Who is afraid of the Uwais Report

Even before the enactment of electoral reformlegislation, President Umaru Musa Yar’Adua has clearly demonstrated his unwavering commitment to this important reform agenda.

Through words and deeds, he has shown that under his watch, votes would not only be counted; they would also count. But it would appear that with the misconceptions about the Justice Mohammed Uwais Committee report (which many of the critics have not even bothered to read) the public is being misled into believing that this government is not committed to electoral reform. Nothing can be farther from the truth.

Before we examine the Uwais Report and the controversy arising therefrom, it is necessary to situate how the President’s commitment to electoral reform has been demonstrated in practical terms in the last two years. To date, the Independent National Electoral Commission (INEC) has conducted 70 court-ordered bye-elections under President Yar’Adua’s watch. These are: six governorship seats, four senatorial seats, 11 seats for the House of Representatives, 48 seats into the Houses of Assembly in the states, and one councillorship seat.

Aside the acrimonious re-run of the gubernatorial election in a section of Ekiti State, the outcomes of most of the bye-elections have been generally accepted as fair by losers such that only about five have gone back to court. What is even interesting is that several of the results have been rather dramatic. For example, in Shelleng Constituency of Adamawa State, the PDP candidate scored 9,175 votes to lose to the AC candidate who garnered 9,228 votes. That is a margin of just 53 votes in a PDP-controlled state. In Plateau’s Quanpan South, the ANPP candidate won with 17,753 votes to 17,669 votes by PDP, a margin of less than a hundred votes in another PDP-controlled state. In Kajola Constituency of Oyo State, the AC candidate won with 12,003 votes to 11,941 votes by the PDP candidate.

Now to some politicians, these would be considered “good results.” Such a conclusion is fair enough, except that it is never applied consistently. For example, in Orelope Constituency in Oyo State, where the PDP candidate won with 5,942 votes to 5,291 by the AC candidate, these same people who would label the first sets of results “good” would have another name for it: “rigging”. The same goes for Mikang constituency in Plateau State where PDP won with another slender margin of 9,590 votes to 8,416 votes garnered by the AC candidate.

From what is becoming very clear, it would seem that to the opposition politicians and their supporting critics, the only way an election result would be deemed fair is when the president’s party loses, irrespective of the relative strength of the various parties on the ground. This is not only unfair; it also does grave injustice to objectivity.

Interestingly, not only have virtually all the court-ordered reruns by INEC in Ondo and Edo States been in favour of Labour Party and AC respectively (this can be explained by the new political shift in those states), it is indeed a notorious fact that elections conducted by the States Electoral Commissions have a predictable outcome of delivering only candidates of the ruling parties in the states.

Yet at the federal level, the pattern is different because of the total freedom (from any form of interference) INEC now enjoys under President Yar’Adua. Let us take the gubernatorial elections in Kogi State. In the re-run held on 29 March 2008, the total valid votes were 699,619. Of these, the incumbent PDP Governor Ibrahim Idris secured 518,581 votes to ANPP candidate’s 175,978.

Now, let’s analyze the result. In April 2007, Abubakar Audu of the ANPP had been excluded and on this basis went to court which means his supporters did not vote. Yet in that election, the combined votes of the PDP and AC candidates--without adding the votes of other parties--far exceeded one million with the PDP candidate scoring 724,839 votes to AC’s 304,335. We all can guess what the parties were doing in their areas of relative strength. The re-run conducted under this administration took care of that anomaly.

The first thing the president did on assumption of power was to advise INEC to train and then begin to deploy NYSC members for the conduct of the bye-elections and this has yielded positive results. In Adamawa,

Bayelsa, Sokoto and Cross River States where gubernatorial elections were re-run, the pattern was the same as the votes recorded were not more than about 50 percent of the figures recorded for the 2007 polls. Essentially, this happened because these elections were better conducted and better monitored.

It is also to the credit of President Yar’Adua that the judiciary has been strengthened in the last two and a half years not only to safeguard the democratic structure but also to provide redress to those who believe that the outcome of a given poll resulted from wrong doing. With this the courts now know that they have power (that is beyond the interpretation of any Attorney General) to remove any elected candidate, if it is found that the seat was achieved through improper means.

Now to the Uwais report. It would be recalled that on Aug. 28 2007, the president set up a 22-member Electoral Reform Committee to examine Nigeria’s entire electoral process and identify lapses and inadequacies which need to be addressed in order to ensure free and fair elections. This he did without prompting from any quarters.

The Committee, headed by Justice Uwais, was to make general and specific recommendations to ensure: a truly independent INEC; an electoral process that would enable the conduct of elections to meet acceptable international standards; legal processes that would ensure that election disputes are concluded before inauguration of newly elected officials; and mechanisms to reduce post-election tensions.

It is noteworthy that while the committee was in session, most of the people who have today become the advocates of the report (which they probably have not read) were maligning the person of the highly-respected former Chief Justice on account of the fact that he had in the past sat over cases that did not go in their favour. This further says something about the character of these politicians and critics: that the only thing they would accept is their own preferred outcome, whether the facts support it or not.

In any event, the Uwais report was submitted to the Federal Executive Council. After a thorough consideration of FEC conclusions, the Council of State adopted the White Paper which accepted the fundamental recommendation that the funding of INEC would be a first-line charge on the Consolidated Revenue Fund of the Federation so as to guarantee financial and administrative independence. It also accepted the recommendation of Open Secret Ballot System which allows for the following:

(a.) voter to go into a polling booth to mark his ballot in secrecy and drop it in the box in the open; (b.) accreditation of registered voters prior to the commencement of voting for the purpose of tracking how many people cast their ballots in a polling station; (c.) display of voter’s register prior to elections to enable registered voters, political parties and the electorate generally make claims and objections; and (d.) election results will be announced at all polling centres by presiding officers, duly signed and copies given to accredited agents, the police and the SSS.

Some of the key recommendations of the Uwais Committee that were, however, rejected include the injection of Proportional Representation into the current electoral system “in order to promote greater inclusiveness and minimize both pre-and post-election tension” and holding all elections at least six months before expiration of the term of incumbents “to allow adequate time for election petitions and appeals to be concluded before swearing-in anyone.” Also rejected was the recommendation that the burden of proof be shifted from the petitioners to INEC and staggering of elections such that National and State Assembly Elections hold two years after Presidential and Gubernatorial Elections as well as the stipulation of time limit for disposing of election petitions i.e. four months for election tribunals to deliver judgment and two months for the conclusion of all appeals.

The aspect of the Uwais Committee report that was accepted by the Federal Executive Council but later rejected by the Council of State was the inclusion of six other nominees into the INEC Board comprising one nominee each from Labour, the Nigerian Bar Association, the Media, National Youth Council, Nigerian Civil Society, and Women Organisations. The Council of State also rejected the proposed abolition of the State Independent Electoral Commissions.

Now, let’s examine the issues that have dominated the media. On the recommendation of the Uwais committee that elections should hold six months before inauguration so all petitions could be settled before swearing-in, both the Federal Executive Council and Council of State reasoned that to conduct elections six months before swearing-in, (leading to the possibility of having two authorities for six months in one state or even at the federal level) is an open invitation to anarchy.

There was a counter proposal to impose a time-limit of three months for the conclusion of all petitions but Justice Uwais and Justice Belgore, another former Chief Justice of the Federation, were also at the Council of State meeting and the duo guided discussion on the issue. From the exchanges, there was no guarantee that even the six months being proposed would work. It was at that point that the decision was taken that if the only way to enthrone justice was to allow the aggrieved seek redress without the constraints of time, then so be it. But if the National Assembly can find a practical solution to this problem, it will be to the delight of the president who also wanted, and still wants, a situation where all litigations would be concluded before an elected official is sworn into office, without sacrificing justice.

On shifting the burden of proof to INEC, I am not a lawyer but there were many at both the FEC and Council of State and the basic argument was that this would be an inversion of a basic tenet of law that he who asserts must prove. Besides, such would encourage many unserious contenders to simply go to sleep and after election go to court and seek that INEC should explain why they didn’t win.

With such argument, that recommendation could not pass.

The issue of who nominates to the Senate the chairman and the members of the INEC Board is about the most controversial. The Uwais Committee recommended the National Judicial Council to take the lead. The FEC and the Council of State felt that the financial and administrative independence of INEC is more important than changing who nominates the board. The subsisting arrangement is in accordance with the precepts of separation of powers: with the executive nominating, the legislature confirming and the judiciary left to adjudicate in case of dispute.

Beside the important issue of separation of powers, it was the considered view of the Council of State that the judiciary should be insulated from politics. The argument was that since most of the reasons adduced for the electoral fiasco by the courts were problems associated with the conduct of INEC whose officials were in most cases carpeted by the tribunals, then the impartiality/neutrality of the Judiciary (as the final arbiter) would not be guaranteed if it was involved in the appointment of the same INEC officials. It was also felt that to conclude that the President of Nigeria, (and it’s not about individual here but rather the institution) cannot nominate (as distinct from appointing) to the Senate names of individuals for mere electoral duties is an assault on our collective integrity as a nation.

It must be stated that unlike the critics who take an absolutist view of things, the president is open and has demonstrated this all along. For example, despite the fact that there was a Government White Paper before he called the Council of State meeting, he told them in the course of the session that the entire Uwais Report was open for discussion. This same report has been placed in its entirety by the president before the National Assembly, which clearly is not a rubber-stamp institution.

It is therefore important for all those convinced about the urgency of electoral reforms in Nigeria to take the trouble to read the original report and government’s proposals and take up whatever issues they have with the National Assembly. Calling on the president to “implement 100 percent” a report whose main features are legislative is either plain mischief or a display of crass ignorance.

This is a reform initiative that is critical to the social, economic and political development of this country. It should be approached with all seriousness and rigour. It should not be reduced to an opportunity to score political points, or a platform to take pot-shots at the president, or an avenue to play politics by other means.

Adeniyi is the Special Adviser to the President on Media & Publicity