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Electoral Offences As Major Challenge To Credible Polls

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The Electoral Act 2010 (as amended) is replete with list of scores of offences and prescribed punishment for violators. AHURAKA YUSUF ISAH in this report writes on why people keep committing electoral offences despite the law against them

Notwithstanding, even the deceased seem to cast ballots from the grave; just as children too are on the electoral rolls. And on election days, ballot boxes disappear into thin air. Candidates are arrested, poisoned, even murdered. Although elections are now means to assume power or positions, but in many cases they are anything but free and fair.

To be precise, Part V111 of the Electoral Act, 2010 (as amended) creates different categories of electoral offences and prescribes punishment for them. There are pre-election offences and election day offences.

The registration of voters, submission of list of candidates for elections, campaigns and the conduct of the campaigns are listed as pre-election matters, and offences for their contravention created and sanctions imposed.

Any person who contravenes section 12 relating to voters registration in one registration centre or registering more than once in the same registration centre or Section 16(2) relating to possession of more than one valid voters card, or Section 24(1) relating to registration of voters shall be liable on conviction to a fine not exceeding N100, 000 or imprisonment for a term not exceeding one year or both.

Any person who contravenes section 18(2) relating to issuance of a duplicate voters card to a voter on polling day or less than 30 days before polling day shall be liable on conviction to a fine not exceeding N200, 000 or imprisonment for a term not exceeding two years or both. Offences of buying or selling voters cards in contravention of section 23 attracts a fine not exceeding N500,000 or imprisonment not exceeding two years or both.

Any person who uses duress or threats of any kind to cause or induce any person or persons generally to refrain from registering as a voter or voters or in any way hindering another person from registering as a voter commits an offence and is liable on conviction, to a fine not exceeding N500,000 or imprisonment not exceeding 5 years.

Section 31 of the Act relates to the submission of list of candidates and their affidavit by political parties, while a political party which presents to the commission the name of a candidate who does not meet the qualifications stipulated in section 31 commits an offence and is liable on conviction to a maximum fine of N500,000 while a person who nominates more than one person for election to the same office in contravention of section 32 commits an offence and is liable on conviction to a maximum fine of N100,000 or imprisonment for 3 months or both.

Section 77(1) of the Act guarantees access to election documents by parties in an election petition and by section 77(2) any Resident Electoral Commissioner who wilfully fails to comply within seven days of an application for access to such documents commits an offence and is liable on conviction to a maximum fine of N2, 000,000 or imprisonment for a term not exceeding 12 months, or both.

By section 81 of the Electoral Act, a political party or association which contravenes the provisions of section 227 of the Constitution of the Federal Republic of Nigeria which prohibits retention, organisation, training or equipping quasi-military organisations commits an offence and is liable on conviction to a fine of N500,000.00 and N700,000.00 for any subsequent offence; and N50,000.00 for every day that the offence continues while a person who aids and abets a political party to contravene section 227 commits an offence and is liable on conviction to a fine of N500,000 or imprisonment for a term of three years or both.

Section 86 of the Act criminalises the refusal of political parties to provide information or clarification to the Independent National Electoral Commission in connection with their activities and conviction attracts a fine of not less than N500, 000.00 while offences relating to finances of political parties in section 88 and 89 of the Act attract the same penalty.

Section 91 of the Act criminalises contravention of limitation on election Section 91 of the Act criminalizes contravention of limitation on election expenses. A presidential candidate who knowingly contravenes it is liable to a maximum fine of N1, 000,000.00 or imprisonment for a period of 12months or both. In the case of governorship election contravention and conviction attracts a fine of N800, 000.00 or imprisonment for nine months or both. In the case of senatorial seat elections in the National Assembly contravention and conviction attracts a fine of N600, 000.00 or imprisonment for six months or both. In the case of House of Representatives seat election in the National Assembly contravention of the law and conviction attracts a fine of N500, 000.00 or imprisonment for five months or both.

In the case of State House of Assembly election, contravention of the law and conviction attracts a fine of N300, 000.00 or three months imprisonment or both. In the case of chairmanship election to an Area Council, contravention of the law and conviction attracts a fine ofN300, 000.00 or three months imprisonment or both. In the case of councillorship election to an Area Council, contravention and conviction attracts a fine of N100, 000.00 or one month imprisonment or both.

Section 91(9) of the Act also provides that no individual or other entity shall donate more than one million Naira (N1,000,000.00) to any candidate and any individual who knowingly contravenes the section shall on conviction be liable to a maximum fine of N500, 000.00 or 9 months imprisonment or both.

Moreover, by section 91(12) of the Act, any accountant who falsifies or conspires or aids a candidate to forge or falsify a document relating to his expenditure at an election or receipt or donation for the election or in any way aids and abets the breach of the provisions of section 91 of the Act commits an offence and on conviction is liable to 10 years imprisonment.

Part IV of the Electoral Act, 2010 (as amended) also creates separate offences and prescribes penalties for them. Offences relating to voters registration, etc (Section 117) attracts a maximum fine of N1, 000,000.00 or 12 months imprisonment or both; offences in respect of nomination, etc in section 118(1) carries a maximum term of imprisonment for two years while offences in respect of nomination under section 118(3) is liable on conviction to a maximum fine of N50, 000,000 or for a term a of not less than 10 years or both. Disorderly behaviour at political meetings (Section 119) carries a maximum fine of N500,000 or imprisonment for 12 months or both; improper use of voters cards (Section 120) attracts a maximum fine of N1,000,000 or imprisonment for 12 months or both; improper use of vehicles (Section 121) attracts a maximum fine of N500,000 or to imprisonment for six months or both; Impersonation and voting when not qualified (Section 122)attracts a maximum fine of N500,000 or to imprisonment for 12 months or both; dereliction ofduty(Section 123) by any officer appointed under the Act or by any Polling Officer attracts a maximum fine of N500,000 or imprisonment for six months or both; while anybody who announces or publishes an election result knowing same to be false shall be liable to 36months imprisonment.

A Returning Officer or Collation Officer who delivers or causes to be delivered a false Certificate of Return shall be liable to three years imprisonment without an option of fine and the same punishment applies to any person who delivers or causes to be delivered a false Certificate of Return knowing it to be false; bribery and conspiracy(Section 124)attracts a maximum fine of N500,000 or imprisonment for 12 months or both; requirement of secrecy in voting(Section 125) and contravention attracts a maximum fine of N100,000 or imprisonment for 6months or both; wrongful voting and false statements(Section 126) attracts a maximum fine of N100,000 or imprisonment for six months or both; voting by unregistered person(Section 127)attracts a maximum fine of N100,000 or imprisonment for six months or both; disorderly conduct at elections(Section 128)attracts a maximum fine of N500,000 or imprisonment for 12 months or both; offences on Election Day(Section 129)(1)attracts a maximum fine of N100,000 or imprisonment for six months or both; while by Section 129(4) anybody who snatches or destroys any election material shall be liable on conviction to 24months imprisonment; undue influence(Section 130) attracts a maximum fine of N100,000 or imprisonment for 12 month130)attracts a maximum fine of N100,000 or imprisonment for 12 months or both; threatening(Section 131)attracts a maximum fine of N1,000,000.00 or imprisonment for 3years.

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.

PROSECUTION

By section 150(1) & (2) of the Electoral Act, 2010(as amended) an offence committed under the Act shall be triable in a Magistrates’ 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 less 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. 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 294 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.

Pics

(1.) CJN, Justice Onnoghen (2.) INEC boss, Prof. Yakubu

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