Much as it is important to take decisive action to break the cycle of impunity in Nigerian Electoral System through enactment of law, it is equally important to put mischief which the law seeks to remedy into consideration in the enactment of the law.

Before the coming of the 9th National Assembly on board on 11th June, 2019, there was a bill titled ‘Nigerian Electoral Offences Bill 2017’ (HB 504 & HB 546) that was passed by the House of Representatives of the 8th National Assembly on Wednesday, 31st January, 2018. The Bill sought to establish a Nigeria Electoral Offences Commission that would be the primary body in charge of investigating and prosecuting electoral offences created under the Constitution, Electoral Act or any other law related to Electoral Offences.

Barely six (6) months of the inauguration of the 9th National Assembly of the Federal Republic of Nigeria that a similar bill was

introduced and sponsored by Abubakar Kyari, Senator representing Borno North as Electoral Offences Commission (Establishment) Bill 2019 and same has passed second reading at the plenary session held on Wednesday 27, November, 2019.

The Electoral Offences Commission (Establishment) Bill 2019 was introduced and sponsored by Abubakar Kyari, Senator representing Borno North a day after the senators lamented the violence and irregularities that have continued to mar Nigeria’s elections.

It is the stand of the sponsor of the Electoral Offences Commission (Establishment) Bill 2019, Abubakar Kyari, Senator representing Borno North that if passed into law, the legislation will help unbundle the Independent National Electoral Commission and help in speedy prosecution of electoral offenders in Nigeria. How true is this assertion?

It is against this background that this piece is written with a view to discussing the need to have Electoral Offences Tribunal established in replacement of establishment of Electoral Offences Commission which the bill seeks to establish.

Fortifying the discussion on the need to have Electoral Offences Tribunal established in replacement of establishment of Electoral Offences Commission which the bill seeks to establish is the deductible fact from the title of the bill ‘Electoral Offences Commission (Establishment) Bill 2019’ that the bill is exclusively for the establishment of Electoral Offences Commission and not Electoral Offences Tribunal which is the main calling of Independent National Electoral Commission and springboard for this piece.

It is the writer’s stand that the establishment of Electoral Offences Commission which the bill seeks to establish without amending the provision of section 153 of the Constitution to include the Electoral Offences Commission is not only going to make the said Electoral Offences Commission not known to the Constitution of the Federal Republic of Nigeria as one of the Federal Commissions provided for under section 153 of the Constitution, but also constituting a square peg in a round hole as the establishment of the said Electoral Offences Commission has no bearing on finding solutions to the problems and electoral challenges which have been preventing Nigeria to have elections free from violence through legislation.

It is equally important to reiterate that the establishment of Electoral Offences Commission and Electoral Offences Commission (Establishment) Bill to become Act if passed is a proliferation of Commission and Act on the Electoral System of the Country and having such Commission alongside with the Independent National Electoral Commission established by virtue of the provision of section 153 of the Constitution and regulated by the Electoral Act is a further means of wasting Nigerian tax payers’ money.

Flowing from the call for decisive actions against electoral offenders in Nigeria by Independent National Electoral Commission is a known stand that the Independent National Electoral Commission through its Chairman’s support is establishment of Electoral Offences Commission/Tribunal to handle matters relating to electoral offences and not the establishment of Electoral Offences Commission which Electoral Offences Commission (Establishment) Bill seeks to establish. What then are electoral offences in Nigeria?

The electoral offences are offences provided for in the provisions of sections 117-132 of the Electoral Act, 2010 (as amended 2015). These offences are: offences in relation to registration, offences in respect of nomination, disorderly behaviour at political meetings, improper use of vehicles, impersonation and voting when not qualified, dereliction of duty, bribery and conspiracy, requirement of secrecy in voting, wrongful voting and false statements, voting by unregistered person, disorderly conduct at elections, offences on election day, undue influence, threatening and offences relating to recall.

It is convenient to submit at this juncture that establishing Electoral Offences Commission in Nigeria with powers inter alia power to investigate, prosecute, issue summons to persons to appear in person or to produce documents that would help in the investigation or prosecution of electoral offenders for the Commission to make decision is nothing but conferring judicial power on the proposed Electoral Offences Commission.

It is equally important to say that empowering the Electoral Offences Commission to investigate, prosecute; issue summons to persons to appear in person and make decision would further create a clog in the wheel of administration of justice and further attempt to defeat the purpose for which the Administration of Criminal Justice Act was enacted by the 8th National Assembly.

It is further worth saying that the functions of investigating complaint of electoral offences levied against a person or persons, and prosecuting electoral offender(s) by the Electoral Offences Commission which the Electoral Offences Commission (Establishment) Bill, 2019 is seeking to establish are functions which can be added to the functions of Nigerian Police to perform by amending Police Act to include the said functions.

It is further worth saying that rather than duplicating Commission and Act on Nigerian Electoral System, it is economical and safe to establish Electoral Offences Tribunal which is the calling of many Nigerians as the square peg in the square hole and not otherwise. Establishing Electoral Offences Tribunal would afford many unemployed Nigerians including legal minded persons job opportunity.

It is the writer’s stand that so long as the appointment of the Chairman and members of the Commission resides in the President, the Electoral Offences Commission if established won’t be free from criticism and the adage ‘He who pays the piper calls the tunes’ would keep lingering in the minds of many Nigerians with thought that the ruling party would always have influence on the Commission.

It is fundamentally important to make it known that the major grounds upon which many election petitions are hinged or based to seek either nullification of the election for declaration of the petitioners or ordering of fresh election are majorly acts which are electoral offences i.e. ground that the election was invalid by reason of corrupt practices; ground that the person whose election is questioned had submitted to INEC affidavit containing false information of a fundamental nature in aid of his qualification for the election. How then can Electoral Offences Commission resolve the complaint and save the Election petition Tribunal from burden of determining election petition hinged on the aforementioned grounds?

It is the writer’s stand that the law makers are to help the country in finding sounding solution to problems relating to elections through legislation and not to compound the problem.

It is hereby recommended that instead of enacting Electoral Offences Commission (Establishment) Act to establish Electoral Offences Commission, the relevant existing Acts are to be amended with a view to achieving the purpose for which the said Commission is to be established. For instance, the Constitution should be amended with insertion of provision for establishment of Electoral Offences Tribunal, its jurisdiction, functions and powers of Electoral Offences Tribunal and time prescription for determination, hearing of complaint and delivering judgment. This time prescription should be provided for with a view to promoting quick administration of justice. This can be fixed for twenty-one (21) days.

It is further recommended that the Electoral Act be amended with insertion of provisions:

i. for direct complaint by an aggrieved person or persons to the Electoral Offences Tribunal
ii. time limit to present complaint, i.e. three (3) days from the alleged date of commission
iii. time limit for hearing the complaint and adoption of addresses if necessary

It is further suggested that the provision of section 138(1) of the Electoral Act be amended with the insertion of ground that the election is marred by the commission of electoral offences adjudged by the Electoral Offences Tribunal.

The provision of section of 140 of the Electoral Act is also need to be amended with the insertion of the phrase ‘on the finding and decision of the Electoral Offences Tribunal’ for the nullification of election, as doing this would call for quick determination of election petitions hinged on any commission of offences that marred election.

It is also important to suggest that the provisions relating to disqualification of candidate for elective positions provided in the Constitution be amended to include ‘a sentence of imprisonment or fine for electoral offences imposed by Electoral Offences Tribunal’

It is thus further suggested that the provision of section 285(5) of the Constitution which provides for time within which election petition is to be filed be amended to accommodate the prescribed time for determination of complaint on alleged commission of electoral offences without any enlargement of time for delivering of judgment by the Election Tribunal provided for under section 285(6) of the Constitution.

It is finally suggested that the provision for right of Appellant to incorporate an appeal on decision of Electoral Offences Tribunal in the main appeal against decision of election tribunal by an aggrieved person who was found guilty of the alleged electoral offences levied against him or her and whose election was nullified on the ground of his conviction be provided for via amendment of the Constitution.

The above writer’s recommendations in the opinion of the writer would be more helpful in reducing impunity in the Electoral Process of our Country and instill fear in many Nigerians who have criminal trait in their blood and make them know that no electoral offender shall be left unpunished.