The Real Injustice in the Anambra State Governorship Election

A lot has been said about the November 16th Anambra State Governorship Election mostly out of emotion; a feeling of disappointment with the performance of the Independent National Electoral Commission (INEC).  The disappointments are not misplaced considering the amount of resources and time put into preparing for the election. INEC deserves all the opprobrium it has so far received. But the way forward is not to sit in despair or predict apocalypse in 2015 as some are already doing. What we can do is try to understand what went wrong and work to prevent a reoccurrence.

Having reviewed most of the reports and results of the election, what is particularly disturbing is the level of participation. Anambra state based on the 2006 census figures has a population of about 4 million people; according to INEC, about 1. 7 Million Voters were registered for the 2013 Governorship election. Of the over 1.7 Million registered Voters, only a little over 400 thousand voted. Without going into the debate of who is responsible, whether INEC or the political parties; I believe there is something fundamentally wrong with 400 thousand deciding for 1. 7 Million. An election that allows for whatever reasons a minority of registered voters to decide for the majority cannot produce a fair result.

The condition for declaring a candidate winner in a governorship election is provided for in section 179 Constitution of the Federal Republic of Nigeria 1999 as amended. I have read section 179 and feel very disturbed that it emphasizes votes cast and not registered voters. For ease of reference I will reproduce 179 especially subsection (2).  It provides - “A candidate for an election to the office of Governor of a state shall be deemed to have been duly elected where, there being two or more candidates – (a) he has the highest number of votes cast at the election; and (b) he has not less than one-quarter of all the votes cast in each of at least two—thirds of all the local government areas in the State”

From the above provision it does not matter how many citizens or registered voters participate in the election. What appears to be important is that there is an election and the votes cast for the winner are evenly distributed in at least two-thirds of all local government areas in the state. This requirement I believe explains the general lack of interest in voter turnout and complaints about disenfranchisement. It is irony that sections 69 and 110 Constitution of the Federal Republic of Nigeria 1999 as amended which provides conditions for recall of federal and state legislators emphasizes registered voters. Section 69 for instance provides - “.A member of the Senate or of the House of Representatives may be recalled as such a member if – (a) there is presented to the Chairman of the Independent Electoral Commission a petition in that behalf signed by not more than one-half of the persons registered to vote in that members constituency alleging their loss of confidence in that member; and (b) the petition is thereafter, in a referendum conducted by the Independent National Electoral Commission within ninety days of the date of receipt of the petition, approved by a simple majority of the votes of the persons registered to vote in that member’s constituency”.

The cornerstone of elections is participation; the ability of citizens to determine freely how they are governed or who governs them. It is a right guaranteed by article 21 of the Universal Declaration of Human Rights (UDHR) “(1) Everyone has the right to take part  in the government of his country, directly or through chosen representatives”; the International Covenant on Civil and Political Rights (ICCPR) article 25  every citizen shall have the right and opportunity to “ to take part in periodic elections.....;to vote and be elected at genuine periodic elections”;  the African Charter on Human and People’s Rights (ACHPR) article 13 “ every citizen of a country shall have a right to participate freely in the government of his country, either directly or through freely chosen representatives...”

I imagine that some may argue that political participation is not obligatory. In other words, a citizen can choose to participate or not participate in a political process.   That may be true, but if elections are not mere rituals and the object of elections is participation of citizens, then, there should be sufficient participation as threshold to a valid election. The sparse voter turnout as in Anambra state cannot be sufficient participation. The National Assembly needs to urgently review the constitutional requirements for elections especially for the presidential and governorship elections in Nigeria (specifically sections 134 and 179) and replace the words “votes cast” with “registered votes cast”.  That way, the voter can be god again – Vox populi, vox Dei. 

Collins Okeke
Senior Legal/ Programme Officer, HURILAWS

Another perspective on the National Conference

It is not in dispute that there is an urgent need for a National Dialogue or Conference on Nigeria. This will enable us correct past mistakes and acts of injustice of the country and create avenues for a better and more united Nigeria under a generally accepted supreme constitution.

While we commend President Goodluck Jonathan for his decision to facilitate the National Dialogue or Conference and for setting up the Dr. Femi Okorounmmu technical committee to draw up modalities for the conference, we are concerned about the suspicion and lethargy that has so far trailed his decision.
Mindful of previous experience and the tendency for political calculations to derail the objectives of the conference, most people have questioned the agenda of the President - Why now, a few months to the 2015 general elections? Others point to previous committees and committee reports all of which have not been implemented by the government.

These suspicions are understandable that is why it is incumbent on the President to ensure the Okorounmmu technical committee deliver on its mandate within the agreed time frame which is 6 weeks.

We also believe that if the President wants to be successful at this exercise he needs to raise his trust quotient; one way to do this is to by word and conduct ensure the outcome of the dialogue/conference is not interfered with either by the executive or legislature.

Finally, we admonish the Okorounmmu technical committee to heed the advice of most elder statesmen by drawing up its modalities to adhere to these principles -

1.   Inclusivity
The opinions of the majority and that of the minority must be given equal expression.

2.   Diversity
The committee is drawing up its modalities must take into account the existing diversity in terms of language, age, gender, religion, ethnicity etc. The fact of diversity in Nigeria is a known one. Nigeria is made up of a multi ethnic and multi cultural, multi religious groups of people.

3.   Elimination of  No-go areas
There should be no no-go areas. Participants must be free to bring before the National Conference all issues.

4.   Transparency
This is another crucial bench mark. A transparent process is an open process that is bereft of fraud. Its importance in Nigeria where corruption has wrecked almost all public and private institutions has become extremely paramount.

The question now is: how do we ensure transparency in the current National Conference?

  • We must ensure that the principle of inclusiveness enunciated above is followed.
  • We need to see a documented effort of the people’s participation.
  • If the outcome is a constitution, we must see the draft constitution.
  • We need to feel free to criticize the draft and forward areas of further review.
  • We need to follow up the drawing of the final copy to ensure that the people’s views are represented and not abandoned along the way.

5.   Independence
The conference must be independent. It must be insulated from government control and manipulation. As such, the membership of the conference should not be accountable to the Executive but to the parliament (only for the purpose of giving legitimacy to its resolutions)

6.   Legitimacy
The eventual outcome of the review, i.e. the draft constitution, has to be legitimized by referendum and given legal status by the National Assembly.

Court restrains govt from executing five by hanging

A Lagos High Court Judge,Justice Mufutau Olokoba,has nullified the death sentence passed on five persons.

This declaration followed an originating summons filed by Mr Norrison Quakers (SAN) in 2008, against the Attorney-General of Lagos State on behalf of the five condemned persons, who were convicted at various occasions and for various offences between 1984 and 1995. They were to die by hanging or firing squad.

The judge, who described the mode of execution of the said punishment as an infraction on the right to human dignity of the condemned persons, granted a perpetual injunction restraining the respondents (Lagos State Government) from executing the condemned persons by hanging or firing squad

The applicants had, in the summons, sought the relief of the court to declare: the prescription of mandatory death penalty for offences such as armed robbery and murder a contravention of their right to dignity of the human person as well as not to be subjected to inhuman or degrading punishment under Section 34(a) of the Constitution of the Federal Republic of Nigeria, 1999; that the Criminal Code or Robbery and Firearms (Special Provisions) Act of the Federation 1990 in the circumstances of the applicants’ case unconstitutional, null and void.

An order of the court nullifying the mandatory death sentence by hanging or firing squad imposed on them pursuant to Section 319 of the Criminal Code Law of Lagos State, Cap C18 vol.2 and Section 1(2)(a), (b) and 3 for the offence of armed robbery under the Robbery and Firearms Act (Special Provisions) Cap 398 vol. XXII Laws of the Federation 1990 and Section 367 of the Criminal Procedure Law of Lagos State, Cap C18 col.2 as unconstitutional.

Reports from expert psychologists, pathologists and forensics from the University of Lagos (LUTH), Federal Neuro-psychiatrist Hospital, Yaba and Lagos State University Teaching Hospitals (LASUTH) were filed to support the claims of the applicants that death sentence inflicts mental torture on prisoners.

In his written address, Quakers proposed that the court should determine whether the imposition of mandatory death sentence on the applicants for murder and armed robbery violated their rights to dignity as enshrined in Section 34(a) is inconsistent and in conflict with the provisions of 34(1)(a) of the Constitution since the mode of execution is cruel and degrading; whether the applicants’ continued stay or confinement on death row under threat of execution for a long period of time is inherently cruel, inhuman and degrading and whether the National Assembly can legislate or prescribe the sentence of death as contained in the provisions of Section 33(1) and (2) of the 1999 Constitution.

He argued that although the Constitution in Section 33(1) sanctions death penalty, the modes of execution by hanging or firing squad as provided in sections 367 of the Criminal Procedure Law 1(2)(a), (b) and 3 of the Robbery and Firearms Act, violate 34(1)(a) of the 1999 Constitution since it involves torture and inhuman treatment.

The applicants’ counsel opined that the very pronouncement of the sentence of death by hanging or firing squad imposes mental torture on the convict which extends to the period between the pronouncement and the actual execution; and the actual execution itself is barbaric, inhuman, degrading and violative of Section 34(1)(a) of the 1999 Constitution.

Counsel to the state in a counter- affidavit urged the court to disregard the medical reports by experts submitted as exhibits by the applicants on grounds that they do not relate to the applicants and was merely an academic work.

Citing Ogugu vs the State where the Supreme Court held that death penalty per se does not under any circumstance amount to inhuman or degrading treatment but the manner or way a condemned prisoner is kept or executed, he urged the court to dismiss the application as the applicants have adduced no iota of evidence illustrating the way and manner in which they had been treated which amounts to inhuman and degrading.

In his ruling, Olokoba held that mental torture was an inevitable consequence of death sentence on the victims.

“My view on the first part of the argument is that it is an inevitable consequence of the sentence of death. It is a common human reaction to such pronouncement. I do not think there is a man or woman who upon hearing that he has been sentenced to death would shout for joy or would not experience mental torture.

“Once the sentence is pronounced the reaction is one of sorrow, anger, despondency and extreme fear as stated in the further affidavit of Francis Moneke sworn to on October 2, 2008 which itself contains the facts disclosed to him by Professor J.O. Obafunwa, Provost of the College of Medicine, University of Lagos and also contained in the affidavit of the respondent dated March 17, 2009.

“Since the death penalty itself is constitutional any reaction to its pronouncement by the convict is necessarily concomitant to it and cannot invalidate the law providing for it,” he said.

Addressing the constitutionality of the methods of execution provided by the Criminal Procedure Law and the Robbery and Firearms Act, Olokoba said it was a violation of the right to human dignity of a person as provided by Section 34(1) of the 1999 constitution... READ FULL STORY

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