You said INEC under your leadership had conducted 137 polls with a few inconclusive ones and you were wondering why so much noise about the inconclusive ones. You went ahead to trace the history of inconclusive polls and I am wondering whether you are happy that this worrisome tradition continues under your leadership? Secondly, INEC under your leadership found it difficult finding its feet at inception and I am wondering what really are the teething problems that make it sees that you where somewhat not up to the task?
You put it too rather very strongly that are we happy with the traditions of inconclusive elections. Even the Electoral Act ultimately requires the commission to substantially comply with the provision of the act rather than upset it. And I said we conducted about 137 elections; you can do a census of these elections and see how many of them were inconclusive. Take the FCT election for instance, four chairmanship and five councillorship, nine elections were inconclusive. In term of percentage, 13 .2 per cent. Fifty seven elections were conclusive amounting to almost 87 per cent of the elections. On the balance majority of the election were conclusive. Take some of the major elections and these where we have major turn-up take Kogi for instance. I explained the circumstances under which Kogi became inconclusive and the difficulty also in concluding the Kogi election in subsequent ones. Are we proud of it, no, the wish of the commission is that all elections should be conclusive but you know the law envisages that some elections may be inconclusive and provide the way out of the situation in case if it is inconclusive. We have to apply the law, there is no way you can guess any election, you can’t go and be concluding elections on behalf of Nigerians. I don’t think that is the kind of election that we want in this country . You said we couldn’t find our feet at the inception, well I don’t know what you mean exactly by not finding our feet. If you mean that immediately we were sworn in we were confronted with a lot of elections I agree. In my first two weeks in the commission even before we received briefing from the directors, Kogi came and Kogi came with its own peculiar challenges And I don’t think anybody in his good conscience can blame the commission over what happened in Kogi. An act of God compounded the situation that we could have taken care of. And the act of God is not envisage in our laws, there is no guidance under the constitution, no guidance under the law and no guidance under the Electoral Act but we found our way outside the political quagmire. If that is what you mean by not finding our feet that is the explanation but I hope since you said that it was at the inception now we have found our feet and we are standing on our feet.
How would you situate the roles of INEC in the Abia debacle? The role played by INEC raised some concerns and genuine one at that. I have never seen anywhere after elections where governors are handed the certificate of returns immediately. The court said you should issue certificate of returns to a man and within two hours, the man have it, were you really looking forward to that or what happened . And looking at the recent ruling by Court of Appeal, are you proud of the role played by INEC in the issue?
Role of INEC in the Abia debacle given the recent judgement of the Court of Appeal .We believe that the that the responsibility of the commission is to obey court judgment irrespective of how they came and whether we agree or disagree with the judgement. It is not for us sit in judgement. Remember INEC did not nullify any election in this country, the conduct of the election is the responsibility which so many people have their roles to play. Remember in democracy, power does not reside in one place it is not only among the Executive, the Judiciary and the National Assembly but there is also power elsewhere, civil society organizations, and the media for instance and the chairman of the INEC is speaking to you because of the crucial role you are playing and which you will continue to play. So once the court gave a judgment that this is what we should do, we immediately comply. Is there any other way that we could have done it. Where we in a haste? That is why I was unhappy when people were saying why were we in a hurry to issue certificate of return. Before Abia governorship election, there was Enugu House of Representatives election similar to Abia that was the way we did it.
But I am sure you haven’t heard about that one, the only one you heard about is that of Abia because it is a governorship election. However the Court of Appeal, which is a court of superior jurisdiction has adjudicated and confirmed the election of the governor. Once we are served, INEC will comply. Do remember also that whoever is not happy with the judgement of the Court of Appeal has the right to appeal to the Supreme Court. When the Supreme Court make a pronouncement, INEC will obey. But it is not good in this country for court of coordinate jurisdictions to be making some pronouncements that are so contradictory, afterall the issue involved like the case of Abia is an issue of party primary and party’s nomination of candidate And out of 80 elections nullified in 2015, 12 are similar to the Abia. But they came in the midst of elections litigations and they end in the Court of Appeal. And what did we do when a court had disqualifies a candidate in a real election; we insisted that disqualified candidate cannot stand in a rerun election. Secondly his party cannot nominate a candidate to replace him orm her simply because the period for nomination of candidate was over. It was 60 days before the last election, that period lapsed in December 2014. Candidates cannot withdraw because candidates can be withdrawn only 60 days before the election. That date lapsed in January 2015. Some of the persons challenged the decision of the commission and they went to the court of lower jurisdictions, the High Court and the court said that INEC has no power to reject a candidate viably nominated by his or her party. We tested that as far back as in 2009, in the case of Labour Party versus INEC at the Supreme Court and Supreme Court confirmed the position and in favour of INEC and all the cases suffered. They went from the High Court to the Appeal Court and the cases were
determined in favour of the commission. So once a court of competent jurisdiction adjudicates on a matter, it is not left for us to change, we implement. If that has been done in the past, this commission is determined not to do it. And if a court of superior jurisdiction nullifies the judgement of a lower court whatever the decision is, we will abide. I am sure that INEC cannot be accused of being too hasty.
In fact I must tell you that a friend of mine who is a lawyer had the same view about our decision and one day he tells me chairman were you not too hasty in Abia. And I said how we can be accused of being too hasty in obeying court of law. And I said okay we have the crisis in one of the major parties now and I read out the court cases and the conflicting judgments. I said as a lawyer if you are in my position what decision will you take. He said that should be easy give me two days, it is almost two weeks now I am waiting for him. Because we need to take fast decision as incidents unfold it is not easy at all. And we don’t have luxury of procrastinating it, we just take decision and these are not easy decisions. I don’t think any one of us in the commission is happy to immediately withdraw somebody else’s certificate of returns that has been issued and give it to another person. And we are yet to studythe judgement delivered in the case of Abia. I am interested in the judgement to see whether INEC was castigated for taking any hasty decision. It would talk on the judgement; the emphasis was on the judgement. From what I have read so far the emphasis was on the judgement But I have said the text of the judgment should be scanned and send to me and I would be surprised if the judge castigated the commission for obeying court rule. The justices of the Court of Appeal would have acted on the judgement itself on the basis on which INEC acted we will continue to act on good conscience If it happens we will apply what the law says. In no election was INEC a candidate nor INEC has a candidate.
Before you move away from that question, is the place of discretion completely absent in situation like this? Discretion over court judgement? What discretion do you exercise?
The only discretion is whether we are guided by law. For instance, in post election litgations, Part 8 of the Electoral Act provides for 21 days grace within which anybody unhappy with the judgement of the election petition tribunal can go to appeal. But Abia wasn’t a post election issue it was a pre election issue that is why it can go up to the Supreme Court and that is why the Court of Appeal took the decision it took yesterday. Under no circumstances must post election matters dragged, them case would have been over. Remember there was a time frame within which the tribunal must made pronouncement and Court of Appeal as well 60 days and the Supreme Court in the case of governorship and presidential must also make pronouncement. So this was quite a different matter and the law did not allow the commission any discretion. And God forbids, there shouldn’t be a time the commission will choose which judgement to implement and which judgement not to implement. But where courts of coordinate jurisdiction made contradictory pronouncement on the same issue that is where a dilemma for the commission comes in. But we hope that a court of superior jurisdiction will resolve the matter. If a court of superior jurisdiction adjudicate on the matter and make a pronouncement and say INEC ‘when this kind of situation arises this is the way to pursue it, then we will be guided by judicial pronouncement. It becomes precedence. So the judicial system becomes certain for that matter. But as we speak unless there is a stay of execution there is no way we will not implement the judgment. The other danger is that if you don’t, then you would be sanctioned with section 48 as one of the judges was threatening to jail me if I dared go to Port Harcourt to monitor the election.
About two weeks ago, you sent your CPS, Rotimi Oyekanmi to Rivers State to represent you at a function organised by Nigerian Guild of Editors, the governor, Nyesom Wike said his state is peaceful but you are running away from conducting rerun election in that state . What is happening sir?
You know we had a big stakeholders meeting in June and we agreed on the date for election, July but the resolution from that meeting said in the event of unfavourable evidence that date should be reconsidered and you know what happened to the INEC office in Bori, Bokano Local Government , you know what happened. Elections are ultimately conducted by human beings and not conducted by machines . Young people equivalent of your own children or brothers or sisters that have gone through universities and are serving formed the bulk of election staff for INEC and the problem is that if you mobilize for an election and for whatever reason demobilize, it takes time for you to mobilize again But I wouldn’t like to comment further on Rivers matter because as we speak our staff are there reconciling figures from the March 19 elections so that they can fix a date for the conclusion of the elections. You probably look that out of 80 cancelled elections, 37 almost 50 per cent are from Rivers State .It is not the wish of the commission that an important state like Rivers will not have representation in the senate, all the three senatorial seats and majority of seats in the House of Representatives and House of Assembly. INEC cannot be happy with that kind of situation. But elections are conducted by human beings and we must also be assisting in that respect. But I am confident the conditions are conducive for us to go to Rivers , if you notice of late the violence has gone down a bit and the parties are campaigning so we hope that, that understanding will continue until we conclude the elections . We are not happy that an important state like Rivers is without full complement of representation.
I want to refer you to the issue of smart card readers, in the course of the elections and after the elections, your commission was unable to defend the use of card readers in some states despite the specification of your predecessor that
governorship election that did not utilize the use of the card readers would not be deemed acceptable. And despite the regulation by your commission that smart card reader was to be an instrument in the conduct of the governorship election, your lawyers did not defend the position of INEC in the course of the proceedings. Secondly, you said you want to deepen the use of the smart card, you want to deepen technology. I want to know in the light of the judgments how you are reconciling your motives to this your intention.
At what level, at the level of the Supreme Court?
At all levels…
No because you see the election petition tribunal in the case of some states where the card readers wasn’t used or where there was litigation actually nullified he elections. The Court of Appeal agreed with the tribunals it was actually
the Supreme Court that makes a pronouncement. I am not a lawyer but I have
been briefed by lawyers. The issue at the Supreme court was not that the card reader was illegal, it was more or less the emphasis placed on card readers in election without register and that there should be some explicit provision in the Electoral Act for the deployment of card readers. And my attention was drawn to an amendment of the Electoral Act in 2015 specifically signed on 26th March 2015 two days to the last general election. That amendment only came to light after the election. It was in the content of all these issues that somebody drawn my attention to that bill and I said we had rumour after we were sworn in that actually the electoral act was amended but it was not used during the election and it came after the general election.
The question is that your staff who knew of this did not plead it in courts especially in the case of Rivers and Akwa Ibom?
No, I am not sure about our staff knowing about it because the first person to draw my attention to the possible existence of an amended electoral act was someone from the civil society and he was actually one of those that actually worked on the amendment. He said he heard rumour that it was accented to. But it wasn’t obvious to us at all; if we knew we would have used it. But now that there is opportunity, and we are outside the contest of litigation to amend Electoral Act.
I am hopeful and confident and it’s also in our submission in the amendment of the electoral act to the national assembly that some explicit provisions should be made available. But we would like an explicit provision that should mention inclusion of usage of technology. Because if tomorrow you move away from smart card reader and call it something else, someone would not stand up and say that the law specifically said smart card reader, and that INEC cannot just move away from smart card readers but card reader is just a name.
So in the proposed amendment to the Electoral Act , we made a recommendation to the national assembly for that explicit provision. In any case some members of the national assembly have already sponsored private members bills for the amendment of the Electoral Act to accommodate the deployment of technology.
When we are talking of inconclusive elections people say that even your board is inconclusive, that the board of national commissioners is not fully constituted. Is that not hindering you and what effort are you making as the man in charge to do what you are supposed to do?
Let me say this, just by the way of statistics that there are shortfall of six national commissioners and as we speak also there are shortfall of 21 resident electoral commissioners.
In 21 states the tenure of RECs have expired .but you know it is not the responsibility of INEC to constitute itself, there is a constituting authority and I have made adequate recommendations to draw the attention of those that supposed to constitute it and I am confident very soon the national commissioners will be appointed and the Resident Electoral Commissioners.
Yes because we are not facing a general election. It is in this kind of that I have described that we have some latitude to move some of the REC around to strengthen our staff in the state without Resident Electoral Commissioner for election. For instance in Oyo we moved the Resident Electoral Commissioner for Akwa Ibom to take charge of the rerun election and thereafter he would be back to his position.
You put it too rather very strongly that are we happy with the traditions of inconclusive elections. Even the Electoral Act ultimately requires the commission to substantially comply with the provision of the act rather than upset it. And I said we conducted about 137 elections; you can do a census of these elections and see how many of them were inconclusive. Take the FCT election for instance, four chairmanship and five councillorship, nine elections were inconclusive. In term of percentage, 13 .2 per cent. Fifty seven elections were conclusive amounting to almost 87 per cent of the elections. On the balance majority of the election were conclusive. Take some of the major elections and these where we have major turn-up take Kogi for instance. I explained the circumstances under which Kogi became inconclusive and the difficulty also in concluding the Kogi election in subsequent ones. Are we proud of it, no, the wish of the commission is that all elections should be conclusive but you know the law envisages that some elections may be inconclusive and provide the way out of the situation in case if it is inconclusive. We have to apply the law, there is no way you can guess any election, you can’t go and be concluding elections on behalf of Nigerians. I don’t think that is the kind of election that we want in this country . You said we couldn’t find our feet at the inception, well I don’t know what you mean exactly by not finding our feet. If you mean that immediately we were sworn in we were confronted with a lot of elections I agree. In my first two weeks in the commission even before we received briefing from the directors, Kogi came and Kogi came with its own peculiar challenges And I don’t think anybody in his good conscience can blame the commission over what happened in Kogi. An act of God compounded the situation that we could have taken care of. And the act of God is not envisage in our laws, there is no guidance under the constitution, no guidance under the law and no guidance under the Electoral Act but we found our way outside the political quagmire. If that is what you mean by not finding our feet that is the explanation but I hope since you said that it was at the inception now we have found our feet and we are standing on our feet.
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| INEC Chairman, Prof. Mahmood |
How would you situate the roles of INEC in the Abia debacle? The role played by INEC raised some concerns and genuine one at that. I have never seen anywhere after elections where governors are handed the certificate of returns immediately. The court said you should issue certificate of returns to a man and within two hours, the man have it, were you really looking forward to that or what happened . And looking at the recent ruling by Court of Appeal, are you proud of the role played by INEC in the issue?
Role of INEC in the Abia debacle given the recent judgement of the Court of Appeal .We believe that the that the responsibility of the commission is to obey court judgment irrespective of how they came and whether we agree or disagree with the judgement. It is not for us sit in judgement. Remember INEC did not nullify any election in this country, the conduct of the election is the responsibility which so many people have their roles to play. Remember in democracy, power does not reside in one place it is not only among the Executive, the Judiciary and the National Assembly but there is also power elsewhere, civil society organizations, and the media for instance and the chairman of the INEC is speaking to you because of the crucial role you are playing and which you will continue to play. So once the court gave a judgment that this is what we should do, we immediately comply. Is there any other way that we could have done it. Where we in a haste? That is why I was unhappy when people were saying why were we in a hurry to issue certificate of return. Before Abia governorship election, there was Enugu House of Representatives election similar to Abia that was the way we did it.
But I am sure you haven’t heard about that one, the only one you heard about is that of Abia because it is a governorship election. However the Court of Appeal, which is a court of superior jurisdiction has adjudicated and confirmed the election of the governor. Once we are served, INEC will comply. Do remember also that whoever is not happy with the judgement of the Court of Appeal has the right to appeal to the Supreme Court. When the Supreme Court make a pronouncement, INEC will obey. But it is not good in this country for court of coordinate jurisdictions to be making some pronouncements that are so contradictory, afterall the issue involved like the case of Abia is an issue of party primary and party’s nomination of candidate And out of 80 elections nullified in 2015, 12 are similar to the Abia. But they came in the midst of elections litigations and they end in the Court of Appeal. And what did we do when a court had disqualifies a candidate in a real election; we insisted that disqualified candidate cannot stand in a rerun election. Secondly his party cannot nominate a candidate to replace him orm her simply because the period for nomination of candidate was over. It was 60 days before the last election, that period lapsed in December 2014. Candidates cannot withdraw because candidates can be withdrawn only 60 days before the election. That date lapsed in January 2015. Some of the persons challenged the decision of the commission and they went to the court of lower jurisdictions, the High Court and the court said that INEC has no power to reject a candidate viably nominated by his or her party. We tested that as far back as in 2009, in the case of Labour Party versus INEC at the Supreme Court and Supreme Court confirmed the position and in favour of INEC and all the cases suffered. They went from the High Court to the Appeal Court and the cases were
determined in favour of the commission. So once a court of competent jurisdiction adjudicates on a matter, it is not left for us to change, we implement. If that has been done in the past, this commission is determined not to do it. And if a court of superior jurisdiction nullifies the judgement of a lower court whatever the decision is, we will abide. I am sure that INEC cannot be accused of being too hasty.
In fact I must tell you that a friend of mine who is a lawyer had the same view about our decision and one day he tells me chairman were you not too hasty in Abia. And I said how we can be accused of being too hasty in obeying court of law. And I said okay we have the crisis in one of the major parties now and I read out the court cases and the conflicting judgments. I said as a lawyer if you are in my position what decision will you take. He said that should be easy give me two days, it is almost two weeks now I am waiting for him. Because we need to take fast decision as incidents unfold it is not easy at all. And we don’t have luxury of procrastinating it, we just take decision and these are not easy decisions. I don’t think any one of us in the commission is happy to immediately withdraw somebody else’s certificate of returns that has been issued and give it to another person. And we are yet to studythe judgement delivered in the case of Abia. I am interested in the judgement to see whether INEC was castigated for taking any hasty decision. It would talk on the judgement; the emphasis was on the judgement. From what I have read so far the emphasis was on the judgement But I have said the text of the judgment should be scanned and send to me and I would be surprised if the judge castigated the commission for obeying court rule. The justices of the Court of Appeal would have acted on the judgement itself on the basis on which INEC acted we will continue to act on good conscience If it happens we will apply what the law says. In no election was INEC a candidate nor INEC has a candidate.
Before you move away from that question, is the place of discretion completely absent in situation like this? Discretion over court judgement? What discretion do you exercise?
The only discretion is whether we are guided by law. For instance, in post election litgations, Part 8 of the Electoral Act provides for 21 days grace within which anybody unhappy with the judgement of the election petition tribunal can go to appeal. But Abia wasn’t a post election issue it was a pre election issue that is why it can go up to the Supreme Court and that is why the Court of Appeal took the decision it took yesterday. Under no circumstances must post election matters dragged, them case would have been over. Remember there was a time frame within which the tribunal must made pronouncement and Court of Appeal as well 60 days and the Supreme Court in the case of governorship and presidential must also make pronouncement. So this was quite a different matter and the law did not allow the commission any discretion. And God forbids, there shouldn’t be a time the commission will choose which judgement to implement and which judgement not to implement. But where courts of coordinate jurisdiction made contradictory pronouncement on the same issue that is where a dilemma for the commission comes in. But we hope that a court of superior jurisdiction will resolve the matter. If a court of superior jurisdiction adjudicate on the matter and make a pronouncement and say INEC ‘when this kind of situation arises this is the way to pursue it, then we will be guided by judicial pronouncement. It becomes precedence. So the judicial system becomes certain for that matter. But as we speak unless there is a stay of execution there is no way we will not implement the judgment. The other danger is that if you don’t, then you would be sanctioned with section 48 as one of the judges was threatening to jail me if I dared go to Port Harcourt to monitor the election.
About two weeks ago, you sent your CPS, Rotimi Oyekanmi to Rivers State to represent you at a function organised by Nigerian Guild of Editors, the governor, Nyesom Wike said his state is peaceful but you are running away from conducting rerun election in that state . What is happening sir?
You know we had a big stakeholders meeting in June and we agreed on the date for election, July but the resolution from that meeting said in the event of unfavourable evidence that date should be reconsidered and you know what happened to the INEC office in Bori, Bokano Local Government , you know what happened. Elections are ultimately conducted by human beings and not conducted by machines . Young people equivalent of your own children or brothers or sisters that have gone through universities and are serving formed the bulk of election staff for INEC and the problem is that if you mobilize for an election and for whatever reason demobilize, it takes time for you to mobilize again But I wouldn’t like to comment further on Rivers matter because as we speak our staff are there reconciling figures from the March 19 elections so that they can fix a date for the conclusion of the elections. You probably look that out of 80 cancelled elections, 37 almost 50 per cent are from Rivers State .It is not the wish of the commission that an important state like Rivers will not have representation in the senate, all the three senatorial seats and majority of seats in the House of Representatives and House of Assembly. INEC cannot be happy with that kind of situation. But elections are conducted by human beings and we must also be assisting in that respect. But I am confident the conditions are conducive for us to go to Rivers , if you notice of late the violence has gone down a bit and the parties are campaigning so we hope that, that understanding will continue until we conclude the elections . We are not happy that an important state like Rivers is without full complement of representation.
I want to refer you to the issue of smart card readers, in the course of the elections and after the elections, your commission was unable to defend the use of card readers in some states despite the specification of your predecessor that
governorship election that did not utilize the use of the card readers would not be deemed acceptable. And despite the regulation by your commission that smart card reader was to be an instrument in the conduct of the governorship election, your lawyers did not defend the position of INEC in the course of the proceedings. Secondly, you said you want to deepen the use of the smart card, you want to deepen technology. I want to know in the light of the judgments how you are reconciling your motives to this your intention.
At what level, at the level of the Supreme Court?
At all levels…
No because you see the election petition tribunal in the case of some states where the card readers wasn’t used or where there was litigation actually nullified he elections. The Court of Appeal agreed with the tribunals it was actually
the Supreme Court that makes a pronouncement. I am not a lawyer but I have
been briefed by lawyers. The issue at the Supreme court was not that the card reader was illegal, it was more or less the emphasis placed on card readers in election without register and that there should be some explicit provision in the Electoral Act for the deployment of card readers. And my attention was drawn to an amendment of the Electoral Act in 2015 specifically signed on 26th March 2015 two days to the last general election. That amendment only came to light after the election. It was in the content of all these issues that somebody drawn my attention to that bill and I said we had rumour after we were sworn in that actually the electoral act was amended but it was not used during the election and it came after the general election.
The question is that your staff who knew of this did not plead it in courts especially in the case of Rivers and Akwa Ibom?
No, I am not sure about our staff knowing about it because the first person to draw my attention to the possible existence of an amended electoral act was someone from the civil society and he was actually one of those that actually worked on the amendment. He said he heard rumour that it was accented to. But it wasn’t obvious to us at all; if we knew we would have used it. But now that there is opportunity, and we are outside the contest of litigation to amend Electoral Act.
I am hopeful and confident and it’s also in our submission in the amendment of the electoral act to the national assembly that some explicit provisions should be made available. But we would like an explicit provision that should mention inclusion of usage of technology. Because if tomorrow you move away from smart card reader and call it something else, someone would not stand up and say that the law specifically said smart card reader, and that INEC cannot just move away from smart card readers but card reader is just a name.
So in the proposed amendment to the Electoral Act , we made a recommendation to the national assembly for that explicit provision. In any case some members of the national assembly have already sponsored private members bills for the amendment of the Electoral Act to accommodate the deployment of technology.
When we are talking of inconclusive elections people say that even your board is inconclusive, that the board of national commissioners is not fully constituted. Is that not hindering you and what effort are you making as the man in charge to do what you are supposed to do?
Let me say this, just by the way of statistics that there are shortfall of six national commissioners and as we speak also there are shortfall of 21 resident electoral commissioners.
In 21 states the tenure of RECs have expired .but you know it is not the responsibility of INEC to constitute itself, there is a constituting authority and I have made adequate recommendations to draw the attention of those that supposed to constitute it and I am confident very soon the national commissioners will be appointed and the Resident Electoral Commissioners.
Yes because we are not facing a general election. It is in this kind of that I have described that we have some latitude to move some of the REC around to strengthen our staff in the state without Resident Electoral Commissioner for election. For instance in Oyo we moved the Resident Electoral Commissioner for Akwa Ibom to take charge of the rerun election and thereafter he would be back to his position.
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