going by the number of problems that dotted the electoral process. Firstly, despite Constitutional amendments to give INEC financial autonomy structural problems continue to confront it thereby hampering is ability to conduct free, free and credible elections. Thus it is over stressed due to multi task that both the Constitution and the Electoral Act have assigned to it.

Interlocutory appeal shall not operate as a stay of proceedings e.t.c. However, the most obvious lapses were in the area of Electoral fraud.

Secondly, the issue of electoral fraud and the lack of credibility of the electoral process have been with the Nigerian people for some time. It has more or less become a feature of Nigerian elections. It is rooted in the ―do or die‖ politics practiced by some Nigerian politicians and political parties. Unfortunately, as a large number of those that engage in electoral fraud and irregularities get away with it, it becomes the norm rather than the exception.

This sad history of electoral fraud or rigging has serious implications for our democratic future because the phenomenon is growing rather than declining. As the elections go by the principal forms of rigging and fraud are increasing and are being perfected in successive elections since 1964, 1965, 1979, 1999, and 2003. The result is that elections have become turning points in which the outcome has been the subversion of the democratic process rather than its consolidation. Not surprisingly, major political conflicts have emerged around rigged elections.

Despite the creation of these offences by the law and the sanctions provided for them, few offenders are apprehended and prosecuted by the various security agencies in Nigeria. The consequence is that the offences remain in the statute books as mere offences while candidates engage in competitive rigging. Consequently, the candidate who out-rigs the other is declared the winner while the opponent is forced to proceed to the election tribunal as the underdog to struggle with the person with the power of incumbency.

Those who cannot stand the corruption and violence that attend the electoral process disengage from the process for fear of being maimed and killed by political thugs. This results in voter apathy and loss of legitimacy by the electoral process. The regime brought to power by fraudulent means faces the crisis of legitimacy, as it finds it difficult to command the confidence of the people and that of the international community as a result of its illegitimacy. The moment this happens, there is also the possibility that the international community may impose sanctions on the regime. There may be street protests and civil disobedience that may bring political and economic activities to a standstill. This may also lead to the ascendance of antidemocratic forces in the country.

Although the law prescribes the processes and procedures for the legitimacy of elections, the same law also recognises that things may not always go as prescribed. In which case, candidates and political parties that participated in an election nay question the legitimacy and legality of such elections before the election tribunals set up for that purpose. The law also recognises the fact that some individuals and groups may attempt to subvert the electoral process and attempt to come to power through illegal means. It is on the basis of this that the law has created electoral offences and prescribed punishment for those that breach the provisions of the law.

Thirdly, is the issue of disenfranchising the Nigerian Diaspora. Both the Constitutional and the Electorate Act did not provide for their voting rights. Despite their huge financial contribution to the GDP of Nigeria.

These three key issues and others has been closely discussed in this thesis with the view to addressing them in the concluding Chapter of this thesis.

1.3         Objective of the Research

Modern democratic culture and practices in governance is relatively new in Nigeria‘s history12. Even though elections have been held in Nigeria from 1958 to date yet the culture of free and fair election is yet to be attained. Elections were hitherto characterized by fraud, partisanship and even violence13. The need to have credible electoral law and process becomes not only imperative but necessary. The specific objectives of this work are;

  1. To examine whether INEC as presently constituted legally and structurally have been able to manage the 2011 and 2015 General Elections in Nigeria.
  2. To appraise the Electoral Act, 2010 (as amended) in order to determine the adequacy or otherwise of sanctions for electoral offences and fraud as provided in the Electoral Act 2010 (as amended) during the 2011 and 2015 General Elections.
  3. To examine the electoral Act 2010 with regards to Nigerian Diaspora Disenfranchisement with a view to enfranchising them through constitutional and electoral amendments.

Recommended: ELECTORAL LAWS AND CREDIBLE ELECTIONS IN NIGERIA: AN APPRAISAL OF 2010 ELECTORAL ACT ON 2011 AND 2015 GENERAL ELECTIONS

1.4         Justification of the Study

The justification for this study is premised on three grounds:

Firstly, the need to examine the desirability to further strengthen INCE by further amendments to Electoral Act in order to enhance its capacity, efficiency and efficacy to deliver free, fair and credible elections.

Secondly; the provisions of the electoral Act 2010 (as amended) on electoral fraud are not effective in dealing with Electoral fraud in the 2011 and 2015 General Election.

The need to identify areas to improve the efficacy of the law with responds to reducing Electoral fraud provides justification for this work.

Thirdly, the need to consider enfranchising the Nigerian Diaspora in Elections (they did not participate in 2011 and 2015 General Elections) considering their contribution to the Gross Domestic product of Nigeria (GDP).

1.5        Research Methodology

This research would primarily be doctrinal. Consequently, relevant legal materials including case laws, legal papers and authorities have been consulted and analysed with a view to appraising the Act as it impacted on the 2011 and 2015 general elections. The study therefore utilizes secondary sources of data and content analysis of relevant laws. The Constitution of Federal Republic of Nigeria 1999, the Electoral Act 2010 (as amended), published books, scholarly journal articles, newspapers, articles, conferences and institutional papers as well as materials downloaded from the internet have been accessed and appraised.

1.6         Scope of the Research

The scope of this work is focused mainly on the provision of the electoral Act 2010 (as amended), as it relates to the conduct of free, fair and credible elections devoid of electoral fraud by a truly independent body. This is as it affects the conduct of the2011 and 2015 General elections in Nigeria. The scope has been limited to the Act and the General Elections of 2011 and 2015.

It did not cover election to local councils even though provided for in the Electoral Act 2010(as amended). It is also limited to the legal aspects of the elections as provided for in the CFRN 1999 and the Act. Thus historical or political issues though have bearing on the discourse on democracy and election would not be in direct focus.

ELECTORAL LAWS AND CREDIBLE ELECTIONS IN NIGERIA: AN APPRAISAL OF 2010 ELECTORAL ACT ON 2011 AND 2015 GENERAL ELECTIONS

1.7         Literature Review

This thesis reviewed several works that bear on the subject of this research. i.e 2010 Electoral Act as it impacts on 2011 and 2015 General Election. These include books, journals, law conference proceedings, Technical Working Group (TWG), technical reports, special election reports on 2011 and 2015 elections by stakeholder‘s i.e. Civil Society organizations, High Commissions and embassies in Nigeria, national and international observer‘s, security agencies, the media (print and social), the World Wide Web (the internet), law reports i.e. land mark cases, Institutes and Centres, on views and opinions of scholars and experts on this field. Some have been discussed hereunder showing their relevance and contribution to the literature on this topic however identifying their lacuna in this area which this present work seeks to address.

  1. Understanding the 2011 General Elections in Nigeria: The Beginning Ofa New Era14

This work is in two volumes: the first volume is a discourse on elections in Nigeria as from 1998 —2007 and the second volume was specifically on the study of the 2011 General Elections in Nigeria. These works made very robust contributions to the literature of elections in Nigeria. Coming from a background of academic and an electoral Commissioner, Ujo analyzed various political and legal issues relating to election in his works under review. The role of Independent National Electoral Commission, as an umpire in the election is analyzed. Despite the great deal of work and contribution made by these two volumes with combined pages of 1,000 consisting of 24 Chapters, yet there exist some Lacunae. Thus, even though his work was based.

On the 1999 Constitution of Nigeria, a lot of amendments have taken place which the work not capture nor anticipated. Again the 2002 Electoral Act was the basis of his 1998/99 work whereas the current Act is 20l0(as amended), which amended a lot of provisions that were in the 2002 Act. Even in terms of political parties, in Ujos work only 9 parties were registered whereas in 2011 General Election, fifty three (53) political parties were in the contest for various offices even though 63 political parties were registered by INEC. This clearly presented several administrative, legal and logical problems which Ujo could not have anticipated or addressed in his 1999‘s work. Ujo attempted to address these lacunae in his subsequent works15, this attempt through laudable still left a lot of desirable explanations and inputs, for instance, firstly, the works did not have the legal instruments for election that is Electoral law in focus. There was no attempt to fully appraise the cases that came up following the 2011 elections. Thirdly, there were some obvious inaccuracies and/or omissions. For instance, the Electoral Act 2010 as amended provides that the amount for presidential campaign limit is as follows:

  • (I) Election expenses shall not exceed the sum stipulated in subsection (2) -(7) of this section.
  • The maximum election expenses to be incurred by a candidate at presidential election shall be one billion naira (N 1, 000,000,000).16

However, Ujo puts the limit as ten billion (N10, 000,000,000)17 .This  present  work  examines  these  deficiencies  by  addressing  issues  in  their present Constitutional and legal perspectives as they relate to the 2011 and 2015 General Elections in Nigeria.

  1. The Role of Nigeria Police in Elections18

This work is in nine chapters. It discusses generally the concept of democracy as it relates to elections in Nigeria. It further captures the relevance of party politics in Nigeria using the 1999 Constitution as its platform. It also looked at electoral offences against the background of the 2002 Electoral Act. Even though his work touches salient areas relating to this work, Okoigun‘s work on elections in Nigeria did not advert itself to the following areas, namely, that the work does not have a theoretical frame work upon which it is premised.

Again his work, having looked at election in Nigeria dating from 1959 to 2003 left out some important elections having indirect hearing on the present work that is 2007 general elections and beyond. These defects inform the need for further work to fill these gaps thus making the present work timely and relevant.

  1. Democracy And Nationi4l Security Issues: Challenges and Prospects19 Mbachu20 examines the theoretical perspective to democracy in Nigeria. The author, an academician supported his work by academic authorities by looking at various dimensions to politics and democracy in Nigeria against the background of national security thus underscoring the need for security as a sine qua non, to democracy and the growth of democratic cultures, elections, and party politics. However, the work did not consider the legal perspective to democracy and election in that the constitutional basis of democracy and election were never considered. It did not also look at election as a major theme in the work. This research is-of the opinion that these are major lacunae which the present Work addresses.
  1. National Human Right Commission: An Independent Review Of Evidence Of Gross Violations Of The Right To Participate In Government To Public Service And To Fair Trial Through The Election Petition Process In Nigeria 2007 And 201121.

The National Human Rights Commission‘s work22 is an independent review of evidence of gross violations of the rights to participate in government, to public service, and to fair trial through the election petition process in Nigeria 2007 and2011. This work is a Report undertaken by the Technical Working Group (TWG) of the National Human Right Commission. This work is a landmark contribution to the literature on elections in Nigeria particularly the 2007 and 2011 elections.

Remarkable as this Technical Committee Review (TCR) work is, there are a number of gaps that need to be addressed in respect of the 2011 election which the report did not address. Firstly, the report did not consider substantially the 2011 election cases. This is because of the 84 cases reviewed by the reports, only 4 related to 2011 election23. There were over 139 electoral petition cases in the 2011 General Election for the president and National Assembly elections alone. The review by TCR report on only 4 cases alone is grossly underrating the quantum of cases that went to the tribunal under the 2011 General Election. Some of these cases are landmark cases on election in Nigeria. The need therefore to properly review these cases as this thesis seek to becomes timely.

  1. Nigeria: Post-Election Violence Killed 80024

This contribution by Seylou Diallo focuses on the deadly election related and communal violence in northern Nigeria following the April 2011 presidential voting where more than 800 people were killed in three days of rioting in three Northern States. This contribution gives a detailed account of the violence that occurred& in the 12 states of Northern Nigeria. It also traced the history of election violence in Nigeria from 1960 to date. The writer noted that even though there was improved election in Nigeria in 2011 elections but this improvement were dimmed by the circle of violence that followed it. He supported his contribution with pictorial, evidence of violence. His 9-pagecontribution on violence with regards to 2011 election was a good contribution to the literature on election violence and failure of the Act. However, this contribution is limited to the violence that occurred in northern Nigeria only despite the fact that there was evidence of pockets of violence in other parts of Nigeria prior to during and after the elections.

Furthermore, his contribution was limited only to the 2011 general elections and there was no recommendation as to ways of curbing election violence in future: this gap needs be filled.

  1. Lessons from Nigeria 2011 Elections25

This paper was a brief to the European Union on selected countries including Nigeria‘s election of 2011. It was an overview of the April 2011 elections where it looked at the steps taken by INEC and Government towards ensuring credible elections in Nigeria. It commended reforms on electoral, constitutional and the economy, which affected the 2015 polls and truly brought a fair and credible election in Nigeria. It further discussed the proposals of UWAIS electoral reform committee which it advised should be widely published and reform effort enhanced to make the system more inclusive. It noted further that the freedom of Information Act which has been signed into law and guarantees the right of access of individuals and groups to information held by public institution and the new sovereign Wealth Fund Scheme were important steps forward Constitutional reform should be done with a more holistic less piecemeal approach, with the full involvement of the Nigerian people, who have long been demanding it.

The paper made far reaching recommendations towards moving both the electoral system in the country in particular and governance in Nigeria better, some of these include:

  1. Releasing funds to INEC so it can begin early preparation for the 2015 elections
  2. Directing 1NEC to compile, maintain and update the national register of voters on a continual basis, in accordance with Section 9 (1) of the 2010 Nigerian Electoral Act;
  3. Using the Uwais committee‘s extensive recommendations as the basis for a broad debate on constitutional reform, including a review of the simple-plurality electoral system for legislative election
  4. Responding to the genuine grievances to those living in parts of the North that arc considerably poorer than some wealthier Southern states and prioritizing and improving their dire living conditions, while not overlooking states with similar problems in the south.
  5. Disclosing the result of the investigation into post-electoral violence, including the identities of those responsible and the causes;
  6. Prosecuting those responsible for electoral malpractice or post-electoral violence regardless of their status;
  • Putting more effective procedures in place for challenging possible massive rigging, as opposed to individual instances of abuse at polling stations.

The above report/briefing was essentially on the 2011 elections and projected at better process for the 2015 elections. However, the report did not discuss the inadequacies of the legal frame work for the 2011-2015 general elections, which is the focus of this thesis.

  1. Nigeria’s 2011 Election Most Credible Since 199926

This was a paper by the United State Assistant Secretary for African Affairs on the 2011 elections presented to the centre for strategic and International Studies in Washington DC. The paper appraised Nigeria‘s 2011 elections and challenges confronting the nation. The report stated that:

Nigeria has conducted its most successful and credible elections since its return to multiparty democracy in 1999. Despite obvious imperfections, these elections have given the country a solid foundation for strengthening its democratic institutions in the years ahead.27

Noting that as a witness to that historic occasion. He could vouch for the enthusiasm that Nigerians demonstrated towards the elections and their democratic rights. He also acknowledges what he called a strong commitment on the part of the government to improve the electoral process months before the election and the adequate funding provided.

Carson noted that the elections were clearly another step forward in Nigeria‘s continuing democratization process, but added that more still needed to be done to improve Nigeria‘s electoral procedures and more importantly, to strengthen the country‘s democratic institutions and governance. The report coming from one of the highest level of US engagement with Nigeria provides an insight into the conduct of the 2011 general elections where it rated the election successful and credible since 1999, (his assertion may he factual when compared to previous election from 1999.

However, the report did not look at the violence which almost marred the 2011 elections. Furthermore, the report did not look forward to proffer far reaching recommendations on the just concluded 2015 elections and beyond. This is a major lacuna in this report considering the high level of this report ie: from the United States office of the secretary for African Affairs. This thesis will look at these inadequacies.

  1. Review Of  Election  Security  during  the  2011  General  Election  in  Nigeria:

Conference Proceeding28.

This is a monograph of conference proceedings on the 2011 General Elections. Which consist of three paper presentation on the issue of election security in Nigeria. They are:

  • 2011 General Election Review: Experience sharing, Lessons Learnt and the way forward. The Nigeria Police perspective.
  • Civil society Assessment of the 2011 General Elections.
  • Post –Election Violence in Nigeria: Emerging Trend and Lessons.

This monograph extensively discussed the issues of election security as evidence from pages 10-31. However, the report was restricted to only security issues even through post-election violence were discussed in the presentation.

The report did not project ways of stemming of electoral violence in future elections: it did not again look at the prosecuting of electoral related violence, which are traceable to security breaches. This is a major lapse on this proceeding which would be addressed by this thesis.

  1. Social Media and the 2011 Elections In Nigeria29

The study 30analyses the role of social media in the 2011 elections highlighting the ways in which key elections stake holder‘s utilized social media during the election.

It also analyses the treatment of social media in the Nigeria‘s electoral legal frame work particularly the Electoral Act 2010 (as amended).

This is a study by policy and Legal Centre (PLAC), which observes that the 2011 General Elections witness a remarkable use of social media as a political communication tool in Nigeria. Three major issues underlined the tremendous use of social media tools during the 2011 elections. Firstly the use of social media in Nigeria‘s 2011 elections reflects a global trend towards ―internet elections‖ or ―e-electioneering‖. Around the world, rapidly expanding access to internet , increased availability of internet –ready smart phones and other communication devices, as well as the evolution of web based new media-personal websites, social networking sites, blogs, e-newspapers, have redefined methods of political communication, leading to a significant shift towards the use of social media in the electoral process. Previously, network television and newspaper dominated coverage of electioneering as the primary sites of election related information. But today, the social media has become a major election information sharing platform globally. Because of its ease of use speed and reach, social media is revolutionizing efficiency of election administration coverage and reporting.

The second issue that underlined the use of social media in Nigeria‘s 2011 election according to this study is the tendency of some Nigerian Politicians to tap into the opportunities offered by the social media for on-line campaigning. During the 2011 General Elections, many politicians particularly the presidential aspirants used social media tools to connect with the voters and constituent. Facebook and twitter appear to be the most widely used social media platforms by the politicians. For example, in December 2010, it was estimated that the president Goodluck Jonathan follows close to 300,000 on his facebook page. Other presidential aspirants like Dele Momodu, Ibrahim Shekarau, Nuhu Ribadu, Atiku Abubakar and Ibrahim Babangida all had Twitter and other social media accounts. Political parties like Peoples Democratic Party (PDP), Action Congress of Nigeria (ACN) and Congress for Progressive Change (CPC) also maintained Facebook accounts. Social media offered politicians and their parties the opportunity to broadcast messages and recruit huge number of volunteers to support their campaign.

The third issue that underscored the use of social media in Nigeria‘s 2011 elections is the tendency of Nigerian civil society and the electorate to take up social media as a tool for improving the efficiency of election observation. Prior to the conduct of the 2011 elections, ‗elections in Nigeria have been largely flawed by vote rigging and other electoral malpractices. The 2003 and 2007 elections were particularly marked by dissatisfaction by candidates, voters and observers. The elections were trailed by complaint of irregularities such as disenfranchisement of prospective voters, snatching of ballot box from election officials and stuffing of the boxes with invalid ballot papers, as well as allegations of collusion between election officials and politicians to alter election result and subvert popular mandate. The flaws that characterized the conduct of the 2007 elections severely dented the integrity of elections in Nigeria‘s and triggered demands for freer, fairer and more transparent elections according to the study.

To address the flaws that marred previous elections in Nigeria, various organizations institutions and individuals set up social media platforms that enabled the citizens to oversee the electoral process and report electoral malpractice to authorities through their mobile phones, computer and other electronic devices.

Through social media platforms, overwhelming number of videos, photos tweets and comments were shared. ―The widespread use of these real-time media severely limited electoral malpractices because we found that people were aware that they were on camera and this made them operate at their best behavior‖31

Attahiru Jega, Chairman of the Independent National Electoral Commission (INEC), also agrees that the use of social media during the 2011 elections ―enhanced transparency in the electoral process and made INEC more accountable to the public in the conduct of‘ elections‖ according to, this study.

The 2011 general elections offer a unique opportunity to examine the use of social media in elections, especially the usefulness and applicability of social media in the electoral environment. Although it seems obvious that social media contribute in no small measure to the success of the 2011 elections, it is pertinent to understand specifically how particular stakeholders in the 2011 elections, like INEC politicians/political parties, the electorate and CSOs, used the social media during elections.

This 21-page work by PLAC thoroughly examined and discussed the role of‘ social media in the 2011 elections. However the study is commendable even though it left some evident lapses i.e. it did not discuss social media role in triggering electoral violence through false reporting of election results; secondly it did not discuss adequacies or otherwise of the Electoral Act 2010 (as amended) in not capturing the social media as a tool for enhancing or attaining credible elections; thirdly this study is restricted to the 2011 General Elections only while the thrust of this thesis includes the 2015 General Elections. This work will address the obvious lapses of this study as pointed immediately above.

  1. The State Of Electoral Offences And The Challenges Of The Judicial process In Nigeria32

This learned author in his contribution on the topic of‘ election which is mainly on 2011 General Elections in Nasarawa State Law Journal titled “The State of Electoral Offences and the Challenges of the Judicial Process in Nigeria”, x-rayed the present position of the electoral offences visa-o-visa the judicial process in Nigeria. In his fifteen (15) page contribution, the learned author attempted an examination of‘ the fifteen (15) electoral offences contained in the Electoral Act with their various penalties, which he noted were mainly prison terms and monetary. He juxtaposed this position with the challenges of judicial process which he identified as:

  1. The burden of proof of criminal allegation in election petitions.
  2. Non-compliance with the electoral Act.
  3. The doctrine of substantial compliance.

He concluded that:

‗‗Election offences should be made unattractive to politicians so that elections with integrity will be enthroned to our nascent democracy‖33 Robust as this contribution seems to be, it only applies to the 2010 General elections and did not take cognizance the two amendments of electoral Act 2011, Thus the realities in the 2015 General elections which the author neither anticipated nor discussed were confronted by the problems he raised in his contribution to the journal. This shows that the combined effect of the amendment to electoral Act 2011 and the amendment of the INEC manual shows that here is a gap in his work i.e the elections of 2015 when this work intends to fill.

  1. Impact Of Judicial Activism On Electoral Laws In Nigeria

This is a voluminous work of 298 pages consisting six researched chapters as follows:

Chapter One; Introduction, definitional analysis & history of election: Chapter two; Legal Frame work for elections & electioneering process in Nigeria; Chapter Three; electoral conflicts & legal resolutions in Nigeria, election petition; a sui generis: Chapter four : impact of judicial activism and electoral democracy: Chapter Five; Notable leading judgments of his lordship. Honorable Justice Dahiru Musdapher (CJN) on election matters: Chapter Six; Annotatiti of electoral Act, 2010 (as amended in 2011).

This work attempted a very extensive historical, legal and judicial look at Nigeria‘s electoral system taking an extensive historical overview of Nigeria‘s history of elections and a closer look at the legal framework of the elections and mechanism for resolving electoral conflicts. Its chapter on the impact f judicial activism on the electoral laws and Nigerian democracy brings to fore the -need for drastic changes in the electoral system. The notable leading judgment of Honorable Justice Dahiru Musdapher shows the versed and richness of Nigeria‘s electoral cases and the quest by politicians to reach the apex court on any court ruling that does not favor them. The annotation of the Electoral Act 2010 (as amended) in the work makes the work a rich compendium of election matters in Nigeria. However, this work is limited to the 2011 elections only, in terms of the legal framework and the cases cited. The work did not, for instance, capture the latest amendment to the 2010 Electoral Act i.e. the third amendment signed in 2015 that ushered in the 2015 General Elections. Also the scope of the work excludes some fundamental aspects of the electoral process as follows:

  1. Violence related to the 2011 elections;
  2. Exclusion of some electorate in the electoral processes i.e. Diaspora population, internally displaced Persons and some classes of disabled persons;
  3. The need to unbundle 1NEC with respect to some electoral processes e.g. prosecution of electoral offenders, registration and monitoring of political parties;
  4. The attached Electoral Act 2010 did not contain the third amendment to the Act;
  5. The cases mentioned as leading judgment of his lordship contain only relating to only 1999-2010 cases no cases relating to the 2011 General Elections was cited.
  1. Election Rigging and the Problem of Electoral Act in Nigeria34.

This is a journal contribution by a political scientist in the Afro Asian Journal of

the Social Sciences. The seventeen-page contribution is on election rigging and the problems of Electoral Act in Nigeria. The paper grappled with the election rigging and the flaws inherent in Nigeria Electoral Act. Making use of secondary data as the methodology of his paper, the paper examined the history- of electoral process in Nigeria from the era of the first republic to the 2007 Fourth Republic. It was observed that election rigging/corruption was not a new phenomenon in the Nigeria body politic. Apart from the 2003 Presidential Election, election rigging in Nigeria is a recurring decimal and it was as old as the polity itself he asserted.

He structures the paper into five parts. In part one he gives an introduction, in part two he deals with conceptual clarification of election, in part three he looks: at the conceptual frame work of the study, in part four he examines the flaws of Nigerian Electoral Act, while he makes his conclusions and recommendations in part five.

This contributor is writing from an entirely political science background consequently his discussions were devoid of legal frame work on elections. His discussion the electoral act is principally on the Electoral Act of 2006. He recommended its amendment noting that the Electoral Act of 2011 as been signed into law. He neither discussed the content nor highlighted any observable flaws to see whether the flaws he discussed in page ten of his paper has been taken care of‘ by the 2010 Electoral Act amendments. Furthermore, his work only dwells on election rigging. It did not discuss other pertinent issues relating to elections e.g. electoral violence electoral disputes etc. This work thus is restricted only to the election prior to 2011.

However, this present work looks at the 2011 and 2015 elections using the Electoral Act 2010 (as amended) as the legal framework.

  1. Elections And Letting The Votes Count In Nigeria: Implications For Democratic Stability In An Emerging Third World Society35.

This work is a contribution to the African Journal of Social Sciences by three authors36. The paper examines the primacy of electoral voters in an emerging democracy and its implications of democratic consolidation and good governance in Nigeria. It takes on the important question of understanding the validity Nigeria, with implications for democracy in Africa. This paper noted that a credible election is yet to be enthroned in the process of choosing election officials in Nigeria and blames this electoral malfeasance on the adoption of faulty, atavistic and moribund balloting system by the electoral umpire (independent national electoral commission INEC). Drawing from the 2007 and 2011 elections, the paper submitted that the electorate votes never count for who emerges as a winner and accounts for the high level of bad governance and democratic fragility in Nigeria. Factors responsible for this were identified by the paper and suggest as a panacea that, the state should invest in politics and also digitize its electoral process.

Rich and robust as this contribution is, it is essentially from apolitical science perspective. Consequently, it did not dwell on the legal framework of election (i.e. Electoral Act) as this present work intends to do. The work for instance did not identify any gap in the Electoral Act when the authors where examining the possible reasons for election failure in Nigeria in their paragraph five. It is the intention of this present work to fill this gap by showing that the major causes of Electoral fraud etc. in Nigeria are traceable to the Electoral Act.

  1. Nigeria’s Historic Elections: Uncertainties and Anxieties of a vital Process37. This is study work on the elections in Nigeria for the Chatham House by an Associate Fellow. The study looks at the prospects of a successful 2015 Election after a false start in February and the postponement of the Presidential and National assembly elections to the 28th March from the original date of February 14th 201 5. It looks at the prospects of the use of new technology by independent national electoral commission (INEC). It posited however that there is wide spread concern that the system (the use of card reader) though sound in theory, may fail in practice.

The study posited that assuming the card readers‘ work, and that the accreditation and voting process are smooth, the process is still Vulnerable at the point of collation. According to the writer even in the event of a free and fair election, this period is likely to trigger significant violence as in 2011 when over 800 people died and thousands were displaced. The writer also looked at some problems that may negatively affect the elections i.e. the presence of foreign fighters on Nigerian soil the seeming security storm in the Niger Delter.

This write up is an exposition of the likely challenges to the electoral especially the use of card reader etc. The paper did not look at the Electoral Act or the Constitution as a major obstacle to free and fair elections. The paper did not recommend any way to confront the challenges it highlighted. It is pertinent to note also that contrary to the pessimistic postulation of the paper with regards to the use of card reader and possible violence this did not come to pass. This present work shows that the use of technology appears to be one of the solutions that will bequeath to Nigeria a free and fair election in future. This work will also show that unlike 2011 the level of violence in 2015 is much more reduced.

  1. Emerging Democracies in Africa: Challenges & Opportunities38.

This is a report on the two-day international conference for all countries in the African Continent organized by the National Institute for Legislative Studies of Nigerian National Assembly. It is a one hundred and sixty-four-page report consisting of an Introduction and Executive Summary. It consists of presentations at six sessions the presentation includes the following:

  1. Managing Conflict and Development: Sharing Experiences by Ambassador Etobo, E. E.
  2. Challenges of Leadership in Emerging Democracies in Africa: A Legislative Perspective by Prof Adair, J.
  3. Revising Youth Unemployment and Violence in Africa: Strategies for Quick Wins by Dr. Ukonjo-Iweala, N
  4. Youth Unemployment in a Global Contest: Change in the Modern Age by Prof Cunnigen. D
  5. Youth Unemployment in a Global Contest: Focus on Nigeria by Prof lyayi,
  6. Presentation on the theme ―Effective Governance: Delivering on Infrastructure and Social Services in Africa‖

This conference and the resultant report above is a bold attempt made toward discussing democratic development in Africa. It looks at the challenges opportunities in emerging democracies in Africa. The discussions and presentations including the discourse that follow are rich and robust. These coming from eminent political and academic leaders from Africa informed the quality of this conference.

However this Conference looks at the issues from broader perspective. It did not make a focused case study of major electoral obstacles confronting emerging democracies like Nigeria. Issues like ways to curtail election violence, rigging, electoral irregularity, electoral malpractices and constant tinkering with electoral rules i.e. the various internal and external lesson –learning reviews the commission undertook as a measure towards the continuous improvement of the electoral process. Chapter 5 highlights the key issues and challenges the commission faced in the conduct of the, 2011 General elections. Chapter 6 presents reports from the commissions‘ state offices that drew attention to specific and peculiar challenges faced by these offices in the field and how these challenges were addressed. Finally, chapter 7 concludes the Report by discussion the way forward, highlighting critical success factors that could play a significant role in the preparations for the 2015 General elections.

The report as note earlier is very comprehensive in that it touché on major themes of the 2011 General Elections. For Instance, under Post-election issues, it discusses post – election violence that followed the 2011 General elections. It also gave the number of election petitions and that went to the tribunal, the court of Appeal and the Supreme Court detailed and comprehensive as this report seems to be it has some observable gaps.

The report did not discuss the pros and cons or observable in Electoral Act 2011 (as amended) even though a lot of amendments were made to the electoral Act prior to the 2011 General Elections in order to cure the defects that would militate the smooth conduct of the 2011 General elections.

  1. Nigeria’s 2011 Elections: Best Run, But Most Violent39

This is a contribution to the journal of the United States institute of peace. It noted that Nigeria‘s 2011 general elections received high praise for being well managed, but post-election violence claimed 800 lives over three days in Northern Nigeria and displaced 65,000 people, making the election the most violent in Nigeria history

The violence was triggered by a belief that the challenger, Gen Muhamudu Buhari (rtd), a Northerner should have won the election Two special commissions established to examine the factors leading to the violence will have limited effect in breaking the cycle of violence unless their reports leads to ending impurity for political violence in addition, local peace making initiatives and local democratic institution must be strengthened. This report concisely dealt mainly on the violence that erupted after the election. However, it did not pin point those responsible for the violence nor recommend punishment nor ways of stemming future violence. The scope of the paper is therefore very limited which shows the papers limitations. This is the defects that this thesis intends to cure.

  1. 2015 Elections: Observers And Monitors Lopsided Reports40

This is an editorial report by the Pilot of 24th April, 2015. It x rayed the activities of the election observers and monitors in the 2015 General Elections. After assessing the functions and roles of these bodies, it concluded that it leaves much to be desired. It condemned what it saw a flooding of southern Nigeria especially the southern East and Rivers States by every manner of group in the civil society industry, in the name of ―Election Monitoring‖ or ―observation‖, the paper continued:

―We are not aware of any civil society, local or international, that monitored the two last elections in the core Northern States. This explains why the atrocities that were perpetrated during the elections in that region were either not well reported or not at all. These included underage voting, over voting and voting without the card reader‘.41

The paper poured vituperations on the general conduct of the elections and the manner it was conducted and concluded that the monitors and observers were there only to do the bidding of their external sponsors. This scathing criticism of these set of bodies that are an essential aspect of democratic elections may not be entirely true.

Understandably some of the observers might not live up to expectations but surely a good number of these groups are living up to expectation. Accordingly, some of the inaccuracies as pointed by this Editorial are issues that have been addressed objectively by this thesis.

  1. Looking Towards The 2015 General Elections42

This is a paper presented at the Nigeria‘s Civil Society Situation Room meeting on the state of the nation presented by Attahiru M. Jega.43 It was an attempt by the writer to look at the prospects of the 2015 General Elections. The writer looked at the conduct of the 2011 General Elections and discussed some major issues relating to the conduct of 2015 General Elections. Such issues include: election support infrastructure permanent voters card, INEC citizen contact center, voter and civic education, continuous voter registration exercise and constituency. In concluding, he asserted that works focus on repositioning the core processes of election in a way that will enable INEC to address some of the most obvious challenges that it faced in the April 2011 election.

The papers main focus is on the role of INEC in conducting election with specific reference to 2001 General Elections and a forecast of the 2015 elections.

Accordingly, it is narrow in scope as it is only limited to the role of INEC. It did not discuss the conduct of elections in its major ramifications.

Accordingly, this thesis is aimed at discussing the conduct of the 2011 and 2015 elections in their major themes.

1.8         Organizational Layout

This thesis has seven chapters;

Chapter one is the introductory chapter wherein the general background to the work is discussed. This includes the objective, statement of research problem; research methodology, objective and justification for this work are outlined. Literature review of related work is also attempted.

Chapter Two looks at the conceptual framework of the thesis showing the perspective from which this work is based.

Chapter Three is an overview of the Electoral Laws in Nigeria where attempt to look at the Electoral laws holistically is made.

Chapter Four is an attempt to look at the imperatives and challenges to a free, fair and credible election in Nigeria.

Chapter Five and Six examine how the 2010 Electoral Act impacted on the conduct of free, fair and credible elections in 2011 and 2015 respectively.

Chapter Seven concludes the work by drawing conclusions and making findings and recommendations based on the general and detailed discussions in preceding Chapters.

See also: ELECTORAL LAWS AND CREDIBLE ELECTIONS IN NIGERIA: AN APPRAISAL OF 2010 ELECTORAL ACT ON 2011 AND 2015 GENERAL ELECTIONS

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