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Femi Falana (SAN) |
By Femi Falana
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, Mr. Kofi Anan, 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 Messrs 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. Kofi Anan and Chief 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.
Condemnation
of perpetrators
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 streets protests
held in Lagos and Abuja which compelled the National Assembly to recognize Dr.
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 Yaguda 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.”
Crisis
of impunity
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 Mohammadu
Uwais Electoral Committee. Among other recommendations the Committee called for
the establishment of an Electoral Offences Tribunal.The Yaradua 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 of the Federal Government undertook
to take all necessary actions to establish the Tribunal.
Non
violence accord
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 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 deal with prosecute
electoral offenders. But since the 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.
Originally published in Vanguard.
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