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Conducting Elections During a Pandemic
This interesting article by Festus Okoye recounts how the onset of the Covid-19 Pandemic in 2020 created challenges for INEC, vis-a-vis the Edo and Ondo Governorship elections which could not be postponed because of the mandatory provisions of the Constitution and the Electoral Act, even in the face of the preventive protocols like social distancing implemented by Government. INEC however, was able to successfully wade through uncharted waters on its own, without any precedents to follow
Conducting elections during a pandemic or under the shadow of a pandemic, is not a tea party. It becomes difficult in a void and speculative environment, with little or no precedent to draw from. It becomes even more difficult when the virus known as Covid-19 cannot be seen, and seems far removed from the understanding of the people. Even those with medical knowledge have also struggled to explain its characteristics, complexity, transmission pattern, symptoms and treatment regimen. Most startling was the fact that advanced countries were shutting down, and governments in different parts of the world imposed strict restrictions on movement, transportation, social and economic life. People in advanced countries fell ill, the hospitals struggled to cope with the influx of patients, isolation centres sprang up and people were dying. Fear, anxiety and trepidation took over, and citizens of different countries who were in Nigeria left in droves and in confusion. But, still, in the midst of this hullabaloo, it appeared that the virus was alien to Nigeria, and the average Nigerian thought that this challenge was reserved for the high and the mighty. In other words, at inception, Nigerians felt far removed from the virus.
As an election management body, the Independent National Election Commission (INEC) conducted the 2019 general elections on the 23rd day of February and 9th day of March, 2019, respectively. As at January 2020, the Commission was still grappling with litigation arising from the conduct of the said elections, and the issue of a pandemic was far removed from the electoral lexicon of Nigeria. Between the end of the elections and February 2020, a few legislative vacancies had occurred, but they did not pose a fundamental urgency and the Commission had enough time to fix dates for their conduct and or postpone them to a later date.
However, two end-of-tenure elections were due in 2020, and on the 6th day of February, 2020, the Commission released the Time Table and Schedule of Activities for the conduct of the Edo and Ondo State end of tenure Governorship elections. By constitutional and statutory stipulations, the tenure of the Governor of Edo State was to expire on the 11th day of November, 2020. Pursuant to the provisions of Section 178(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the earliest date for election into the office of Governor, Edo State was 15th day of June, 2020 and the latest date for the election, 13th day of October, 2020.
In the same vein, the tenure of the Governor of Ondo State was to expire on 23rd day of February, 2021, and pursuant to Section 178(1) & (2) of the Constitution and Section 25(7) and (8) of the Electoral Act, 2010 (as amended), the earliest date for the election into the office of the Governor, Ondo State, was the 27th day of September, 2020 and the latest date, 25th day of January, 2021.
It is worthy of note that, by virtue of the provisions of Section 178(2) of the Constitution and Section 25(8) of the Electoral Act, Election into the office of a State Governor shall hold not earlier than 150 days and not later than 30 days, before the expiration of the term of office of the last holder of the office.
Navigating the electoral landscape in a pandemic would have been easy, if some members of the electoral management body had experience in doing so or had lived under a pandemic, or had experiences or precedent to draw from. Unfortunately, only the history books give a clue about what happened during the 1918 global pandemic, that is, the Spanish Flu. Sadly, the pandemic drew closer and closer and the Presidential Task Force on Covid-19 and the Nigeria Centre for Disease Control (NCDC) issued guidelines and protocols on pharmaceutical and non-pharmaceutical interventions, to contain the pandemic.
On the 23rd day of March 2020, the Commission issued a statement and contended that in view of the Coronavirus Pandemic and the preventive and containment measures put in place by the Federal and State Governments and in line with the advisory on social distancing from the World Health Organisation (WHO) and the NCDC, effective from Tuesday 24th March 2020, all regular and non-essential activities were to be suspended in its headquarters and offices nation-wide for 14 days in the first instance. Based on these, the Commission suspended the regular quarterly meetings with Stakeholders, namely: Political Parties, Civil Society Organisations, the Media, Security Agencies and all other meetings including the monitoring of the conventions, congresses, conferences or meetings of political parties. The Commission made it clear that, the new measures taken would not affect the activities for Edo and Ondo Governorship elections scheduled for 19th September and 10th October 2020 respectively.
The virus continued to spread, spreading fear, panic and anxiety everywhere. In Nigeria, various State Governments announced measures to contain the virus including but not limited to lockdowns, curfews and the establishment of isolation centres and the distribution of palliatives. Clearly, the world was embroiled in an existential war, and survival became the paramount issue. The poorest of the poor that make a daily living through menial jobs, stayed at home virtually hungry. Traders could not market their wares. Persons who travelled for a variety of reasons were stranded wherever they were, on account of the travel restrictions.
Challenge faced by INEC
Amidst all this, the Commission faced a different kind of challenge. Elections and the conduct of elections were far removed from the immediate concerns of the people, and even the Government did not see electoral staff as persons providing essential service. Different countries including the advanced ones were postponing and or had postponed their elections, and the Commission was expected to follow suit. It was therefore, unthinkable and absurd for the Commission to proceed with two Governorship elections when more advanced countries with robust and advanced health care and electoral systems postponed and or cancelled their elections. It became clear that the Commission had a herculean task convincing Nigerians, that the two end of tenure elections must proceed in the unchartered terrain of a global pandemic.
These were fundamental and legitimate concerns, and the Commission duly reflected on them and decided to be upfront with information relating to the two end of tenure Governorship elections. The Commission also decided to proactively study the pattern of the virus, and how it affected the conduct of elections in other countries. Unfortunately, there was little or no precedent to draw from. The Commission decided to look inwards and design its own roadmap on conducting elections in a pandemic, bearing in mind our peculiar challenges and circumstances. Part of the challenge is embedded in the Constitution which is the fundamental law of the land, and the second challenge revolved around the scepticism and perception relating to the existence or otherwise of the virus and the mass gatherings that will be occasioned by rallies, campaigns and the elections itself.
Section 178(2) of the Constitution and Section 25(8) of the Electoral Act provide that election into the office of a State Governor shall hold not earlier than 150 days and not later days than 30 days before the expiration of the term of office of the last holder of the office. What does this translate to in practical terms? Governors in Nigeria are elected for a four-year period, and thereafter new elections are held and they must vacate office at the expiration of their tenure. To prevent discretionary manipulation of the timeline for the conduct of the elections, the lawmakers circumscribed the timeframe for the conduct of the elections. In the case of Shettima & Anor v Goni & Ors (2011) LPELR-417(SC), the Supreme Court of Nigeria made it clear that the timelines in the provision are mandatory and not permissive, as they admit of no discretion.
Furthermore, in the case of Abubakar & Ors v Nasamu & Ors (2012) LPELR-7826 (SC) the Hon. Justice Walter Samuel Nkanu Onnoghen, J.S.C made it clear that: “It is settled law that the time fixed by the Constitution, which is the fundamental or supreme law of the land, cannot be altered, extended, expanded, elongated etc by any court in the purported exercise of a discretion to that effect”. Since the dates in Section 178 of the Constitution and Section 25 of the Electoral Act are cast in stone, could the electoral management body proceed to reschedule, postpone or cancel the elections without doing fundamental damage to the spirit and letter of the Constitution?
The first option available to the Commission was to proceed with the election and provide a clear framework for so doing, and convince the Nigerian people of its capacity to do so. Unfortunately, the pandemic engendered fear in the people, and some Nigerians could hardly put food on the table considering the measures in place to contain it. In the existential struggle, elections and the electoral process does not really and fundamentally count.
The second option was to postpone the election and wait for the pandemic to abate and or be contained, before proceeding with the conduct of the election. In this, there was no timeline on when the virus would be contained and a vaccine developed. More fundamentally, in postponing the election the Commission would have to act within the ambit of its powers in the Constitution, else the country could slip into a constitutional crisis.
The third option was to utilise Section 191 of the Constitution that allows the Speaker of the State Assembly to assume the office of the Governor, when the office of the Governor and Deputy are vacant. The challenge here is that in such circumstances, the Speaker of the State Assembly shall hold office for the unexpired term of the last holder of the office. This in the main created its own constitutional crisis, and would leave a dangerous vacuum in the electoral and democratic process.
The fourth option was recourse to Section 180(3) of the Constitution that provides that, if the Federation is at war in which the territory of Nigeria is physically involved and the President considers that it is not practicable to hold elections, the National Assembly may by resolution extend the period of four years mentioned from time to time, but no such extension shall exceed a period of six months at any one time. The challenge here is whether the Federation can be said to be at war, and whether the pandemic could be be classified as one.
The fifth option was for the Commission to wait and have the tenure of the Governors lapse, and then allow the President to activate Section 305 of the Constitution and declare a State of Emergency in Nigeria, and the Proclamation would give details of the Emergency.
On the basis of these challenges, the Commission under the leadership of Professor Mahmood Yakubu rallied National Commissioners and the management staff to design Electoral Continuity Plan (ECP) to surmount Covid-19 challenges and avoid constitutional crisis that may likely erupt with the postponement of constitutionally circumscribed end of tenure governorship election. The Commission activated its zoom platforms and continued nonphysical meetings with National Commissioners, Resident Electoral Commissioners, Directors and Heads of Departments.
INEC’s Policy on Conducting Elections in a Pandemic
On the 21 day of May 2020 the Commission released its Policy on Conducting Elections in the Context of a Pandemic and stated that the “Covid-19 pandemic has had an extensive impact on the electoral process in Nigeria. Not only has it led to far-reaching disruptions in the electoral system, it has also specifically led to the postponement of elections and created uncertainties about scheduled ones. The Commission, cognisant of the profound impact of the pandemic on the electoral process, extensively deliberated on how best to respond to the impact of the pandemic on election administration. The situation was made worse by the global economic impact of the pandemic and its knock-on effect on the Nigerian economy, which had seen a decline in funding for government activities.
Expectedly, this trend was also going to affect the work of the Commission. Conducting elections in a pandemic such as Covid-19, was yet uncharted waters. Only very few jurisdictions had any experience with this. That notwithstanding, the Commission was committed to conducting all elections that were due within the extant legal framework. However, in so doing, it would put a premium on public safety and mitigation of health risks from Covid-19. Citizens must be assured that they will be safe while participating as voters, candidates and officials. The Commission remained committed to raising public confidence in the electoral process in spite of the challenges posed by the pandemic, and to regularly communicate its actions and challenges to the public” .
As part of its overall response, the Commission put in place a two-tier queuing system in the polling units, made provision for pharmaceutical interventions at the polling units and collation centres, the observance of physical distancing and compulsory wearing of face masks or face covering. It electronically recruited its ad-hoc staff and other categories of election staff, and used physical and nonphysical means in training them. It designed a framework of reduction of the number of passengers to be carried by buses and boats, that will ensure physical distancing in transportation among other measures.
On the 9th day of June, 2020, the Commission released the First Supplementary to Regulations and Guidelines for Conduct of Elections. It amended the Regulations and Guidelines for the Conduct of Elections issued by the Commission on 12th January, 2019. The Commission also released Supplementary Regulations and Guidelines for Activities of Political Parties, as well as Supplementary Guidelines for Election Observation. The Commission also developed, designed and distributed “Voting in Safety” Voters Code of Conduct (VCC) for Elections during the Covid-19 Pandemic.
The processes and mechanics of implementing these polices, appeared problematic and challenging. The Political Parties found it difficult and sometimes deliberately subverted the health protocols in their rallies and campaigns, and this heightened the anxiety of infection. The flouting of the guidelines and protocols also gave the impression that the pandemic was not real and/or that in political matters, a pandemic takes a back stage and power equation becomes the central object.
The Commission faced the challenge of another uncharted territory. In the midst of dwindling resources available to the Commission, it added the burden and responsibility of providing pharmaceutical interventions to its ad-hoc staff, the voters and other categories of electoral workers, and this increased the cost of conducting elections. It procured these items, and the Presidential Task Force on Covid-19 assisted with some quantity of infrared thermometers.
In some States, those wearing face masks and observing the NCDC protocols were seen as the suspects or carriers who must be avoided. In some of the States and communities, the people continued as if the pandemic did not exist and or did not believe that a pandemic was in Nigeria, and the fear of community transmission grew and became a reality. The Commission decided to approach the Presidential Task Force on Covid-19 and NCDC, and they assigned an incident officer to join the Inter Agency Consultative Committee on Election Security to advice the Commission on Covid-19 related matters. The Chairman of the Commission also briefed the nation on the preparation being made by the Commission, in relation to the Edo and Ondo Governorship elections. The Commission also raved up its technological intervention and solutions to electoral matters.
Prelude to Edo and Ondo Elections
As a prelude to the conduct of the Edo and Ondo Governorship elections, the Commission decided to use the Nasarawa Central State Constituency Election on the 8th day of August, 2020 to test run its preparations and logistics for the Edo and Ondo Governorship elections. The Commission learnt valuable lessons from that election, and applied those lessons for the Edo and Ondo Governorship elections. In the State Assembly election most of the voters complied with the Commission’s directive that all voters must wear face masks or face coverings. The Commission provided face masks to its ad-hoc staff, as well as hand sanitisers and disinfectants for cleaning the Smart Card Readers, and deployed infrared thermometers for the polling units and collation centres. Unfortunately, most of the voters had difficulty observing physical distancing, or deliberately flouted physical distancing at the polling units.
The Real Thing!
In the Edo and Ondo Governorship elections, the Commission in collaboration with the Presidential Task Force on Covid-19 deployed infrared thermometers to all the polling units and collation centres. The Commission learning from the Nasarawa Central State Constituency bye-elections deployed on time and took control of the polling units before the arrival of voters, and used ropes and other creative strategies in taking control of the polling units and enforcing social distancing. Most of the voters wore face masks and face coverings, and the Commission made appreciable progress in social distancing.
Going forward, it is imperative to make the polling units accessible to voters, and decongest congested polling units through a threshold of 500 voters per polling unit and a maximum of 750 voters per polling unit. This can be achieved through the conversion of Voting Points and Voting Point Settlements to Polling Units, and taking them close to the voters. The Commission must also accelerate the deepening of and deployment of technology in the electoral process, and reduce to the barest minimum human contact and interface. Early voting by those on essential duty must be explored, and internet based voting options must be accelerated to prevent large gatherings at polling units. The pandemic may not be the only emergency that may face us in future, and based on our experiences, we must make proposals to the National Assembly on responding to future emergencies occasioned by a pandemic and other challenges. More fundamentally, the Commission must remain focused, courageous, firm, forward looking, inclusive and consultative in its approach to elections and emergencies.
Festus Okoye, Lawyer, National Commissioner & Chairman, Information and Voter Education, INEC