Attahiru Jega, the widely admired Chairperson of Nigeria’s Independent National Electoral Commission (INEC), has repeatedly promised that the Commission under his leadership would not endorse false election returns. Professor Jega’s INEC has both the responsibility and powers to take action to correct the tallying anomalies that could derail this promise and return on-going elections in the country to a familiar path of infamy. In doing so, it must act firm, fast and determined.
The Commission was initially widely commended for the relative success of Federal Parliamentary elections, which took place on 9 April after a false start the previous week-end. Losers in the early returns included the incumbent Speaker of Nigeria’s lower House of Representatives as well as the daughter of former President, who had sought election to the upper legislative chamber of the Senate.
Five days after those polls, many of the contests remain inconclusive, the declaration of results is still incomplete and the early optimism risks being drowned out by a chorus of familiar tales of electoral mendacity.
Complaints of ballot-stuffing and corruption of low-level electoral officials have been the staple of previous Nigerian elections. In many parts of the country, voting has been marred by serious violence. Four days after the legislative elections, the INEC has so far confirmed 39 election-related killings. By far the biggest single complaint, however, and a major cause of the violence are worrying complaints of falsification of polling returns during collation and declaration of false returns.
In parts of Benue State in north-central Nigeria, for instance, some localities have returned entirely implausible turn-outs, in some cases as high as 98%, turning out just enough votes to edge out what looked like certain victory for initial under-dogs. The contest for the Senate seat in Anambra State in south-eastern Nigeria has degenerated into a farce with two different representatives of the INEC announcing two different winners for two different parties before a third official stepped in to announce a stalemate and an investigation.
To enhance the credibility of the returns, the Commission had instituted a system called “open-secret” balloting. Under this system, the presiding officers at each voting precinct or station must first verify that intending voters who present themselves for voting are on the voters register and possess a voter’s card. Voters who meet this requirement are then accredited to vote. Accreditation takes up to four hours, after which only accredited voters then cast their ballots observed by party agents and under the protection of law enforcement.
At the end of voting, the presiding officer counts the votes in the presence of all voters, announces the results in the precinct and pastes a copy of the result for that precinct publicly at the venue.
The problems with Nigeria’s electoral process begin after this point. Thereafter, the presiding must go to a central collation centre for the constituency to deposit the result. In the creeks of the Delta, this journey is made by boat; in the semi-Sahelian states of the North West, this journey can take several hundreds of desolate kilometers. Each electoral constituency comprises several voting precincts.
In the legislative elections, there have been quite credible allegations that polling results were altered between the precincts, collation and declaration of results. The Commission must act swiftly to address these.
Under existing practice, election returns once announced cannot be changed except by a court or tribunal. This does not allow for reasonable exceptions or limitations permissible under law, such as where there has been a genuine error in the declaration of returns or where returns have been manifestly falsified. Incumbents have in the past relied on this to pressurize electoral officials into announcing falsified results.
Candidates who have complaints against the returns thus declared must lawyer-up for an expensive and often interminable litigation process. The burden of proving that a return is false is usually difficult to discharge. Such cases have been known to last in some cases for as long as the four-year tenure of elected public officials, leaving both frustrated candidates and a bewildered public in their wake. Very few of such cases succeed and many are trailed by allegations of judicial corruption.
To avoid much of the resulting cost and confusion, the INEC must take effective steps to minimize the perception that it has historically not cared much about how winners and losers emerge in Nigeria’s elections.
Although it is arguably be precluded from changing returns that have been announced, the Commission is not obliged to recognize as winners people who have emerged under a cloud of credibly attested electoral malpractice. The laws governing elections in Nigeria empower the Commission to issue a “Certificate of Return” only to those who have won. Only those persons who present such certificates can be inaugurated into office.
The standard for issuing a certificate of return is an objective one, requiring the Commission to accredit only those who have won, not merely those who have been declared as having won under a cloud. As a result, the leadership of the Commission must institute internal processes to verify the credibility of returns announced by its officials at the end of collation.
Where it cannot confidently attest to the credibility of a return, the Commission must decline to issue a Certificate of Return. Instead, it should publish its reasons for refusing to do so. Any declared winner who is dis-satisfied with this decision or the reasons for it can challenge the Commission to justify itself in a Court of law.
By doing so, the Commission will extricate itself from perceptions of encouraging or tolerating electoral corruption, reinforce the modest steps it has taken thus far to infuse credibility into the process of choosing Nigeria’s political leaders and fulfill its promise not to endorse false election returns.
Odinkalu & Ilo are both lawyers in Abuja