Anti-climax as electoral game-changer? …by Odinkalu, Ilo

ATTAHIRU Jega, the beleaguered Chairperson of Nigeria’s Independent National Electoral Commission (INEC), had the backing of the law to conduct an election without result sheets but chose not to do so because that is wrong. The anti-climax that ensued of Nigeria’s deferred National Assembly vote of April 2, 2011 thus raises the bar for electoral administration and expectation. This could be a defining moment in Nigeria’s democratic evolution. Those who prefer to see it as an excuse to give up on credible elections in Nigeria would do well to recall where the country was before now.

Nigeria has travelled this path before with different outcomes. In the Presidential election of 2007, the law required that ballot papers be serialized. They were not. In Muhammadu Buhari vs. Umaru Musa Yar’Adua, in 2008, the Court of Appeal held that this had no bearing on the validity or veracity of the figures manufactured by the then Independent National Electoral Commission (INEC).

The Supreme Court on appeal, by a narrow majority affirmed this and bizarrely established an extra-terrestrial standard of proof when it held: “[n]on-serialization, if it had benefits and advantages, was not exclusive to the respondents. I do not see any proof by the appellant that the respondents had benefits or advantages over and above the appellant on the alleged non-serialization of the ballot papers. I do not see that the non-serialization favoured the respondents or disfavoured the appellant.”

The effect of this unattainable standard of proof was to set up INEC as both beyond any rules and beyond accountability. If we applied this reasoning, Attahiru Jega and his respective State Resident Electoral Commissioners could easily have gone ahead to conclude the elections on April 2 and announced any results they wished in the absence of result sheets. According to the standards of the Supreme Court, that would have been perfectly legal because no one could possibly show that the absence of result sheets could have “favoured the respondents or disfavoured the appellant.”?

Clearly, non-serialized ballot papers are more damaging to the credibility of the electoral process than absent result sheets. You could arguably write results on any sheet if balloting and counting are both credible. But non-serialized ballot papers invite and guarantee contamination of the ballot. In 2007, however, when the ballot papers were not serialized, INEC announced final results in respect of the Presidential elections within 60 hours of the vote, after only 12 States had been tallied, while the 13th state (Ondo) was being tallied and without having collated 23 States. At that point it was both mathematically and humanly impossible to divine who won or lost or by how much. The results were fake, yet the highest courts in the land affirmed this as lawful.

When he declined to go ahead with the vote on April 2 without the result sheets, therefore, Attahiru Jega drew a line under this convenient and shameful jurisprudence. He had a choice between covering up the inadequacies of INEC and accepting responsibility for them. His decision must have been both chastening and painful. It was certainly embarrassing on an international scale. But it was also an honest and courageous blow against voodoo electoral processes and is cause for cautious optimism.

To be sure, many people now justifiably worry about both the capacity of INEC to organise these elections. At one extreme, some have attacked Attahiru Jega personally even going as far as advocating that he be relieved of his position. This reaction cannot be taken seriously, however, because it is advocacy for electoral meltdown from which there will be no winners. At another extreme, many people hold on to the personal integrity of Attahiru Jega, believing that it would alone guarantee credible elections. Again, this is not realistic: Jega isn’t a magician. He needs the organs of the institution just as the institution benefits from having credible leadership. In between these extremes, there is a mixture of resignation, hope and anxiety. Edo State Governor, Adams Oshiomhole, is not alone in suggesting that the deferral was compelled “by the old elements in INEC to aid and abet rigging.”

The manner of the deferral itself deserves to be followed by a serious inquest. INEC is after all a public institution and its leadership should not be immune from the regular standards of accountability required of public officials and institutions. Responsible officials should be held to account. The internal communication failures that led to this deferral suggest an institution with serious management difficulties. The joke about town is about Jega-Jega elections, a play on a Nigerian colloquialism for dis-organisation.

If there is any joke, however, it should be on the country rather than on its choice of an anointed scape-goat. Only Christmas, New Year and Independence Days compete with the date of inauguration of a new government for significance on Nigeria’s calendar. But unlike the other three which happen annually, Nigeria installs a new government only once every four years. So, when they established a new INEC with a mere 10 months instead of the full 48 to work towards these elections and concluded the applicable laws only three months to the elections, the politicians must have known the score.

This avoidable time constraint entails necessarily that there will be major glitches along the way. In the end, an INEC that can make even humiliating mistakes is better than an infernally crooked one. Politicians, lawyers and judges hoping for the benefit of convenient jurisprudence that has until now nurtured a crooked INEC will have to work harder for, this time, they will not have the assistance of a criminal institution with complicit leadership. That, surely, has to be the message from this anti-climax. If it is, then it already takes us much further than many could have dared to hope in April 2007.

• Odinkalu and Ilo are both lawyers based in Abuja