Otive Igbuzor lists ways and means to attaining credible elections
It has been recognized all over the world that democracy is the best form of government. Democracy is so important in the world today that it has become the driving force of development making many scholars to draw a nexus between democracy and development. Although different people put emphasis on different issues which they consider to be crucial to democracy, majority of people agree that liberal democracy contains some basic principles which include citizen participation; equality; political tolerance; accountability; transparency; regular, free and fair elections, economic freedom; control of the abuse of power; bill of rights; accepting the result of elections; human rights; multi-party system and the rule of law. However, it has been recognized that liberal democracy is facing a crisis of legitimacy and declining confidence in political leaders and institutions necessitating the need for democratic renewal through increasing citizen participation.[i]
There is no doubt that elections play a vital role in a system of representative democracy. They are the primary mechanism with which to implement the principle of popular sovereignty. Ultimate authority rests with the people and the people delegate this authority to their elected representatives through the electoral process. It is through the exercise of franchise or the right to vote that citizens can perform this role. Unfortunately, from the history of elections in Nigeria from the colonial era till date, there are challenges for free, fair and credible elections and citizens are losing the right to vote or the vote counting towards the final electoral outcome. In many instances, candidates were declared winners without voting through judicialization of the electoral process. In other cases, people who did not stand for elections were declared winners. In the particular case of the 2007 elections in Nigeria, the loss of franchise by citizens was very widespread leading to what has been termed “Direct capture of the peoples’ mandate.”[ii]
In this piece, we examine the prospects for free, fair and credible elections in Nigeria through constitutional alteration. But first, we look at the concepts of constitution, constitutionalism and constitution making. The concepts of constitution, constitutionalism and constitution making have attracted the attention of scholars over the years. Constitution has been defined in various ways. A constitution has been defined as the embodiment of all the political, economic, social, cultural, religious and even historical forces conditioning the perception of a people at any given time and powerful enough to be isolated and accepted as a guide for future action. The constitution is a collection of norms and standards according to which a country is governed. A Constitution has also been defined as the totality of the rules and regulations, both legal and non-legal, which ordain, order, regulate and sustain the government of a given country. Others define a constitution as a set of principles, fundamental rules and practices of government, written and unwritten, which establishes the major organs of government, allocates to them their powers, defines the rights of the citizens and the relations between them and the state. Another popular definition is that which defines a constitution as the basic or fundamental law of the land, which contains the rules, conventions, and other practices by which a society governs itself. According to Justice Albie Sachs of South Africa, a constitution is the autobiography of a nation. A constitution has also been described as a contract, which describes the conditions under which the peoples of a nation co-exist.
From the above definitions, it is clear that a constitution may contain rules about how those who govern are to be selected or changed, how they are to behave in office and the relationship between the organs of government. It also shows the relationship between the government and the citizens and even amongst the citizens. The importance of constitution in a country cannot be overemphasized. As one scholar once noted, the good or bad fortune of a nation depends on three factors: Its constitution, the way the constitution is made to work and the respect it inspires.
Like constitution, constitutionalism has been defined in different ways by different people. According to Ojwang, constitutionalism means government that is subject to restraint, in the interest of the ordinary members of the community; government that is not arbitrary or totalitarian. But to S. A. De Smith, constitutionalism is: the principle that the exercise of political power shall be bound by rules, rules which determine the validity of legislative and executive action by prescribing the procedure according to which it must be performed or by delimiting its permissible content …Constitutionalism becomes a living reality to the extent that these rules curb the arbitrariness of discretion and are in fact observed by the wielders of political power, and to the extent that within the forbidden zones upon which authority may not trespass, there is significant room for the enjoyment of individual liberty.
Constitutionalism has also been defined as adherence to the letter and spirit of the constitution. It upholds the supremacy of the constitution and requires that government officials must obey and operate within the framework of the law. It is important that a country should not only have a good constitution, but that the principles of constitutionalism are adhered to. As Okoth-Ogendo has argued, in Africa, there appears to be a commitment to the idea of constitution, yet at the same time, there is a rejection of the classical notion of constitutionalism. In any case, constitutionalism has to be understood in the context of power relations. Scholars have argued that the pursuit of constitutionalism goes beyond mere constitutional formalities to embrace such aspects as the acceptance, especially by the leaders to be bound by both the letter and spirit of the constitution; consistent constitutional practices especially with regard to the acquisition and retention of state power, and constitutional change; constitutional stability; as well as the substance of respect of human rights and the rule of law- and generally building a constitutional ethic or culture.
It has been posited that there is a new concept of constitutionalism, which should rest on the degree of accountability/responsiveness of the State and the collective rights and freedoms that it guarantees. It has been argued that this new constitutionalism has become an integral part of the African political reform process. According to Ihonvbere, this new trend in constitutionalism has been encouraged by several factors. First, there is an increased support for democratisation and civil society by sub-regional, continental and international organizations, such as the Economic Community of West African states (ECOWAS), the Southern Africa Development Community (SADC), the Organisation of African Unity (OAU) now African Union(AU), the Commonwealth, the European Union (EU) and the United Nations. Second, there is a new acknowledgement all over Africa of the salience of pluralism and its centrality to the democratic process. Third, new coalitions and networks are emerging all over Africa as platforms for training new leaders, demystifying dictatorships, and articulating alternative agendas for democratisation. Furthermore, at the end of the cold war, there are no more superpowers that use all the resources at their disposal to maintain unpopular and illegitimate regimes. Moreover, there appears to be a consensus all over the world that military regimes are not only aberration and unacceptable but must be resisted. About four decades ago, the Assembly of the Heads of State of the OAU decided that they would not admit military rulers in their meetings. The Centre for Democracy and Development aptly captured the new trend when it stated:
“At every level on the continent, the idea has taken root that the Leviathans of Africa must no longer function as ‘virtual democracies’ but must be refashioned to reflect the realities of their multifaceted societies. This has been reflected in the constitutional conferences in Benin, Mali, Togo, Niger, the Democratic Republic of the Congo, and Cameroun in the early 1990s, in the successful constitutional arrangement of South Africa, and in the process-based constitutional commissions in Uganda and Eritrea…Today, the struggle for constitutional reform in Kenya, Tanzania, Zimbabwe and Nigeria typifies the second liberation/independence struggle in the continent. The struggle has been led predominantly by civil society in Africa, since the political parties have proved either incapable or unwilling to push for constitutions that will promote just and equitable societies, being instead distracted by a chance to exercise power”.
Constitution making, according to Issa Shivji, is a process of constructing a political consensus around constitutionalism. But according to Selassie, it is a process that brings people and their governments together to shape their future political life. It is a meeting point between the past, the present and the future.
A peoples’ constitution is a constitution made by the people. The people not only participate in the process of making a peoples’ constitution, but the content reflects the history, wishes and aspirations of the people. There is no doubt that the African people are determined to produce popular constitutions. As Abdul Raheem has pointed out, there are determined political groups, civil society organizations and other stakeholders who have placed constitutional change firmly on the agenda.
Election has been defined as the process of choice agreed upon by a group of people. In other words, election is the process of voting or exercising franchise.Election is crucial because it gives the procedure that allows members of an organization or community to choose representatives who will hold positions of authority within it. In any democratic system, it is crucial that elections be free and fair. Mackenzie (1967) identified four conditions for the conduct of a free and fair election viz: An independent judiciary to interpret the electoral laws; an honest, competent non-partisan electoral body to manage the elections; a developed system of political parties; a general acceptance by the political community of the rules of the game.;
Another scholar Dundas (1994) argued that the assessment of an election as to whether it is free and fair or not can be done by answering the following questions: Is the legal framework adequate to ensure that the organization of free and fair multi-party elections be achieved in a given situation? Has the potential to contribute to the holding of free and fair multi-party elections been reflected in the provisions of the constitution and those of electoral laws? Have the courts been given the fullest possible role in assisting aggrieved persons who complain about failures in the procedures of major election processes? Are the election safeguards satisfactorily balanced with the facilitation measures in place and aimed at delivering high quality election services at cost effective levels?
Over the years, scholars have identified electoral standards which contribute to uniformity, reliability, consistency, accuracy and overall professionalism in elections. These standards include: Constitutional provision that provide the foundation for the key elements of electoral framework including electoral rights and the basic principles of the electoral system; electoral law that guides the conduct of the elections including the powers of the electoral management bodies and governmental bodies; the election administration must demonstrate respect for the law; be non-partisan and neutral; transparent; accurate, professional and competent and must be designed to serve the voters; the electoral system should guarantee political inclusiveness, representation, frequency of elections and fairness in the organization of electoral units; the organization of electoral units is done in such a way as to achieve the objective of according equal weight to each vote to the greatest degree possible to ensure effective representation.
Besides, the legal framework should ensure that all eligible citizens are guaranteed the right to universal and equal suffrage as well as the right to contest elections without any discrimination. The electoral management bodies are established and operate in a manner that ensures the independent and impartial administration of elections. Voters registers are maintained in a manner that is transparent and accurate and protects the rights of qualified citizens to register, and prevents the unlawful or fraudulent registration or removal of persons. All political parties and candidates are able to compete in elections on the basis of equitable treatment. The electoral campaigns are organized in such a way that each political party and candidate enjoys the right to freedom of expression and freedom of association, and has access to the electorate, and that all stakeholders in the election process have an equal chance of success. All political parties and candidates have access to the media owned or controlled by the state and those privately owned and that no unreasonable limitations are placed on the right of political parties and candidates to free expression during election campaigns. All political parties and candidates are equitably treated by legal provisions governing campaign finances and expenditures.
Polling stations are accessible and that there is accurate recording of ballots and that the secrecy of the ballot is guaranteed. All votes are counted and tabulated accurately, equally, fairly and transparently. There are representatives of parties and candidates contesting the election to observe all voting processes. To ensure transparency and to increase credibility, there should be provision for election observers to observe all stages of election process, and there should be compliance with and enforcement of the electoral law.
–––Excerpts from Chief of Staff to the Deputy President of the Senate,
Dr. Igbuzor’s presentation at a symposium organised by NILDS