T HE I MPERATIVE OF R EFORM A S E LECTORAL A C RITICAL E LEMENT OF C ONSTITUTIONAL E NGINEERING OF N R E IGERIA By Prof. Yemi Osinbajo, SAN Paper delivered at the Law Week of the Nigerian Bar Association, Ikeja Branch, April 30 th 2009 .

ELECTORAL REFORM  History of Elections in Nigeria shows that with each successive election, the credibility of the electoral process has been further damaged

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1964  First after departure of British  NPC/NNA  NPC and AKINTOLA’S NNDP to form NNA  Harassment & Detention of opponents  Preventing rallies , etc

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1965  Western Region elections worse than 1964  NNDP now in power perfected rigging  Returning officers deserting posts after accepting nomination papers of government candidates or outrightly refusing to accept nominations  16 NNDP candidates returned unopposed

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1965  Arikpo in his DEVELOPMENT OF MODERN NIGERIA recounted that:  “The most notorious example of this travesty was the case of a man who won the election in one of the Owo constituencies, his NNDP opponent was declared the victor. He thereupon announced that he had (upon deep reflection) decided to join the NNDP. A few days after this announcement, the Electoral Commissioner declared him the successful candidate and quietly dropped his opponent

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1983 

Resurgence of 1964 & 1965 Rigging but mostly ballot dumping and falsification of results

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2003 

Brazen rigging

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INEC’S complicity well established

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Law enforcement/ Military

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2003  In the 2003 Presidential election petition, petitioners averred in their petition that in respect of Akwa Ibom state that :  “At a meeting which took place at the Banquet hall of the Government house in the early hours of April 19 2003 (the day of the presidential elections), officials of the ruling PDP and 36 soldiers from the 6 th motorized battalion Ibagwa, Abak led by the commanding officers, Lt S. A. Sangonuga, thumbprinted the materials, and allocated figures, between the hours of 2.30 and 5.30am on April 19 2003. Team leaders of the group collected N200,000 each from the PDP liason officers in their areas of posting. The Petitioners went on to list the names, ranks, and commission members of the 36 soldiers in their petition. In response, the respondents merely denied the occurrence.

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2007  Worst ever by all independent accounts  Ballot dumping ; multiple thumbprinting  Use of police and army  Multiple thumbprinting found in high percentages accounts

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I NEXPLICABLE DISCREPANCIES BETWEEN VOTES FOR AND P RESIDENTIAL G UBERNATORIAL CANDIDATES DESPITE THE FACT THAT BALLOT PAPERS WERE HANDED TO VOTERS SIMULTANEOUSLY

State Regd. Voters President Governors

Ogun 1,576,875 Ondo 1,504,181 Osun 1,367,627 Kano 4,000,430 Rivers 2,272,238 1,365,367 995,084 783,914 2,339,792 2,171,215 747,296 960,080 801,812 1,734,151 2,111,188 C/ Rivers 1,289,019 1,238,175 Borno 2,156,019 1,336,480 Katsina 2,567,245 1,711,212 1,065,631 817,533 1,721,067

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UWAIS PROPOSALS

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U NBUNDLING OF INEC  Political Parties Registration and regulatory Commission  Electoral Offences Commission  Constituency Delimitation Commission

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INDEPENDENCE OF INEC  NJC to advertise all the positions, shortlist 3 persons for each position  Send nominations to national Council of State who select one from shortlist and forward to Senate for confirmation

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T HE E LECTORAL S YSTEM  First past the Post for 70% Legislative seats     Proportional Representation 30 % Females – 30% of Proportional Representation Persons With Disabilities – 2% of Proportional Representation Political parties that secure at least 2.5% of National Assembly Seats- Cabinet Level

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E FFICIENT E LECTORAL A DMINISTRATION  Design & Handling of Ballot ppaers – security Features  Voting process – Electronic Voting Machines  Accreditation within defined time frame  Voting within defined time frame

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R EFORMS 

Abolition of State Independent Electoral Commissions [SIECS]

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I NDEPENDENT C ANDIDATURE  Constituency based nomination by verifiable signatures of 10 registered voters in each ward in the Constituency  Payment of Deposit which will be refunded if candidate scores at least 10% of valid votes

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E E LECTION PETITION B EFORE C D ISPUTES S WEARING IN O F N EWLY E LECTED O FFICIALS   Need to produce rules and procedures that enhance speedy disposal of election petitions The Law should shift the burden of proof from the petitioners to INEC to show that disputed elections were indeed free and fair and complied with the provisions of the Electoral Act  Rules of evidence should be formulated to achieve substantive justice rather than mere observance of technicalities

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E NSURING THE PETITION C ONCLUSION OF D ISPUTES B EFORE S E LECTION WEARING IN N EWLY E LECTED O FFICIALS O F  Elections to the office of President and Governors should be held at least six months before the expiration of their terms. A maximum of four months should be devoted to hearing petitions by the tribunals and another two months for hearing appeals by the Court of Appeal or Supreme Court.

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E NSURING THE PETITION C ONCLUSION OF D ISPUTES B EFORE S E LECTION WEARING IN N EWLY E LECTED O FFICIALS O F  No executive should be sworn in before the conclusion of the cases against him/her. In the case of legislators, no one should be sworn in before the determination of the case against him/ her  INEC should have no right of appeal

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OTHER R EFORMS  Admissibility of Evidence  Reliance on Forensic Evidence  Voters registration Biometrics  Proof beyond reasonable doubt too high

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