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Election Tribunals – The Third Way

Mobolaji E. Aluko, Ph.D.

Burtonsville, Maryland, USA

alukome@aol.com

Thursday, May 8, 2003

Fallouts from the recent elections continue in our dear country. And so should they.

Elections are about choices, either about issues or about personalities. That is, for example, "should we build this road or not?" or "should this person be governor or that person?”

In a dictatorship, there really is no need for elections, even though in a non-maximum dictatorship, the dictator decides what to put to vote or what not to put to vote (go, no-go areas.) If he puts some issues or personalities to vote, and he does not REALLY like the outcome, a dictator can easily annul the outcome, and maintain that annulment if he uses force of arms - or threat of it.

That is what our former Head of State and military dictator IBB did in 1993, when he unilaterally annulled the June 12 elections. But quite frankly annulments are in the firm province of dictators, so we should not have been too surprised that it happened at all. After all, several annulments had happened just leading to the June 12 annulment - not at the same scale, of course - even though that does not mean that we should simply accept each new dastardly thing that has happened before.

Let us arrive at the present elections - April 12, April 19, May 3. They have come, but they are not yet gone. No matter what we think, what we have now is a CIVILIAN regime in which these elections happened. I do not say a DEMOCRATIC regime yet, but at least a NON-MILITARY regime. Actually, the Federal government, INEC, etc. would say that we are in a civilian democratic regime. That is debatable. However, certainly, we are NOT in a dictatorship, military or civilian. Only if we are in a maximum dictatorship should we not complain AT ALL about what is done to ANY set of elections.

About these elections, I was not present in Nigeria. I was not one of the election monitors, but looking at the figures on the INEC website, I believe that there was massive rigging in various centers, unprecedented in some of them, in fact rigging quite so embarrassing to some of the winners who might not have been privy to exactly how their operatives were going to ensure that they won.

When personalities are the election objects, two sets of people TRADITIONALLY have locus standi:

(i) the voters themselves, who have been given the impression that their votes will count, so they have taken the trouble to (a) register; (b) listen to the candidates;

(c) line up and (d) vote and (e) listen out for the outcome of their votes. Some of these voters are fully aware that their candidate would not win, but wish to make a point of voting for him or her anyway. If his candidate wins in a free and fair election, so be it, but neither he or his candidate need be egregiously humiliated in the process.

(ii) the candidates themselves, who have been given the impression that their candidacy would count, so they have taken the trouble to (a) present themselves within their parties for consideration; (b) won their party nomination; (c) registered with INEC as official candidates; (d) campaigned (e) joined other voters in doing (i) above. Some of these candidates are fully aware that ONLY ONE PERSON will win in these elections, and they are most probably not the one. However, if they win in a free and fair election, so be it. If they do not win, they do not expect to be egregiously humiliated in the process.

However, PRACTICALLY, when elections are over, in order that we do not have ALL voters complain in a manner that demands to be heard, not ALL voters have locus standi. In the case of Nigeria, the following are the people who have locus standi, and here are the possible basis of their complaints:

QUOTE

ELECTORAL LAW 2002

133. (1) An election petition may be presented by one or more of the following persons: -

(a) a candidate at an election;

(b) a Political Party which participated at the election.

(2) The person whose election is complained of is, in this Act, referred to as the Respondent, but if the petition complains of the conduct of an Electoral Officer, a Presiding Officer, a Returning Officer or any other person who took part in the conduct of an election, such officer or person shall for the purpose of this Act be deemed to be a Respondent and shall be joined in the election petition in his or her official status as a necessary party.

134. (1) An election may be questioned on any of the following grounds, that is to say:

(a) that a person whose election is questioned was, at the time of the election, not qualified to contest the election;

(b) that the election was invalid by reason of corrupt practices or non-compliance with the provisions of this Act;

(c) that the respondent was not duly elected by majority of lawful votes cast at the election; or

(d) that the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.

UNQUOTE

I have used this tortuous route to arrive at a few pointers, because I have read some objections stating views about complaints, that:

(i) those candidates who are complaining are hypocrites because they too have rigged either before or in these same elections. If in these elections, the claim is that their complaint is really that they were out-rigged.

(ii) some of those complainants are hypocrites because they did not campaign at all or did not campaign hard enough.

(iii) some of those complainants are hypocrites because "how did they expect to beat a more popular candidate - like Mr. X or Mrs. Y?"

However, looking at the Election rules above, I do not see anywhere where such people or their parties are excluded from filing petitions! They or their parties can file Electoral Law 2002 Section 134 petitions, and it is up to the Election Tribunal to uphold or reject their claims based on their ability to make their point.

So where is the beef?

As to (iii) above, the ONLY way we can REALLY know whether Mr. X or Mr. Y is more popular than our complaining candidate Mr. Z is through FREE and FAIR ELECTIONS. Any other way is a crapshoot. Every FAKE BALLOT is an annulment of the vote of A HUMAN BEING that voted THE OTHER WAY. Every candidate who wins an election by rigging that he would otherwise not have won is an annulment of ALL THOSE HUMAN BEINGS that would have given the opponent the winning edge. It is as if those human beings never existed. That candidate was voted in by phantoms.

In the present set of elections, many winners appear to be recipients of a balance of many phantom votes.

Finally, the philosophical argument that we need to address is the issue when it is ESTABLISHED that a person would have won whether there was RIGGING or NOT - that is a person wins with a fake INCREASED MARGIN due to rigging. This is the traditional concept that despite the rigging, the "wishes of the people have been expressed." This is what president Obasanjo and his supporters are clinging to - or most winners in Nigeria always cling to. Unproven claim so far – but there it is.

We should abhor that concept. There should be no rigging, period. Zero tolerance.

So, compatriots, please let us spare those people - particularly candidates and parties - who are complaining about these elections. I did not vote and I was not a candidate, so I have no locus standi. However, INEC should listen to the complaints of defeated candidates and parties, failing which I believe that those entities should go to the court.

The recent Enugu tribunal ruling asking INEC to reveal all the ballot papers in the gubernatorial elections is an unexpected one, most probably aided by INEC’s absence from the court to press their own claim. It is a reasonable demand that should be permanently part of our Electoral Laws – for example the demand for INEC to retain all ballot papers for at least 31 days after the announcement of results, precisely for a time like this - but reason does not always equate to righteousness in our country. However the ruling gives one HOPE that maybe something may come out of these tribunals, about which I was previously very skeptical.

We shall see how the ruling turns out since this particular ruling cannot be appealed, although one suspects that all kinds of technical hurdles will be arranged for its progress, including possibly changing the judge.

We do not want violence after elections, so the absence of violence should NOT be held up as an indicator of the acceptance of a rigged vote. We do not want a coup after elections; the absence of that either should not be an indication of tolerance for massive rigging. What we want is a Third Way to Election Results Objections in Nigeria - that is investigation of rigging claims either by INEC and/or Election Tribunals - to aid us as we trudge along our "rickety bridge towards our democratic Valhalla."

The best that we all can do is to help this Third Way along.

Best wishes always.

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