INEC and the end of Nigeria’s democracy (1)

How a nation’s electoral body plays with constitutional crisis

With the rash of protests that have greeted the draconian and militaristic purported deregistration of some political parties in Nigeria, I believe it is high time to alert the INEC and every right-thinking Nigerian that there is a possibility of a constitutional crisis brewing from the act of recklessness and impunity. It is trite to mention that the Buhari administration has put itself out to the world and is now being questioned on several fronts locally and internationally for its attempt to clamp down on dissenting voices, muzzle social media, proposing death by hanging for ‘fake news and hate speech’, and now what is being interpreted as the wholesale closure of the political space against the voices of young people and alternative political parties. It cannot be overemphasized that plurality in the political space is a necessary cornerstone of democracies and every country worth its name should allow the participation of multiple parties by setting clear, attainable, reasonable, equitable and logical benchmarks for participation in that space, underpinned by a respectable communication strategy.

My concern presently is that I can see INEC’s ill-informed unilateral action leading to a constitutional crisis and a stonewalling of Nigeria’s democracy. If it does not happen immediately, it surely will, especially if and when strongman Buhari leaves the scene. In short, Nigeria may not be able to conduct elections again. INEC and the government(s) that sponsor(s) it may as well continue to bully the space and railroad those they see as small political players. As usual, the electoral regulator may ignore court judgments and processes. INEC may, just like we have seen with some other government institutions and functionaries, continue to ridicule the judiciary, but one day their cups will be full and Nigeria will find itself in a political and democratic cul de sac.

This recent action has thrown up the ingredients of a constitutional crisis and it is a wonder if anyone else is following this logically and emotionlessly. For now, INEC and the establishment has been able to corral the opinions of the majority of ordinary Nigerians behind its illegal, hurried and undemocratic decision, and as usual, some of the ‘lucky’ political parties are hoping to make short term gains but it is only a matter of time before some of the rash of legal cases begin to scale through, stopping the entire electoral process and thus Nigeria’s democracy right in its tracks. I will explain how shortly. In my view INEC has crossed the Rubicon, shot itself in the foot and exposed its ugly underbelly. Some of the young parties and players will assume the position of the biblical David and who knows when the finely honed beach pebble will pierce the forehead of INEC’s Goliath; after all Goliaths are known to be bulky, sluggish, clumsy, slow, unorganized, uncoordinated and wont to deploy the fear factor while bullying their ways to infamy.

Here are the reasons:

1.  The results of 2019 elections upon which INEC based its decisions has not been officially released anywhere. The results upon which people were declared as winners do no tally nationwide and makes no sense in many instances. There is therefore no empirical basis that is evident to all, to show the world that indeed all the ‘deregistered’ parties did not meet the criteria in all the elections conducted SO FAR. INEC is NOT ready to release these results as a result of a myriad of inconsistencies which brings its credibility, believability and efficiency into serious question.

2.  The election upon which INEC has based its decision was widely discredited by every external and most local observers and the international community. It may have been better to conduct a cleaner election that doesn’t impugn the integrity of the so called umpire before taking such a decision as this. I view this action as plain bullying.

3. As has become obvious in the cases of at least KOWA Party and PPA, INEC seems not be keeping accurate records. INEC is unaware that some parties had met the requirements set by the constitution in times past or even in 2019. Perhaps they have now interpreted the law as starting from 2018 but the supreme court must interpret the intent of that constitutional amendment.

4. There are challenges around whether results obtained by candidates who have now been removed by the Supreme Court, should count as valid to qualify a political party as legitimate under the new amendment, even after those results have been proven to be fraudulently obtained by the courts.

5. There will be multiple court cases and class actions around this decision at national and subnational levels such that at any moment, court judgments will come up that invalidate elections, or stops them from holding in the first place. This will start with upcoming local government elections in some states, as well as the two upcoming guber elections. No party should be excluded based on fuzzy, opaque reasons by INEC. Total transparency around this action is required and must be obtained.

6. A long, drawn-out constitutional case will ensue in general, towards the interpretation of the amendment that INEC has relied on. Though it may take time, but a verdict may likely be obtained, that overturns INEC decision based on constitutional interpretation. That could torpedo the 2023 elections and even do more damage.

7. The questions of electoral law amendments (towards e-voting and e-transmission of results) is exhumed all over. These are issues that INEC has tried to avoid over time. The imperative is enhanced now, because INEC has based a decision on an election that is widely known, and pronounced, to be totally flawed. The use of card-readers was jettisoned in the 2019 elections in many areas and it needs to be determined whether this is a breach of process or not. This action calls for a total review of the 2019 elections in order to prevent a miscarriage of justice.

8. INEC officials who have been going around denigrating and eroding the good will of young, licensed parties as ‘commercial’, ‘unlikely-to-survive’, ‘unlikely-to-win-elections’ or ‘without structure’ etc, need to be brought into account to defend their statements and explain why they have done violence to these parties. INEC needs to learn serious lessons around the management of its most important stakeholder – political parties – and lessons need to be learnt for the future.

9. In considering the letter of the law, as contained in the constitutional amendment that INEC has relied on, it is evident that INEC should wait for ALL elections to be conducted at every level in the nation (it doesn’t matter who is to conduct such elections) before taking the decision that it has preemptively and unjustly taken. INEC has to explain the reason why it breached a clear constitutional provision and also account for the unending damage to the nation’s electoral wellbeing that has fallen out from its action.

10. There are at least two states that are yet to conduct their elections (Ondo and Edo States are upcoming this year). The constitutional amendment is clear that all state elections must be conducted. It is impossible to known if any of the parties so ‘deregistered’ will be able to pull the required numbers in any of these states.

11. Now that INEC has damaged the franchises of these parties, it may be impossible for them to gain credibility and achieve the required numbers even when reinstated. INEC has to pay for damages and account fully for its reckless action and statements.