Thursday, May 19, 2011

Anatomy of the role of money in Nigeria’s 2011 elections

THE 2011 General Elections are over with local and international acclamation to the electoral commission. The elections were not flawless; however, Nigerians and foreign witnesses are unanimous that the just concluded polls were held in substantial compliance with the nation’s electoral laws. It is too early to pre-empt the political parties on the veracity of the election expenses they will submit to INEC in the next 6 months. But then, is six months not too long? I should think three months after the polls is okay, more so as candidates, who spend the bulk of the campaign money, are not yet under obligation to submit election expenses report.

This post election period, two major things must happen. The first is for the Independent National Electoral Commission (INEC) to rise up to its constitutional duty to enforce political finance provisions as contained in the statutes viz. the 1999 Constitution (as amended), the Electoral Act 2010 (as amended) as well as the Political Party Finance Manual and Handbook. The second matter of urgent national importance is the amendment of these laws to make them more enforceable. The current legal framework requested three reports from the political parties. The first, according to section 89 of the Electoral Act 2010, is the annual statement of assets and liabilities, analysis of their sources of funds and other assets as well as their statements of expenditure. INEC is mandated to publish the report in three national newspapers.

The other report which is of greater interest to campaign finance experts is stated in section 92 of the current electoral act. Sub-section 3 of the clause says "Election expenses of a political party shall be submitted to the Commission in a separate audited return within 6 months after an election and such return shall be signed by the party’s auditors and counter signed by the chairman of the party and be supported by a sworn affidavit by the signatories as to the correctness of its contents". Sub-section 5 states that the return shall show the amount of money expended by or on behalf of the party on election expenses, the items of expenditure and the commercial value of goods and services received for election purpose. Sub section 6 mandated the political parties to publish this report in at least two national newspapers. The third report is requested of political parties in section 93 (4) and it states that "A political party sponsoring the election of a candidate shall within 3 months after the announcement of the results of the election, file a report of the contributions made by individuals and entities to the Commission". Hitherto, these provisions have been violated with impunity.

If the truth will be told, the last general election in Nigeria was the most expensive in the annals of our electoral democracy. Given the resources deployed by some of the wealthy candidates during the elections, there is no gainsaying the fact that the contestants showed scant regards for the provision of section 91 subsections 2 – 5 of the Electoral Act 2010 which placed a cap on the amount of money they are to spend on their campaigns. During the party primaries, campaigns and elections, humongous sum of money was deployed by the contestants to outdo each other. Apart from the legitimate spending on hiring campaign offices and staff, procuring office equipment and vehicles, running jingles and adverts, printing bill-boards and posters; there were also illegal expenses such as bribery of election officials to manipulate election figures, hiring of political thugs to foment trouble at polling centres, as well as outright vote buying.

Furthermore, many incumbent political office holders grossly abused the state and administrative resources (SARs) in their care thereby creating uneven playing field at the polls. It was an open secret that government aircrafts, vehicles, personnel, media and security agencies were used by the incumbents to the disadvantage of their co-contestants. This is in breach of provision of section 100 (2) which reads "State apparatus including the media shall not be employed to the advantage or disadvantage of any political party and candidate at any election". The good news is that in spite of these misuses of SARs some incumbent political office holders still lost at the polls. This happened during the gubernatorial polls in Oyo, Nassarawa, Zamfara and Imo States.

What played out during the last general elections was foretold by the former President Olusegun Obasanjo when in his address at the INEC-Civil Society Forum on 27 November 2003 he rightly observed thus: "we prepare for elections as if we are going to war, and I can state without hesitation, drawing from my previous life, that the parties and candidates together spent during the last elections, more than would have been needed to fight a successful war. The will of the people cannot find expression and flourish in the face of so much money directed solely at achieving victory. Elective offices become mere commodities to be purchased by the highest bidder, and those who literally invest merely see it as an avenue to recoup and make profits. Politics becomes business, and the business of politics becomes merely to divert public funds from the crying needs of our people for real development in their lives"

He further said "With so much resources being deployed to capture elective offices, it is not difficult to see the correlation between politics and the potential for high level corruption. The greatest losers are the ordinary people, those voters whose faith and investment in the system are hijacked and subverted because money, not their will, is made the determining factor in elections. Can we not move from politics of money and materialism to politics of ideas, issues and development?" How prophetic! Eight years after the above statements were made, little or nothing has changed. We mustn’t forget that a former Senate President corroborated the above assertion of Ex-President Obasanjo when he said that many of them sold their property to contest elections and had to recoup their investment. Any wonder that 50 years after independence we still grapple with no light, no water, epileptic education sector, comatose health sector, death-traps called roads and mind-boggling unemployment? The incoming political office holders will most likely towed the path of their predecessors in office unless we, the masses, demand for transparent, accountable and good governance.

I couldn’t agree more with the Daily Independent editorial of May 12, 2011 which counselled that "As part of the process of strengthening our democracy, the country’s campaign finance laws must be tightened and enforced. At the moment they are only observed in the breach. The situation is rather ominous because our political establishment has found it unattractive to make the machinery of government less financially attractive. The near total absence of sensible accountability makes it even more dangerous." In reforming the campaign finance laws, candidates must be made to submit their audited election expense reports to INEC since they run flamboyant independent campaign offices outside their party secretariats.

Appeal to Nigeria’s election petition tribunals

Congratulations dear compatriots on the success of our fourth successive elections in the Fourth Republic. The polls have been adjudged as freer, fairer and more credible than all the previous general elections including the widely acclaimed June 12, 1993 polls. This calls for back-slapping and felicitations. However, it is important to know that the 2011 General Elections have not ended. Indeed, we have only concluded the second in a three dimensional process. We are done with the pre-election and the Election Day phases.

The third and final phase is the post-election period which we are currently in. This post-election period is when various democratic institutions involved in the electoral process carry out stock-taking or reflection on lessons learnt; it is the time when reforms are initiated and preparations commence for the next general elections. Most importantly, the post-election phase is when election dispute resolution (EDR) takes place.

Simply put, the ball is now in the court of election petition tribunals (EPTs) to effectively resolve and conclusively determine the party and candidates who won in some of the constituencies where disputes have arisen. It has been predicted that the EPTs may not be overwhelmed with petitions as was the situation after the 2007 general elections. The reason behind this optimism is due largely to the credibility of the just concluded elections as well as the emerging new political culture in Nigeria where losers now accept defeat and congratulate winners.

For instance, Governors Adebayo Alao-Akala of Oyo State; Gbenga Daniel of Ogun State; Mahmud Shinkafi of Zamfara State and Ikedi Ohakim of Imo State who are all members of the ruling People’s Democratic Party (PDP) lost their governorship seat to opposition parties and still have the humility of accepting defeat and congratulating the winners. In fact the incumbent Speaker of the House of Representatives, Hon. Dimeji Bankole set the pace as gallant loser when he lost his re-election bid on April 9 and yet congratulated the winner. This is commendable and exemplary.

However, not every of the contestants have imbibed that spirit of sportsmanship. Some of the candidates who lost are at the election tribunals to seek redress. This too is laudable. It is better for the aggrieved to approach court or the tribunals to get justice than resort to self-help. The violence that greeted the announcement of the presidential election result from April 16 – 18 in some parts of the Northern Nigeria was needless, preposterous and fiendish. No matter the contention of the dissatisfied parties, they could simply have marshalled their evidences and approach the election tribunals for redress.

With the coming into force of the amended 1999 Constitution as well as the Electoral Act 2010 (as amended), the election dispute resolution mechanism have been tinkered with and the new law will now be put to test starting from this month of May 2011 as the tribunals begin sitting. Under Nigeria’s electoral justice system, only the political parties and the candidates have locus (right) to challenge the outcome of elections. There are 63 registered political parties at present and over a thousand contestants for different parliamentary and executive positions across the country. Some of the innovations in the election dispute resolution procedures include: Minimum of two tribunals sitting in each state where governorship and parliamentary elections took place. According to section 285 (1) and (2) of the amended constitution, each state will have National and State Houses of Assembly Election Tribunals as well as Governorship Election Tribunals.

The sixth schedule has also been amended to reduce the number of judges in each tribunal from five to three (i.e. Chairman and two other members). According to section 285 (5) “An election petition shall be filed within 21 days after the date of the declaration of results of the elections” while subsection 6 says “An election tribunal shall deliver its judgement in writing within 180 days from the date of the filing of the petition”. Sub-section 7 says “An appeal from a decision of an election tribunal or Court of Appeal in an election matter shall be heard and disposed of within 60 days from the date of the delivery of judgement of the tribunal or Court of Appeal.” These alterations are fundamental as prior to now (with the exception of 1979-1983), there was no time limit for election petitions to be disposed off. These new procedures are part of the recommendations of the Electoral Reform Committee (ERC) led by Justice Mohammed Uwais. Even then, they are not far reaching as ERC had proposed the conclusion of election petitions before inauguration of the winners.

As the election petition tribunals commence sitting, my appeal to the privileged judges of the tribunals is for them to do substantial justice. They must be firm, fair, thorough and look at the merit of each case rather than striking out matters on technical ground. Concomitantly, they must be time conscious knowing full well that they have six months to deal with all the cases brought before them. Lawyers representing the plaintiff and the defendants should also give the tribunal judges full cooperation. They must refrain from filing frivolous applications and shun delay tactics. Politicians too must steer clear of the tribunal judges. They should not seek to compromise them in any way.

Independent National Electoral Commission must also give full cooperation to the election tribunals by supplying requested information and materials expeditiously. Resident Electoral Commissioners (REC) must realise that section 77 (1) and (2) of Electoral Act 2010 (as amended) has given them only 7 days to provide documents applied for by any political party to pursue its case at the tribunal, failure of which such REC risk fine of N2 million on conviction and / or 12 months imprisonment. Adequate protection must also be given to the judges, court premises and exhibits. Electoral justice is very key to the deepening of democratic process. Justice should not be delayed and must not only be done but must be seen to have been done.

Wednesday, May 18, 2011

Views on the CBN New Cash Withdrawal Limit

On Thursday, April 28, 2011, Central Bank of Nigeria issued a circular titled “Industry Policy on Retail Cash Collection and Lodgement”. In the circular the CBN put a cap on the amount an individual can withdraw from his or her account at N150, 000 while corporate organisations can only withdraw maximum of N1 million in a day. The apex bank also stipulated penalties for contravention of the new monetary policy.

Most of the reactions to the new policy have been on cash withdrawal with deafening silence on cash lodgement. I think CBN needs to clarify the position of the circular on cash lodgement. Is there a ceiling as well on cash lodgement? If there is, is it same as placed on retail cash collection?

On the new cash withdrawal limit, I think it is a noble idea, if faithfully implemented. It has the potential to enhance transparency and accountability in the banking industry as well as curb corruption, money laundry and terrorism financing. It will enable CBN to channel the huge resources spent on currency minting to better use. The new monetary policy will also promote wider use of alternate payment systems such as cheques, electronic money transfer, and so on.

However, in the short term a lot of people may be scared keeping their money in the banks if it will be cumbersome withdrawing it. Business transactions may also be slowed down as a result of service providers or traders waiting for the confirmation of money transfer before releasing goods or providing service. There is also likelihood of increase in the rate of credit and debit card frauds, issuance of dud cheques and hacking of cyber-criminals into banks or customers database in order to perpetrate frauds. Bank customers may also start indulging in multiple accounts holding in order to meet their cash needs.

For the new policy to succeed, Central Bank of Nigeria and all the financial institutions involved in the implementation of this directive must build their staffs capacity to effectively monitor compliance and enforcement. The banking public should be adequately sensitized and educated on the advantages of this new initiative. There must also be expansion of the new payment channels such as Point of Sale terminals and other e-payment platforms for prompt and efficient settlement of transactions or claims. It is important for banks to offer incentives for people to embrace the alternative payment channels than cash withdrawal. There could also be higher interest on savings than presently obtained so that people will imbibe saving culture.

CBN should also consider increasing the cash withdrawal ceiling for individuals to N500, 000 per day and that of corporate organisations to N5 million per day. I believe this will meet the daily need of those who may prefer to pay cash for goods and services. This new policy needs to be backed by the freedom of information act as well as anti-money laundering and anti-terrorism law in order to be more effective. The strengthening and expansion of information, communication technology (ICT) backbone of banks is very important if the new policy will succeed. Improved electricity is also sine-qua-non or imperative to power the ICT equipment and enhance seamless operations of the e-payment platforms. Most importantly, erring financial institutions must be promptly sanctioned to serve as deterrent to others.

Thursday, May 5, 2011

Nigeria’s 2011 Polls in Retrospect

Opinions are diverse on the outcome of the just-concluded April 2011 general election. While the winners will score the Independent National Electoral Commission (INEC) high, losers are quick to point out that the election is flawed as the previous polls. Going by the view of international and local media and observers as well as the average electorate, 2011 general election is an improvement on the previous polls held in Nigeria. There is also a near unanimity that it is not yet a perfect election and that there are many areas crying out for attention. As an accredited observer who witnessed the elections in many parts of Nigeria (Lagos, Ogun, FCT, Niger and Bayelsa), I should say the election is a watershed and an epochal event in Nigeria’s political history.

For the harsh critics who see nothing good in the April polls, it is important to let them know that as a nation we have done well for ourselves, particularly given the time constraints and the very inclement political environment under which the April general election was held. The bulk of the problems observed during the elections were engineered by some politicians who resorted to desperate measures. Yes, there were a few black-legs and renegades among the INEC staff (ad hoc and permanent) and the security agents, but the subversive activities of a handful of these people should not be used to rubbish the sterling and splendid performance of majority of the election administrators.

While not making excuse for INEC on whatever imperfections were noticed during the polls, we must remember that Prof. Attahiru Jega had less than one year to prepare for the elections having been sworn in with his national commissioners on June 30, 2010. As at then, the legal framework was not in place and the uncertainty persisted until January 10, 2011 when the amended constitution was signed into law by the president. Even as we speak, majority of Nigerians have not been able to access the authentic copies of the amended 1999 Constitution as well as the Electoral Act 20110 (as amended). That in itself impacted negatively on the desired voter education and mobilisation.

It would also be recalled that INEC had to embark on fresh voter registration from January 15 – February 7, 2011. Registering 73.5 million eligible voters in three weeks is an incredible feat and INEC should be commended for that. The desperation of our dyed-in-the-wool politicians became manifest during the voter registration as they mobilised persons less than the mandatory 18 years to put their names on the register while also encouraging a lot of eligible voters to engage in multiple registration. The fact that the National Voters Register was somehow padded could be the rationale behind INEC’s introduction of accreditation before voting.

Going forward, it is time to commence preparation for the 2015 elections. First on the priority list is restructuring and reform. There is a need for INEC to start the broader restructuring of the commission to ensure that it takes advantage of the provisions of the law meant to guarantee its independence. For instance INEC by virtue of the recent constitutional and Electoral Act amendments have been granted administrative and financial autonomy. According to section 81 (3) and 84 (8) of the 1999 Constitution (as amended) INEC’s funding has become a charge on the Consolidated Revenue Fund. Equally, section 160 of the Constitution has been amended to grant INEC power to make its own rules or otherwise regulate its own procedure without approval or control of the president. Moreover, board members of INEC are no longer expected to be partisan given the amendment to section 156 of the main constitution as well as section 14 of the Third Schedule of the same ground norm.

Thus, INEC needs to carry out a thorough staff audit and performance of various units and department within the commission with a view to finding out if they are achieving set objectives. The electoral commission should commence the continuous voter registration as there were many who could not register during the exercise in January. Furthermore, a forensic analysis of the National Register of Voters needs to be undertaken to weed out multiple and under-age registrants. Those who wish to transfer their voting units should also be allowed as significant number of people registered where they can without taken cognisance of proximity to where they intend to vote. INEC also needs to process the permanent voter card (PVC) and distribute it to owners.

This post-election period is the time to revisit the legal framework for election and carry out the needful amendments. For instance, it is time we initiated reform to accommodate out of country voting (OVC) for Nigerians in Diaspora and early voting for those who could not exercise their franchise because of their being on election duty during polls. It would be recalled that thousands of journalists, security agents, election observers and party agents are often not able to vote due to the nature of their engagements during elections. Nigeria’s electoral laws also need to be amended to make way for prisoners who are not on death row to vote. Moreover, voting by proxy should be allowed so that those who could not by themselves exercise their franchise can do so through anyone of their choice. I am also of the opinion that the ban on the use of electronic voting should be lifted. That option should be made available to the Nigerian electorate.

It would also be nice to revisit the Electoral Reform Committee recommendation to have the election petitions concluded before inauguration of winners at election. Moreover, the electoral commission needs to factor persons with disability into their preparation for future elections. It is equally important to take another look at the call for proportional representation, affirmative action for women in politics, provision of independent candidates, issue of one term rather than two terms in office, etc. These reforms should be concluded latest by the end of 2012 so that there will be ample time for implementation.

INEC needs to exercise diligent prosecution of perpetrators of electoral violence and frauds. This is the only way to break the culture of impunity associated with election-related crime. Good enough, the Nigeria Bar Association (NBA) has offered to partner the electoral commission on this assignment.