Yakubu...lessons from Rivers are a legion

Assuming office at a time two major governorship elections – Kogi and Bayelsa States – were in the works, the new chairman of the Independent National Electoral Commission, Professor Mahmoud Yakubu, had quite a challenging start, writes Bukola Ojeme

The new chairman of the Independent National Electoral Commission (INEC), Professor Mahmoud Yakubu, assumed office, few weeks to the Kogi and Bayelsa States’ governorship elections. Prof. Yakubu alongside the newly sworn in members of the Commission, therefore had little time to catch their breath before swinging into action.

Prof. Yakubu was sworn in on Monday, November 9, 2015, by President Muhammadu Buhari, GCFR, alongside other new and re-appointed National Commissioners namely, the then Acting Chairperson, Mrs. Amina Zakari (Jigawa) North West; Dr Anthonia Taiye Okoosi (Kogi) North Central; Alhaji Baba Shettima Arfo (Borno) North East; Dr Mohammed Mustafa Lecky (Edo) South/South; and Mr. Soyebi Adedeji Solomon (Ogun) South-west, who returned as National Commissioner.

Unlike most political appointees, who in the typical Nigerian fashion, spend time adulating in new appointments, inundated with congratulatory messages from well-wishers, contractors and foes alike, new members of the Commission, without a doubt knew theirs was a “thankless job”, where long held relationships are tested and sometimes torn asunder.

Under the watch of Prof. Yakubu, Kogi governorship election held on November 21, and finally concluded on December 5, 2015, after supplementary elections in 91 polling units across the state. The Bayelsa governorship election which took place on December 5 was declared inconclusive because election in Southern Ijaw Local Government Area was cancelled. A supplementary election was conducted on the 9th January, 2016.

Perhaps, what may not have been envisaged, even by the Chairman and his colleagues, besides the need to hit the ground running, were the challenges thrown up by the elections in the two states. Preparations and deployments for both elections particularly that of Kogi, were seamless, with no noticeable hitch whatsoever.

It was therefore a matter of routine for the new chairman and his team to go to Kogi State for the Stakeholders’ meeting, an important routine for state elections, where the elections are staggered as in the case of Kogi and Bayelsa. The meeting also went well enough, without any hint or foretaste of what would later turn out to be one of the most complex constitutional logjams, to confront the Commission, nay Nigeria’s jurisprudence in election time.
The two leading candidates and their supporters, in the view of many, at least exhibited the required level of comportment and decorum, in the run up to election day, given the circumstances of deep seated rivalry between them and their parties, as well as the usual variables associated with the contest for political power in Nigeria.

Quite expectedly, the Kogi election appeared headed for a quick and amicable conclusion, on the beginning of election, until the election was declared inclusive by the State Returning Officer, Prof. Emmanuel Kucha (Vice-Chancellor of the University of Agriculture, Makurdi), after collation spilled into the following day, which in itself is not entirely new in the process of electioneering in Nigeria, particularly in the last decade.

It was therefore not entirely surprising that, a supplementary election, in-line with section 153 of the Electoral Act 2010 (as amended) which empowers INEC to make Guidelines, Regulations, to aid its work, was ordered by the Returning Officer, acting on behalf of the Commission. Section 153 of the Electoral Act 2010 (as amended) in support of the above provides that, “The Commission may subject to the provisions of this Act, issue regulations, guidelines, or manuals for the purpose of giving effect to the provisions of this Act and for its administration thereof”.

The Kogi election was declared inconclusive because the total number of registered voters in units, where the results were cancelled was sufficient to cause a change in the outcome of the election. Indeed, this situation would have been completely under the grasp and understanding of the new chairman, moreso with the 2015 General Election Manual as a guide.

The Returning Officer therefore acted in conformity with the provisions of the INEC Manual for Election Officials 2015 (Updated, page 62), which provides that, “Where the margin of win between the two leading candidates is not in excess of the total number of registered voters of the Polling Unit(s) cancelled or not held, decline to make return until another poll has taken place in the affected Polling Unit(s) and the results incorporated into a new form EC8D and subsequently recorded into form EC.8E for Declaration and Return”.

For many watchers of the political process, particularly pundits, who interpret every action of the Commission, rightly or wrongly, the order for supplementary election therefore sat well with many, including the gladiators in the Kogi governorship election. Barely, 24 hours after declaring the election inconclusive, one of the candidates, Alhaji Abubakar Audu of the All Progressives Congress (APC) was reported to have died of undisclosed ailment, which effectively brought the proposed supplementary election into the arena of legal shadow boxing.

Of course, while legal pundits and the not-so-informed went into frenzy, trying to unravel what seemingly looked like a legal cull de sac for the midwives of the process, the commission kept its head and began a diligent search for an acceptable solution both before the law and political stakeholders, majority of whom had taken divergent views.

Matters became more complex, when gladiators in the process, all sought to be declared winners or inheritors of the vote cast in favour of the party of the deceased candidate. Days to the schedule supplementary election, the legal fireworks peaked, with sections 181 of the Constitution as well as 36 of the Electoral Act 2010 (ss amended) becoming reference points of law, upon which the arguments on both divides flowed or ebbed.

It would indeed amount to stating the obvious, to say that, the new Commission did not anticipate what occurred, in the unfortunate passing on of one of the candidates, in the middle of an election process, more so a candidate, whose party was leading the already collated results by some margin.

The matter became more heated, in the light of the absence of clear points or provisions of law expressly addressing the issue at hand. Indeed, neither the Constitution nor the Electoral Act 2010 (as amended) provides for a clear path of where to go in the event of such occurrence.

It is therefore given, and indeed incontrovertibly so, that what occurred on November 22, 2015, while waiting for the schedule supplementary election, may have indeed caused the commission to lose some sleep, if not for nothing, thinking a way out of what appeared at the time to be a legal del de sac. Legal opinion became sharply divided in the days before the schedule supplementary election, hinged mainly on the applicability or otherwise of sections 181 of the Constitution as well as 36 of the Electoral Act 2010 (as amended).

Section 181 (sub) 2 of the 1999 Constitution provides that, “If a person duly elected as governor dies before taking and subscribing the Oath of Allegiance and Oath of office, or is unable for any reason whatsoever to be sworn in, the person elected with him as Deputy Governor shall be sworn in as Governor and he shall nominate a new Deputy Governor who shall be appointed by the Governor with the approval of a simple majority of the House of Assembly”.

Section 36 of the Electoral Act 2010 (as amended) states that, “If after the time for delivery of nomination paper and before the commencement of the poll, a nominated candidate dies, the chief national electoral commissioner shall, being satisfied of the fact of the death countermand the poll in which the deceased candidate was to participate and the commission shall appoint some other convenient date for the election, within 14 days.”
Perhaps anxious not to be caught in further controversies of not acting before the schedule date of the supplementary election, the commission intensified efforts to explore its internal processes with a view to finding a path out of the seeming logjam, while the political and cyber space, as well as the media became heated with all manner of debates.

While many canvassed the Doctrine of Necessity, as had been invoked in the recent past, others insisted on strict adherence to the letters and spirit of law, in which both constitutional provisions as well as the Electoral Act, completely failed to contemplate the scenario, the commission and the political process had to grapple with.
In the midst of the legal fireworks, coupled with heated national debate on the Kogi scenario, the Prof. Yakubu-led commission evidently rose above the fray, after due consideration, allowed the APC to fill the vacancy created by the unfortunate passing on of its governorship candidate.

According to the statement dated November 24th, 2015 and signed by the Commission Secretary, “The Independent National Electoral Commission conducted Governorship Election in Kogi State on 21st November 2015, which was declared inconclusive. On the 23rd November 2015, the All Progressives Congress (APC) notified the Commission of the death of the governorship candidate in the election, Alhaji Abubakar Audu. The Commission has, after due consideration of the circumstances, decided as follows;

(i)To conclude the process by conducting election in the 91 affected Polling Units as announced by the Returning Officer;

(ii)To allow the All Progressives Congress to fill the vacancy created by the death of its candidate;

(iii)To conduct the supplementary election on 5th December, 2015.

Accordingly, notice is hereby given to all the 22 political parties participating in the Kogi Governorship Election that supplementary election in the 91 affected Polling Units shall hold”.

If the announcement and indeed the position of the commission was expected to rest the debate on the appropriate course of action, under the circumstances, it rather added spice to the debate, with the political space choked with diverse legal opinions, both informed and uninformed.

While many insisted on the non-applicability of the provisions of law as contemplated by both the Constitution and the Electoral Act, not a few actually believed that INEC erred in law by allowing APC to fill the vacancy created by the unfortunate demise of its standard bearer.

The decision of the court to dismiss requests by both the APC running mate, Hon. James Faleke as well as Peoples Democratic Party governorship candidate, Captain Idris Wada, to be declared rightful winner of the elections, no doubt thickened the legal brawl brought forth by the situation, not entirely contemplated by the laws governing elections in Nigeria.

With the benefit of hindsight, the actions and inactions of key actors in the scenario to the culmination of the supplementary election will for sometime become a subject of jurisprudential discuss. Indeed, it is even safe to hazard a guess that, in the not too distant future, the courts will be making some very profound declarations concerning, who did what, rightly or wrongly.

Such questions as to the legal implications of the decision of the commission to invite the APC to fill the vacancy created by the demise of its candidate will be a focal point of interest at some point in the legal fireworks that may ensue.

However, beyond the legalese of how the commission responded to the situation, it is perhaps noteworthy that the commission, acted in good time, rather than wring its hand in frustration, while waiting for the matter to resolve itself.

For those with eyes on history, it bears telling that, at any critical moment in the history of a nation such as the commission had to deal with would have been worse, if the supplementary had not taken place. This scenario would have played into the hands of those, who did not want the supplementary to hold, but thankfully, the court ruled otherwise.

For whatever legal or ethical considerations that gave rise to the decision of the commission, it is equally important to stress that, the response of the commission’s leadership was not only swift but certainly forward-looking, knowing full well that issues arising from the election would be trashed out at the Tribunal if the need arises.

What is not in doubt, however, is that a pronouncement of the Supreme Court or an amendment of the Constitution or the Electoral Act, will hopefully address once and for all, the obvious gaps brought to the fore by the unfortunate demise of the governorship candidate of the APC, in the course of the just concluded Kogi governorship election.

For the Bayelsa governorship election, where preparations and deployments also conformed to standards, that has become synonymous with the commission’s election cycle activities. Security challenges appear to be the bane of its smooth out come. The immediate outcome of the security challenges that bedeviled the conduct of the governorship election in Bayelsa was the cancellation and rescheduling of election in Southern Ijaw Local Government Area for 9th January, 2016.

Unlike the Kogi governorship elections, the circumstances of the Bayelsa governorship election cannot by any stretch of imagination be blamed on the commission, going by the apparent misconduct of the supporters of the political gladiators in the contest.

For watchers of the Bayelsa election process, the resort to wide spread ballot box snatching and associated violence generally made the election environment unsafe and any result declared thereof will be unreliable and unacceptable in the affected local government.

Given the new chairman’s teaching background in security and defence studies, it is indeed expected that the integrity of the security of election environment, as well as closely related issues will be of paramount interest to him. It was not therefore entirely surprising that he met with security chiefs, including the Inspector General of Police, under the aegis of the Inter-Agency Consultative Committee on Election Security (ICCES) to firm up strategies for securing both Kogi and Bayelsa elections.

The security challenges experienced in the Bayelsa elections could not therefore be attributed to lack of planning as some critics would want the world to believe, more so when issues of security and prosecution of electoral offenders still remain under the purview of the various security agencies as provided for by law. Critics have been quick also to unfairly throw stones at the commission for the failure of the Smart Card Reader to fully function in a few polling units, including those of former President Goodluck Jonathan.

It is on record that both local and international stakeholders in the nation’s electoral process had acknowledged the introduction of the Smart Card Reader as a game changer in the series of innovation that made the 2015 general election the best in the history of balloting in Nigeria.

It is however unexpected that, a new technology such as the Smart Card Reader would not have teething problems in its deployment and usage. It is therefore patently unfair to accuse the commission of ill-preparedness in the event of the failure of the Smart Card Readers in isolated polling units, which numbers could not significantly impact the outcome of the elections, as in the case of the Bayelsa governorship election.

As explained by National Commissioner, Dr Mustapha Mohammed Lecky in Yenogoa, in the course of the election, the Commission prepared for the event of malfunctioning SCRs, by providing for enough back-ups. For a Commission that had to conduct two keenly contested elections barely few weeks after coming into office, and given the manner it rose up to the challenges that accompanied those elections, it is clearly a testament to the capacity of the commission under the leadership of Prof. Mahmoud Yakubu to operate under pressure.

-Ojeme is Head of Department, Voter Education, Publicity, Gender, Civil Society Organisation Liaison of INEC, Cross River State