The 2023 General Elections: A Delineation of the Principles of Rule of Law and Electoral Democracy

In 1999, the Nigerian state opted for a constitutional democracy over a military dictatorship which destroyed the fundamentals of the economy, commerce, industry and rights. Today, after twenty-four years, everything seems to be manifestly wrong like there’s no constitution or a body of laws. The exercise of statutory powers is no longer according to the black-and-white lettered laws, but according to the convenience, discretion, the whims and caprices of the holders of political offices.

From the unfolding events in the Nigerian state, words of mouth have become law like in William Shakespeare’s Henry VI, Part 2 (Act 4, Scene 7), where Cade decreed “I have thought upon it, it shall be so. Away, burn all the records of the realm; my mouth shall be the parliament of England”. The problem becomes, if the speaker has a stinking mouth, we will have stinking laws; “then we are like to have biting statutes unless his teeth be pulled out”. Shakespeare’s view through his literary work is not farfetched, Dicey had, in the 19th Century, bewailed an obvious decline in respect for the rule of law in England. Montesquieu developed theories of legalism, highlighting how despotic governments tend to have simple laws, thereby giving them leverage for peremptory administration with little or no respect for procedural fragility.

A true and effective democratic government is only possible through a formidable electoral system. While the people always reserve the sovereignty and supreme authority (See Section 14 (2), CFRN 1999 (as altered)), every other instrument and organ derives their powers and authority from the people. Democracy thus guarantees the leverage of electoral processes to determine who will be conferred with the power and authority to take on the basic task of government, whatever the parameters may be, subject to the provisions of the law.

The fact that the principles of rule of law are attuned to democracy is not an axiom, it has been proved over time that rule of law is considered a fundamental part of democracy. Rule of law postulates that ‘all things must be done in accordance to the law’. This position is fundamental to the entrenchment of the principles of democracy in a state, including but not limited to the participation of citizens, political tolerance, multi-party system, control over the abuse of power, human rights, free courts, and very vital, free and fair elections.

For a nation to be called ‘democratic’, all actions of government must be founded on these principles. Equally, the government must derive all its power and authority from the people through free, fair, and credible elections conducted in line with the lettered words and true spirit of the rules of law. What may be considered a free, fair and credible election may not be limitive, however, there are ideals it must meet, including; freedom from exclusion of intending voters, the possibility to cast votes and that every legitimate vote is accounted for, the guarantee of the independence and neutrality of an umpire to oversee electoral processes in line with pre-established guidelines and importantly, the establishment of an independent body to apply these pre-established rules, entertain, hear and determine disputes that arise from the conduct of elections.

Over the years, elections in Nigeria have been met with blatant abuse of the rule of law and have never met up to the hopes and standards of Nigerians. The ideals of elections have never been upheld by any government since the return to democracy in 1999. Former President Late Umaru Musa Yar’adua, had categorized the Prof. Maurice Iwu (a Professor of Pharmacognosy) conducted elections that brought him to power as a sham, one which local and foreign observers at the time also adjudged to be the worst election in Nigeria thereby causing Nigeria an embarrassment in the international community; Former President Goodluck Jonathan alluded to being confronted with ‘embarrassing questions’ about the 2007 general elections whenever he travelled abroad. These events led to the inauguration of a 23-member Electoral Reform Committee to “examine the entire electoral process with a view to ensure that we (sic) raise the quality and standard of our general elections and thereby deepen our democracy”

The Yar’adua administration accepted over 90% of the Committee’s recommendations and took immediate steps to implement some of them. The Electoral Reform Committee led by the Former Chief Justice of Nigeria, Muhammad Uwais comprised of highly intellectual and erudite personalities including the best brains from the academic, civil society, professional groups and the public service, hence the thoroughness and comprehensiveness of the report. The report showed that poverty and corruption, exclusion of critical sectors of the population amongst others have been issues that have grappled with a credible election system in Nigeria. Very striking amidst the plethora of recommendations by the Committee are; the adjudication of election disputes expeditiously before swearing-in of winners of the election; the powers of appointment to the INEC Board being removed from the President and transferred to the National Judicial Council; amendment of the 1999 Constitution and such other laws guiding the electoral body and political parties to ensure conformity with the fundamental laws of the land, capable of promoting justice and fairness.

With some reforms to the electoral laws came the 2023 general elections. The dynamism of the 2023 general elections, due to the emergence of a ‘third force’, saw a massive 11.26% increase of registered eligible voters from 84million to 93.46million with over 37million of this number, representing over 40% of registered voters, youths. It is worth mentioning that these numbers are attributable to the emergence and innovations of the much-debated Electoral Act of 2022 which introduced some degree of technology into the electoral system. To complement the provisions of the Act, the Independent National Electoral Commission-INEC on Friday, July June 4, 2022; acting in accordance with the Constitution of the Federal Republic of Nigeria 1999 (as altered) and particularly, Section 149, Electoral Act 2022 (EA); issued the Regulations and Guidelines for the Conduct of Elections 2022 (RGCE), Manual for Election Officials 2023 (MEO) and other regulations and memos.

In the spirit of rule of law, in the dictum of Obaseki, JSC in Military Governor of Lagos State & Ors v. Ojukwu & Anor (1986) LPELR-3186(SC) (Pp 21 - 22 Paras C - A), in holding elections, “government should be conducted within the frame-work of recognized rules and principles which restrict discretionary power which Coke colourfully spoke of as ‘golden and straight metewand of law as opposed to the uncertain and crooked cord of discretion’”. The government, through established agencies and parastatals, must be circumspect to uphold the law in the exercise of its duties. However so well an act is done, where it fails to conform to the dictates of law, such acts will be deemed illegal and invalid (ex nihilo nihil fit) like the words of the learned jurist, Lord Denning in the celebrated case of Macfoy v. UAC (1961) 3 WLR 1405, “You cannot put something on nothing and expect it to stay there. It will collapse”.

Heading into the general elections in 2023, the interest by different demography of the population was monumental, the body of electoral laws was deemed worthy to birth a dispensation of free, fair, and credible elections in Nigeria, if and only if the laws were allowed to thrive and strictly adhered to. Conversely, one would wonder the basis for which a great belief and trust was built on the President Buhari/APC-led federal government and its promise of a credible election and transition, probably hope or the notion that the word ‘Independent’ had suddenly taken its true definition in the Independent National Electoral Commission. This is not farfetched, the Buhari/APC government had been categorized by local and foreign civil society groups as one which has eroded, almost entirely, the principles of rule of law and entrenched dictatorship. In 2019, Dr Olaniyan, legal adviser to Amnesty International, said that President Buhari had shown “stunning disregard for the rule of law and human rights, ignoring Nigerian judges on at least 40 occasions”. Judicial orders were treated with utmost contempt with the continuous incarceration of Nnamdi Kanu, Dasuki Sambo, Ibrahim el-Zakzaky and Omoyele Sowore. The government refused to call its hyenas of disobedience to order and flagrantly violated clear positions of the law, like the unfair, flawed and unconstitutional removal of the Chief Justice of Nigeria, Justice Walter Onnoghen. Unfortunately, this trust and hope were dashed during and after the conduct of the elections.

The Commission (INEC) agreed to the notion which has become of general notice, that “one of the problems noticed in the electoral process is the irregularities that take place between the Polling Units (PUs) after the announcement of results and the point of result collation. Sometimes results are hijacked, exchanged, or even destroyed at the PU, or on the way to the Collation Centres. It becomes necessary to apply technology to transmit the data from the Polling Units such that the results are collated up to the point of result declaration” (Paragraph 2.9.0, MEO 2023). The Commission in response to various reports that they will not transmit results directly from polling units, signed and made public a press release on November 11, 2022, stating in unequivocal and unambiguous terms thus;

“The public should ignore the reports. The Bimodal Voter Accreditation System (BVAS) and IReV have come to stay for voter accreditation and uploading of polling unit results in real-time in Nigeria”

This press release was the cherry on the ice cream of assurance that the Commission recognized the problem and created a solution with the requirement to transmit election results ‘directly from the polling units and in real-time’ to forestall any fraudulent act. This is contained in Clause 38, Clause 48 and Clause 93, RGCE 2022. Clause 38 provides emphatically;

“On completion of all the Polling Unit voting and results procedures, the Presiding Officer shall:

(i) Electronically transmit or transfer the result of the Polling Unit, direct to the collation system as prescribed by the Commission.

(ii) Use the BVAS to upload a scanned copy of the EC8A to the INEC Result Viewing Portal (IReV), as prescribed by the Commission.

(iii) Take the BVAS and the original copy of each of the forms in tamper-evident envelope to the Registration Area/Ward Collation Officer, in the company of Security Agents. The Polling Agents may accompany the Presiding Officer to the RA/Ward Collation Centre.”

This position of the Commission is supportive of an established law, passed by the national legislature and assented to by the president. Section 64(4), EA 2022 provides;

“A collation officer or returning officer at an election shall collate and announce the result of an election, subject to his or her verification and confirmation that the –

(a) number of accredited voters stated on the collated result are correct and consistent with the number of accredited voters recorded and transmitted directly from polling units under section 47 (2) of this Act;

(b) the votes stated on the collated result are correct and consistent with the votes or results recorded and transmitted directly from polling units under section 60(4) of this Act.”

Clause 93, RGCE 2022 envisages the possibility of the non-existence of a hard copy of collated results. It cures this lacuna by giving the electronically transmitted results ‘from the IReV portal’ priority for the continuation of collation. And where by any circumstance, the hardcopy and electronically transmitted results are unavailable, only the duplicate hardcopies issued by the Commission to the Nigeria Police Force (through its officer present at the polling unit) and agents of political parties shall be used by the collation officer to collate and announce results. (See also Clause 48(c), RGCE 2022 and Section 60(3), EA 2022)

By the foregoing provisions, the Commission legally prescribed a manner for the conduct of the elections and the manner in which agents of the Commission will act particularly in relation to the collation and transfer of results. Where the Commission have legally prescribed a manner for the conduct of elections, it becomes binding upon the Commission and its agents. The breach of any of these regulations, guidelines or memos is tantamount to a breach of law. Emphatically, amongst other provisions punishing the breach of prescribed modus by agents of the Commission is Section 60(6), EA 2022 which prescribes the penalty for contravention as a fine of N500,000 or imprisonment for a term of at least six months.

A community reading of the provisions of the MEO 2023, RGCE 2022 and the EA 2022 reveal that collating officers and returning officers must not continue in the frolic of collating or announcing if there have not been any records of election results transmitted, instantaneously, directly from the polling units. These legitimate laws make the upload and transmission of election results to the Collation System and the INEC Result Viewing Portal (IReV) a condition precedent to the collation and announcement of results. The rationale is simple and logical, if there is no instantaneous transmission, there will be no barometer to test the correctness of a disputed result as envisaged by paragraph (d) of Section 64(6), EA 2022. The section provides;

“Where during collation of results, there is a dispute regarding a collated result or the result of an election from any polling unit, the collation officer or returning officer shall use the following to determine the correctness of the disputed result –

(d) the votes and results of the election recorded and transmitted directly from each polling unit where the election is disputed, as prescribed under section 60 (4) of this Act.“

As held Per Wambai, JCA in Abia State University, Uturu & Anor v. Kalu (2021) LPELR-56190(CA) (Pp 42 - 43 Paras F - C), a condition precedent delays the vesting of a right until the happening of an event. When the doing of something is a condition precedent to the existence of a right, it means that the right is dependent on the happening of an event; the right is then conditional as opposed to absolute right. Consequently, the right of a collation or presiding officer to collate and announce results cannot vest until the condition of electronic transmission to the collation system and the IReV takes precedence. Where such an officer violates this rule of law, the courts will consider it to be a jumping of the gun. (See Re: Yindang & Ors (2021) LPELR-55149(CA))

The duty of the collation officer or returning officer to verify and confirm that the results of the election have been transmitted directly from the polling units is by law (Section 64(4), EA 2022) sacrosanct and cannot be changed. In fact, any intentional dereliction of this duty by anyone concerned, upon conviction, is liable to a fine of N5,000,000 or imprisonment for a term of at least three years or both under Section 64(9), EA 2022.

The Commission through its agents during the conduct of the 2023 general elections and similarly, the state elections which were held three weeks after, in flagrante delicto, disregarded the extant electoral laws, refused to upload, and transmit results to both the collation system and IReV, thereby threatening the very foundation of democracy and rule of law in Nigeria. Responding to candidates and parties in the elections, civil society groups, the media, and the public had begun to criticize the breach of electoral laws in the courts of public opinion; just like Adam who blamed Eve and could not man up to God for breaching the law by eating of the forbidden fruit, the Commission dashed the assurances and hopes of Nigerians by blaming the server which they refused to upload to.

Prior to the elections, many Nigerians had raised concerns about the inability to pick up their Permanent Voters Cards (PVCs). Agents of the Commission informed them at the designated points of pickup that their cards were not printed. Mr Festus Okoye Esq., the INEC National Commissioner in charge of Information and Voter Education, while responding to these concerns at a Webinar on The 2023 General Elections and The Electoral Act 2022 organized by the Policy and Legal Advocacy Centre-PLAC, confirmed categorically that the Commission indeed failed to print all the PVCs of duly and legitimate registered voters.

Section 78 and Item (e), Paragraph 15 of Part 1 of the Third Schedule to the Constitution empowers the Commission to arrange and conduct the registration of persons qualified to vote. These qualifications for registration are contained within Section 12(1), EA 2022, which is in pari materia with the provisions of Sections 77(2) and 117(2) of the Constitution and is to the effect that every citizen of Nigeria, who has attained the age of eighteen years, residing, or working in Nigeria at the time of the registration of voters, shall be entitled to be registered as a voter for that election. It, therefore, follows that anyone who has met these requirements and has presented themselves to be registered at designated centres and is not subject to legal incapacities must be registered. Any person so registered has obtained a franchise and any acts or inactions that lead to the deprivation of such opportunity and power to vote will be considered a disenfranchisement (in this case, may be known as Institutional disenfranchisement) and a violation of fundamental human rights. The ineptitude of the Commission manifested the disenfranchisement of millions of voters due to its deliberate poor and lopsided distribution of PVCs and failure to print the cards of already registered voters. These are not moral wrongs but a violation of rights. The Supreme Court has painstakingly, in several decisions, upheld the position that “a voter is disenfranchised when his right to vote is taken away. This is to say he claims to be registered but was not allowed to vote”. (See Ngige v. INEC (2015) 1 NWLR (Pt. 1440) 281; Omajali v. David & Ors (2019) LPELR-49381(SC)). The Supreme Court ruling in the case of CPC v. Ombugadu (2013) LPELR-21007(SC) is to the effect that the enfranchisement rights of a voter are sacrosanct, hence, a community reading of the decisions of the courts and the provisions of Section 132(5) and 178(5) of the Constitution, and other relevant provisions addressed, every person who has been registered to vote (irrespective of the actions or inactions of the Commission) shall be entitled to vote at an election.

The Commission decided to ‘apologize’ for its ineptitude and failures in the production of PVCs and its proper distribution, rather than find solutions to the unending debacle that has bedevilled our electoral system. These actions by the government are a clear show of sacrificing our democracy, the rule of law, and a credible electoral system on the altar of incompetence, non-compliance with laws, and corruption; except we provide a sacrificial lamb like the one that replaced Isaac on Mount Moriah, there will be no electoral democracy, and this will be a threat to the rubric of our democracy and independence.

In conclusion, the Federal Government, INEC, and other agencies and parastatals involved in the electoral system must acquaint themselves with the provisions of the laws regulating elections in Nigeria. Election circles have proven that agents of these bodies do not undergo proper and comprehensive training on the fundamentals of elections as they affect the strict application of the law. Ignorantia juris non excusat; the ignorance of the law never excuses anyone from liability for the violation. The punishments for the violation of the provisions of the Electoral Act are heavy, including fines, imprisonment, or both, hence, individuals who are under the payroll of the Commission must not be punished based on their ignorance which was furthered by the Commission.