TheCable

The 2019 elections are almost over, and the ball has been passed to the judiciary. What the Independent National Electoral Commission (INEC)threw to the courts is a curve-ball. It is a ball that challenges the judiciary’s conventional logic and modus operandi. To do justice to all manner of men and women and in all circumstances the judiciary would need to insert itself into politics deeper than conventionally legitimate. All because INEC did not go a good job.

Some people may make excuses for INEC and even assert that the commission has done good enough job, in furtherance of the typical Nigerian malaise: Manage-it-like-that (MILT). But one measure of the quality of electoral management by the commission is the number of complaints filed in electoral tribunals and other courts. If we discount the desperation of politicians in Nigeria and their cynical view about the manipulability of electoral adjudication, we know that the number of electoral cases after each election is a fair measure of its credibility. The 2015 elections were generally adjudged as fair and credible, despite rampant underage voting mainly in northern Nigeria. It witnessed historic low in number of electoral cases. So far, 2019 elections are setting the pace in electoral disputes. Besides, we can only get a preliminary assessment of the incredibility of the 2019 general election by considering the rate of inconclusive election. Inconclusion of elections somehow indicates multiple flaws in the electoral process.

INEC has quickly indicated that it has started a review process to better prepare for the 2023 elections. This sounds too halfhearted and escapist as it is made while INEC was yet to completely resolve some outstanding elections. But we have totake the commission at its words and assist it in carrying out a rewarding post-election reviews by throwing lights on some critical intelligence failures that ruined the 2019 elections.

First failure: INEC failed to act as a regulator

INEC acted more like a transaction manager than a regulator. It focused more on project management and transaction and less on regulating political behavior. By its words and actions, the commission shows that it does not understand that it is primarily a regulator of elections rather than its manager. Yes, the commission is generally referred to as an election management body. But management in this sense is primarily regulatory. The commission’s primary responsibility to regulate elections. To regulate is to change social behavior through applications of rules. Rules are enablers and constraints. They enable desirable actions and constrain undesirable one. Effective regulation requires good knowledge of social pathology and the political economy of political corruption. Electoral violence is a product of institutionalized impunity. The cost-benefit analysis favors electoral violence. INEC should have focused more attention in utilizing its rulemaking powers to reshape the normative and structural landscape of election in Nigeria to entrench more accountability and transparency.

Second failure: INEC failed to ‘legislate’ electronic transmission of results

As INEC improved the technical side of voting desperate politicians took to manipulating election results from polling unit to collection and announcement centers. In the past (particularly under the PDP in 2003 and 2007 elections) politicians just captured result sheets and wrote completely fictitious results even before voters finished accreditation. In one such instances, a set of candidates different from those who stood for election was declared elected in Anambra state. Those days are gone for good. But we are bad to other bad days. We now have other equally nefarious frauds around elections.

Today, politicians with access to security operatives and thugs disrupt elections or more easily rewrite election results after voting and counting at the polling unit. The National Chairman of the All Progressive Congress (APC) admitted that in 2019 elections security forces worked for whoever could pay for their services, not just members of the ruling party. Some of the inconclusive elections are a result of incidents that occur between polling unit and collection centers. With the card reader mechanism INEC has further guaranteed the accuracy of votes. What now remains is that the votes count accurately. This is the reason for electronic transmission that eliminates distortions and interference with votes.

INEC acknowledges the importance of electronic transmission but waited helplessly for an acrimonious National Assembly and disinterested Presidency to finally legislate electronic transmission. President Buhari dashed hope of electronic transmission of results when in the eleventh hour he declined assent to the bill. But INEC could have averted this tragedy if it utilized its rulemaking powers under the constitution and the statute to mandate electronic transmission. INEC does not need any further legislation to incorporate electronic transmission of votes in the 2019 election. The belief that the commission needed a legislative authorization to transition from manual to electronic voting is a fallacy that inhibited innovative leadership.

Section 52 of the Electoral Act, 2015 amended the previous Section 52 (2) to provide that “Voting in an election under this Act shall be in accordance with the procedure determined by the Independent Electoral Commission”.  This amendment rightly puts it on the shoulders of the INEC to determine the procedures for election. This can do through its ordinary rulemaking process without resort to the legislature or the presidency. This amendment is in keeping with legislative tradition that preserves the rulemaking powers of an administrative agency like the INEC. The legislative power of the federation is in the National Assembly by virtue of Section 4 of the Constitution. This power cannot be transferred but can be delegated (A.L.A Schechter Poultry Corp v. United States 295 U.S. 495 (1935). If agency acts within the donation of power by the legislature in the legislation it has acted constitutionally in its rulemaking. It is therefore a regrettable failure of intelligence that INEC missed the opportunity to guarantee the accuracy of election result through electronic transmission apparently because it does not appreciate the extent of its rulemaking powers.

To ensure comprehensive and firm rulemaking authority for INEC, the Constitution excludes its rulemaking powers from control or oversight of the President. In the language of Section 160 of the Constitution as amended in 2010, INEC’s power ‘to make its own rules or otherwise regulate its own procedure shall not be subject to any approval of control of the President”.Nothing else should have stooped INEC from ‘legislating’ electronic transmission of results but the failure of intelligence regarding rulemaking powers of such an independent commission. Electronic transmission of result would have been a game-changer for the credibility of the results of the elections. It would have made the work of electoral tribunals easier. In fact, it would reduce the need to litigate election results.

Third failure: INEC failed to conduct adjudicatory hearings in determining validity of elections

Another important implication of comprehending INEC as a regulatory agency is that it isvested with adjudicatory powers. As an administrative agency INEC exercises quasi-judicial functions. Administrative adjudication relates to the judicial determination of facts relevant to the administration of statutory mandate. The statutory mandate for INEC is the fair and effective management of elections in Nigeria. This power means that INEC could make findings of facts and application of law to administrative facts. Provided that the law establishing the administrative body does not exclude the jurisdiction of the court to review the result and process of administrative adjudication it can validly confer on the administrative body adjudicatory functions. It is clear from the language of the Electoral Act that INEC’s administrative adjudication is reviewable by constitutional courts.

Part of the flaws of 2019 elections, especially the presidential election is how often INEC and its officials skipped opportunity to conduct administrative adjudication to determine conflicting issues in the process of collating and announcing results. The National Chairman of the APC referred to this when he accused INEC of being inconsistent in exercise of discretion. INEC’s Returning Officer’s too many discretionary decisions without due process is inequitable and wrongful. When Osita Chidoka raised the complaints about the results coming in from the states, the INEC Chair should have requested a written petition and adjourned proceedings to enable the board to decide on record. INEC as an administrative adjudicator needs to make fair determinations on the record. It is an abuse or an avoidance of process for the Chair to cavalierly reject the complaints without decision on record.

In administrative law, a distinction is made between ‘adjudicatory facts’ and ‘legislative facts”. As Professor Davis puts it in his magisterial Administrative Law Treatise, when the facts are specific and affect interests of person, then they are adjudicatory facts that must be settled in trial-like form with evidence and opportunity for the other person to challenge the evidence. The proper process INEC should have adopted in those instances of alleged violation of due process or before cancellation of disputed result should have been administrative adjudication. In fact, without resort to administration adjudicatory INEC would be unjust and ineffective in managing general elections.

Fourth failure: INEC should have cancelled results that are fraudulently procured

Tied to administrative agency’s power of adjudication is the power of the commission to interpret its rules. The fundamental rule of administrative law is that the agency has authority to interpret its rules and the court must defer to agency expert interpretation of the rules. One of the tragic aspects of the 2019 elections is the perverse incentives for politicians to fraudulently procured electoral results in spite of the electoral law and expect INEC to do nothing. The notable exception was the case of Rochas Okorocha who INEC refused to give certificate of returns. Some INEC officials and lawyers argue that INEC has no powers to cancel results and that once a declaration has been made fraudulent or otherwise only the court has the powers to act.

This point of views rests on a supposed literal interpretation of Section 68 of the Electoral Act. The Act provides that “the declaration of scores of candidates and the return of a candidate, shall be final subject to review by a tribunal or court in an election petition proceeding under this Act”. This provision is being interpreted to foreclose a review of any sort of fraudulent or illegal declaration. The commission is made a rubberstamp of actions of its agent. Take for instance the case of a candidate who forged INEC election results and before the end of voting bribes the returning officer to declare him the winner. Evidence shows that he came fourth on the vote count and the document he used to declare himself is a forgery. Legal opinion by INEC lawyers requires the commission to grant the offender a certificate of return and leave it to the victim of the fraud to go to court to reverse it.

Admittedly, the jurisprudence of Nigerian courts tends to undermine INEC’s assertion of full regulatory authority. As a regulator, the commission should have to power to review actions of its agents. It is only when it has decided on record that it can be said to have exhausted its decision-making power subject to judicial review. Until then, the commission can review and reverse decisions by its agents, including returning officers.

INEC ought to interpret Section 68 as limited to decision by the presiding officer on the validity of a ballot paper and not to the final declaration that a candidate is elected. This interpretation is enhanced by the marginal note of the section which is about ballot papers. This interpretation makes sense as the Returning Officer is the person who can decided on the validity of a ballot paper and such decision like that of the trial court ought to be respected because he or she is the person who has the proximity to make such determination. The Commission cannot rightly overturn a determination made by a Returning Officer on the validity of a ballot paper because like a Court of Appeal it lacks the proximity to make an accurate finding. But just like a Court of Appeal, it can overrule the Returning Officer on matter of law or procedure.

A core principle of administrative law is that the court defers to the agency on its interpretation and application of statutory law as long it is not unreasonable, illogical and illegal (Chevron v. Natural Resources Defense Council 467 U.S. 837 (1984). INEC is the primary interpreter of the Electoral Act. Its interpretation should be such that enables it to effectively perform its statutory responsibility. Therefore, INEC should cancel results that violate its guidelines. The court should defer to INEC judgement on such issues if it is reasonable, logical and legal within the established principle of judicial review. The shift of perspective required to overcome the incentive to manipulate election is for INEC to exercise jurisdiction to cancel any election that violates its guidelines or result procured by any act of fraud or illegality. The perpetrators of such illegality or fraud should have the onus to go to court to challenge INEC decision. The court should defer to decisions made by INEC if they are reasonable, rational and legal. Deference means that even if the court could have made a different finding of fact, or acted differently, if INEC acted within the law and expressed its mind reasonably, the court should defer and not upset such decision.

There is a high level of failure of institutional intelligence that reinforced the historical flaws of elections in Nigeria. if INEC had corrected some of these failures it could have conducted better elections. Some of these intelligence failures are systemic and relate to the underdevelopment of administrative law and practice in Nigeria. If we fail to understand the quasi-legislative, quasi-judicial functions of INEC as a regulatory agency, we will continue to have flawed election. INEC should shift from a transaction manager to a regulator of elections.