In the 1990s, the results of credible elections were annulled in Nigeria, Algeria and some other African countries by dictatorial regimes. The political violence generated by such criminal annulment led to the disruption of the democratic process in the continent. In 2008, the refusal of the electoral body in Kenya to announce the results of the presidential election led to the brutal killing of over a thousand people. Owing to the weak criminal justice system in that country, Kofi Annan, a former Secretary-General of the United Nations was invited to conduct an inquiry into the political violence. The investigation report formed the basis of the trial of Uhuru Kenyatta and William Ruto before the International Criminal Court, ICC. Notwithstanding the election of both suspects as President and Vice President of Kenya while the case was pending, the charges were not discontinued.
Instead of strengthening the democratic institutions in their respective countries, African leaders have threatened to withdraw the ratification of the Statute of Rome by their countries if the trial of their Kenyan colleague was not terminated by the Special Prosecutor of the ICC. Although the case has been struck out for want of diligent prosecution, the African Union has decided to empower the African Court on Human Rights sitting in Arusha, Tanzania, to deal with allegations of genocide and crimes against humanity involving African leaders. As no political leader wanted to be charged before the ICC, the 2013 General Election in Kenya did not witness the orgy of violence that marred the previous election.
A fortnight ago, Mr. Annan and Emeka Anyaoku, a former Secretary-General of the Commonwealth, jointly presided over the signing of a Non-Violence Accord by the presidential candidates of the political parties that are taking part in the 2015 General Election scheduled to hold in Nigeria next month. At the well celebrated ceremony, which held in Abuja, the candidates of the two leading political parties embraced each other. While the media and several people were excited with the development, I expressed the view that the so called peace accord would not stem the tide of political violence in the country due to the violent nature of the electoral system coupled with official impunity.
In a number of decided cases, the courts have held that candidates sponsored by political parties cannot be held vicariously liable for politically motivated violence and electoral malpractice carried out on their behalf unless they can be directly linked with instigating or directing their supporters to engage in such criminality. Indeed, political leaders usually dissociate themselves from acts of violence by condemning the perpetrators. However, if the suspects are charged to court, the leaders turn round to engage the services of lawyers to defend them. In many cases, attorneys-general are directed to file nolle prosequi to stop the prosecution of suspects who belong to the ruling parties. Hence, the cases of the hundreds of suspects charged to court by the Police for electoral offences committed during the 2003, 2007 and 2011 general elections were abruptly terminated in all the states of the federation.
In the last few months, Nigerians have witnessed a reign of terror by armed thugs who have engaged in the bombing or burning of party secretariats, the destruction of vehicles belonging to political parties, the harassment of political opponents, the wearing of masks by “security personnel” at campaign rallies, the extrajudicial killing and brutal attacks of innocent people at party congresses and primary elections, the unprovoked assault on judges, the throwing of stones at leaders etc. In spite of the warning by the electoral officials, the illegal use of official vehicles by public officers for political campaigns has continued. Top political leaders have continued to make inciting statements. A governor published a death wish advert which could have provoked ethno-religious riots. Another governor attended a meeting where ex-militants threatened to declare a war on the Republic if the President is “dethroned” in the forthcoming general election.
It is hoped that those who are beating the drum of war will be called to order by President Jonathan. After all, they never took part in the street protests held in Lagos and Abuja which compelled the National Assembly to recognise Mr. Jonathan as the Acting President in May 2010. Neither did they blackmail Nigerians from all parts of the country to vote for the President in 2011. With respect to the stoning of President Jonathan during a political rally in Bauchi last week, Governor Isa Yuguda has pointed accusing fingers at some unnamed members of the ruling party. This is a serious allegation which should be investigated by the Police with a view to bringing the culprits to book.
It is common knowledge that the bulk of the infractions of the Law highlighted above took place after the signing of the peace accord. The National Human Rights Commission has said that “signing a peace pact is easy, the more difficult part is to ensure that the political office seekers and their supporters work within the rules of engagement.” But office seekers and their supporters cannot operate within ‘the rules of engagement” if they are treated like sacred cows. It ought to be pointed out that executive immunity does not cover election petitions and electoral offences! In Turaki v. Dalhaltu (2003) 38 WRN 54 at 168 Oguntade JCA (as he then was) held that “If a Governor were to be considered immuned from court proceedings, that would create the position where a sitting Governor would be able to flout election laws and regulations to the detriment of other persons contesting with him. This will make a nonsense of the election process and be against the spirit of our national Constitution which in its tenor provides for a free and fair election.”
Since ours is a country which claims to operate under the Rule of Law, it is inexplicable that the suspects involved in sabotaging the electoral process have not been charged to any criminal court. The crisis of impunity in the land has been compounded by the partisan involvement of the authorities of the police, the armed forces and other security agencies in the political process. Although there are adequate and elaborate provisions in the Electoral Act, 2010 as amended and the penal statutes to deal with political violence and electoral malfeasance, the managers of the neo-colonial state lack the political will to bring electoral offenders to book.
In 2007, President Umaru Yar’Adua admitted that the election which brought him to power was flawed. In a bid to sanitize the electoral system, he set up the Muhammadu Uwais Electoral Committee. Among other recommendations, the Committee called for the establishment of an Electoral Offences Tribunal. The Yar’Adua Administration rejected the recommendation without any justification. However, following the political violence which greeted the announcement of the results of the presidential election in some states in the North and Akwa Ibom in April 2011, President Goodluck Jonathan set up the Ahmed Lemu Panel to investigate the crisis. From the detailed report of the Panel, 943 people were killed while 838 others were injured. While the Federal Government has paid over N10 billion as reparation to the victims of the riots, the 626 suspects who were arrested in connection with arson, culpable homicide and other grave offences perpetrated during the civil disturbances have been left off the hook on account of official impunity that has become the order of the day under the current political dispensation.
Convinced that electoral offenders ought to be prosecuted in order to stop electoral violence, the panel equally made a strong case for the setting up of “an autonomous and constitutionally recognized electoral Offences Tribunal, but which may be an ad hoc body as it may not have much to do in between election periods.” In accepting the recommendation, the Federal Government undertook to take all necessary actions to establish the Tribunal. Although the recommendation was adopted in August 2012, the Tribunal is yet to be set up. Having signed the non-violence accord, President Goodluck Jonathan should now proceed to institute the Electoral Offences Tribunal. It is high time an end was put to the official endorsement of politically motivated violence in the country.
However, if the Federal Government is desirous to maintain the status quo, it is pertinent to note that section 150 of the Electoral Act has empowered the Independent National Electoral Commission, INEC, to prosecute electoral offenders. But since INEC lacks the capacity to discharge the onerous statutory duty, the Nigerian Bar Association, NBA, should take up the task of prosecuting electoral offenders throughout the country. To ensure the success of the proposal, the NBA should be prepared to collaborate with the Body of Attorneys-General and the Nigeria Police Force. Unless electoral offenders are punished as envisaged by the Electoral Act and the Constitution, the subversion of the democratic process will continue unabated.
Femi Falana is a Senior Advocate of Nigeria.