the Integrity of the Elections

IDEAS Radio 15 February 2019

Sandra Ezekwesili: Hello Lagos, good evening and welcome to Countdown 2019 with Rotimi Sankore.  This is 99.3 Nigeria Info. I am Sandra Ezekwesili.

Aghogho Oboh: And I am Aghogho Oboh.

SE: You can follow the show on Twitter @Countdown2019, you can follow @NigeriaInfoFM as well.  You can follow me @SSEzekwesili and you can follow @AghoghoOboh, at … spelt exactly the way I said it.  We have Ayo Obe on the show today.

Ayo Obe: Hi!

SE: Hi.  Why are you laughing?  What did I say that’s funny?

AO: Because of the way that you said “exactly the way I … spelt exactly as I said it” …

SE: Yes, Aghoghoh  … Oboh! And so we start off with the IDEAS segment of Countdown 2019, and then move over to having conversations with Kadaria Ahmed who’s also on the show with us.  Hello Ma’am.

Kadaria Ahmed: Hi.

SE: Great to have you on the show.  

KA: Thank you for having me.

SE: Ok, so we’ll start with Ayo Obe then move over to having conversations about ethics that journalists should imbibe especially during the elections.  Over to you Ms. Ayo Obe.

AO: Oh, thanks very much Sandra.  Actually, I should say that Ethics is also part of the IDEAS acronym, so we may also be picking Kadaria’s brain on that matter as well.

But I should say that yesterday I was at the Murtala Muhammed Foundation’s annual Lecture, and the theme was: “Towards a …” you know,

“Towards more Credible, Free, Inclusive Elections in Nigeria.”  And at, the keynote address was given by Professor Chidi Odinkalu, and he noted that, he sort of traced the trajectory of our presidential elections, of which we’ve had six, because he counted the 1979 presidential election, the 1983 one, and then the botched June 12th presidential election, and then ones we’ve had in this our Fourth Republic, so we’re really, we’ve been on a trajectory.  And I also looked at it and reflected how in this Fourth Republic we kind of marked time on, for the first three elections up to 2007, but that since then, that was the election we had with the, under Professor Maurice Iwu, that the winner himself, felt that had been so poorly conducted, that we needed to have electoral reform.  And so we had the Uwais Panel on electoral reform and that since then, the general consensus is that our elections have been getting better. And that was the theme of Professor Odinkalu’s paper.

I commented on it from …  being rather longer in the tooth than him I’ve actually participated in many of these things, and indeed, I was the most junior of the Counsel who was involved in the famous ‘Twelve two-thirds’ case, so if you look at the report of that case, you’ll see my name as the last lawyer.

KA: Maybe you should give a little bit of background on Twelve two-thirds …

AO: The Twelve two-thirds case was the transition to civil rule of 1979, and we had an election where the Presidential election was going to be the last election.  So you’d had State House of … you’d had all the legislative elections and we had nineteen states, and we had the same constitutional requirement that you must get 25% of the vote in at least two thirds  of the states of Nigeria. But of course 19 is a number that is not divisible by three. But … and so every other thing that the electoral management body had done, had treated two-thirds as thirteen. But when it now … when the results of the first legislative elections came out, and it was clear that the leading party was not going to be able to score 2/3 in thirteen states.  And the – it wouldn’t have been terrible – it would have just meant that we had to go to a run-off election. And of course, in a run-off election amongst the two highest, then there’s a possibility that everybody can as they would say, gang up. But then, the … one of the leading lawyers in the leading party at that time, came out with what was known as the ‘winning formula’, which was – not that you had to have two thirds of the vote in thirteen states – but you had to have 2/3 of the vote in nineteen, in 12 and 2/3 of the states,

SE: That’s a lot of maths.

AO:… and in Kano State as it happened …

KA: So much maths that I actually remembered!  I was 11, but that two-thirds argument was so interesting …

RS: Arguably fraudulent!

SE: It’s a lot of maths!

AO: It was, you had a situation where the mathematics of it was that in Kano State, they would, the leading party would get 25% of the vote in two thirds of the local government areas, but not in the whole state.  And when that was declared the winning formula, and it was also a situation where we had previously had, our Chief Justice had been Sir Darnley Alexander who was actually from the West Indies, and he was eased out of his position, and we now had a Nigerian Chief Justice of Nigeria again, Justice Fatai-Williams, and so the case was set to go to court.  But it wasn’t about whether the votes were being counted properly or not, and, it was about: How do you interpret twelve and two thirds? And in the end the Supreme Court said that two thirds of 19 is twelve and two-thirds! And that was how Shehu Shagari became President.

Of course, by the next election it was ‘moonslide’ time, so there was no … there was  nothing like calculating any …

RS: FEDECO Moonslide!

AO: But I think that it’s … you see because … I mention the fact that it wasn’t about counting the votes, because since then, we have had a real struggle about counting the votes and collating them.  Now things were slightly better, I mean, I was also involved, I was working, I should say, with G.O.K. Ajayi, that’s how I became involved in some of these cases, not because of my great legal prowess in election cases …

KA:… Stop being so modest!

AO: … but by 1983  we had a lot of election petitions, and most of them resulted in overturning the verdict that had been declared.  So it’s always important to understand that an election is not just about what happens on the day, it’s not just about counting and so on.  But I kind of digressed, because what I wanted to say was that …

RS: A very important digression.

AO: What I wanted to say was that our … we had Ellen Johnson-Sirleaf, the former President of Liberia, she is leading the ECOWAS mission.  I must say this is the first time I’ve seen her for a long time without her famous head tie! And then we had the joint NDI/IRI delegation.  Now I used to work for the National Democratic Institute and we’re always doing things with the International Republican Institute, so they are kind of like ‘my people’.  And as it happened, President Festus Mogae, the former President of Botswana, had actually been heading a pre-election assessment mission when I started, I took time out from legal practice to work with NDI, and that was  2006. And they sort of, what they do is look at what is: What recommendations can we make for this election that’s coming up in a year’s time, so that it will be as good as it possibly can? But he was now heading, one of the heads, and then you had also the Vice President of The Gambia and we also had the former President of Latvia.  And she – the timetable, or the agenda of the lecture, was that we gave our lectures and then you had some goodwill messages, and she wasn’t actually on the list, but she said that she wants to speak. And when she came to the podium, she said she just wants to say how much she admires Nigerians, that we’ve managed to hold our country together despite all our differences of ethnicity, of religion, of culture, (because we had two of our royal fathers there, the Sultan of Sokoto and the Emir of Kano), and so, I think everybody who was listening, felt that yes, actually we are sometimes a bit too hard on ourselves.  We who are inside, we only see the problems that we have, but we should recognise that outside, people may criticise us but there are some who admire us, and we should do more I think, perhaps to try and live up to the things that people admire about us, even though in this time of elections, particularly with the added factor of social media, it’s … we may be concentrating more on what divides. But that was a salutary reminder that, and as Professor Odinkalu said, “Nigeria will still be here on Sunday, and we will, Nigerians will go to work on Monday”, you know, and these are some of the things too, that I think we …

RS: There’s an important question which we need to ask, which is: In the context of the IDEAS segment, what would we consider a breach of the integrity of the process, of the actual voting process?

AO: Oh, there are so many ways in which it could be breached, starting off with the simple matter of punctuality.  Because the polls are supposed to open at eight o’clock and to close at two. Now if the election officers are not ready at that time, then already you have some delays.  And I would say that in my time when I was on the Police Service Commission and we monitored the conduct of the police and the security agencies during the elections, it was noticeable that the police were always on time.  They were always at the polling station in good time. The election officers were still collecting materials, and they could be late. But the security agencies would be …

KA: Is there provisions for an extension in that sort of situation?  

AO: Well, if the …

KA: Where you start late?  Is it automatic that you then extend?

AO: If you start late, I’m not sure it’s automatic, but I think that they do extend.  But what they have said is that if their card reader machines are not working, then they will have to have the poll at that polling station the next day.  And I think also that – because I mean, it’s an important point that you raise – because of the instruction that as long as you’re on the line at two o’clock, then you can …

SE: You’re allowed to vote.

AO: … you’re allowed to vote.

KA: When you think about places like – I think it’s Anambra that is having to have …

SE: Card reader problems

AO: Yes, but they say … INEC is insisting that it has replaced the card readers, and I think we should be aware that these card readers I think are manufactured here, so there’s a capacity to do that replacing.  Obviously if the accreditation is not done on the basis of the card reader, but instead INEC now starts reverting to …

KA: Manual lists.

AO: … manual, which INEC has said it’s not going to do, but so if it were to do that, that again would be, would attack, would be, would call the integrity of the vote into question.

RS: But if they had no way out and there are no card readers?

AO: Then they’re supposed to wait to the next day.  Although I know that there has been some litigation to challenge that, but that had been INEC’s position and as far as I know, the courts have not set that aside.

SE: And that’s actually something that happened in 2015.  They continued the next day when the card readers didn’t work on Day 1.

AO: Yeah, so I think that that’s an important part.  But I guess that … for us who are the ordinary voters: we go, we vote, and we are free to stick around and see the count.  Now, so obviously, if you come in the morning, the ballot box is shown to everybody and it is shown to be empty. The ballot boxes are semi-translucent so that you can see whether something is put inside or not.  Those are some of the things that have to be checked to begin with, to make sure that the forms that they are going to fill at the end, have not been … you know, that they have all the necessary forms and things like that which are important for being able to trace the, to do a number trail.  And I think also, it’s important to stress the role that political party agents play in the integrity of the poll, because when the votes are counted, in the first place, if there are some some ballot box papers that have, you know, when the mark has strayed into another section, the polling agent will show it, and people will sort of …

RS: Do they want to challenge this?

AO: Yes, do they want to challenge it?  And of course if you want to challenge the one that doesn’t favour you, you may find that the principle that you’ve laid down …

RS: That there are lots that …

AO: … could work against you the next time.  So you … so those are the things. But also, the point is that they, they are there, they observe the count, and then they have to fill the form signifying the result.

RS: That all the parties …

AO: And everybody who is there as a party agent is supposed to be able to have their own signed by all the parties and also signed by the security agents as well as the polling officers.  So …

KA: I have two quick questions.  If as a party agent you are in a polling unit where you are concerned that material breaches have happened, are you by law allowed to refuse to sign results, as a sign of protest?

AO: Yes, you don’t have to, you’re not obliged to sign, you’re not obliged to sign.  But

KA: But by appending your signature, you’re essentially saying that this is …

SE: You agree that everything went well …

AO:  … that this is what was counted at my … but you’re counting what is  … you are attesting to what is counted. There may have been other incidents which have occurred, which are of concern to you.  And that’s why, I said before, that election observers, they don’t go to say what went wrong, they go to say: This is the time that the poll opened, Okay.  If it opened at 9 o’clock, that’s what they will write. They will say: These are the number of security officers that we saw. If they didn’t see any, that’s what they will write.  I mean sometimes the police are, you know, moving between one or two and in some areas where you have a lot of polling units. And so on. So that … and if they see people who were not accredited, voting, all of those things …

KA: Ok, so that’s another thing because we have a material difference between the last elections and this one.  Last elections, you first do accreditation, and then you come back and vote. On this particular occasion, you’re going to be accredited and then you go ahead and you vote.  In your view does this do anything at all to the process and its integrity?

AO: Well I think that…

KA: Because I’ve heard the opposition complaining.

AO: I think, I should say that as far as I’m concerned I played – as far as I’m concerned – I played a material role in the system of separate accreditation and coming back to vote.  But that was in 20 … I happened to be at the Chinua Achebe colloquium with Professor Jega who’d just been appointed to head INEC. And they were planning to do the same system as we had in 2007.  And I said, well that would be Ok if your voter’s register was not a work of fiction. But where your voters’ register is a work of fiction, then this is really the only way that you have of trying to force some integrity back about the numbers.  Because in the situation where there are so many false names there, if you make everybody be there, if you registered in twelve places and then, you can only … you have to be somewhere in that hour, you will not be able to cover those twelve places.  So that’s the time when that was important. But (and we also used it in 2015) now INEC is saying it’s confident, it’s more confident about its voters register. That there cannot be double registration, that if you come with the same digital or biometric data – your thumbs, your fingers, and you try to register, then it will show, and you will be rejected.  So, we have to see. I think really, the reason why INEC wants to do this is – according to them – that people come for accreditation, they don’t come back to vote, especially if the accreditation …

SE: Takes too long …

AO: Yes.  And we are one of the few countries where that happens,  I mean, having observed elections in Kenya and other places, you go and you vote.  But, so it’s a sign of maturing in our democracy. But we are going to see whether it works or not.

RS: There’s an important question, just taking us back to the issue of political party agents signing.  So in a situation where you have dozens of parties …

AO: Yes, it can get quite …

RS: … which means dozens of party agents have to sign, what would be the threshold for saying that enough people signed?

AO: Well I don’t know.  You see, I mean, the last time … I was involved in litigation on this in 1983 when we only had six political parties.  By law it was limited to six, they had to meet very strict criteria and then they could be registered. And we only had six parties, so we could … you know, every agent could sign.  And it was very important because I was doing election petitions in Plateau State, and you could have the … and it’s important from the point of view for we lawyers, because when a document is created in exactly the same way, then each … you know, people talk about copies and originals, but in law, we don’t really talk about that, we talk about  primary evidence and secondary evidence, and each signed results sheet like that, is primary evidence of every other one. So when you come and say these are the results that were declared, then that’s what … unless somebody now comes to say: No, my own sheet is different.

SE: Is different

RS: But say you have seventy …

KA: Two …

RS: … candidates and you have party agents for all of them …

AO: Then you’d better get ready!

RS:  So you need the same number of copies signed by all of them?

AO: It could be a lengthy process.  A lengthy and tiring process.

RS: And if only 20 or 30 sign?

AO: Well, I mean, if the others don’t, then it will be for them to show what it is that they’re going to show to their political parties, because if you’re in a party that doesn’t sign and then you later want to challenge the result …

RS: … then you have nothing to present?

AO  Well, you will have what you say is the result, but it may not be signed by everybody else.

KA: The thing is though, I suspect you’re going to find that deploying agents at every polling unit is expensive.

AO: Oh very!  Absolutely.

KA: So many parties are actually not going to have agents at the polling unit.

RS: Under the current system, we will not have …

AO: They will not.  They won’t.

RS: So what then happens if only a few parties are able to deploy?

AO: Oh well those are the parties that are going to be able to attest to, or challenge.

KA: You can’t blame INEC for you not being able to deploy …

RS: No, I’m not.  No, it’s not a question of blaming INEC, it’s just that from the legal point of view …

AO: No no no, as I said, it doesn’t make any difference, any that is signed in the same way, is primary evidence of the rest.  So that’s … I mean, I’m going way ahead to assume that we’re going to, that there may be, you know, that there may be …

SE: Problems

AO: … litigation.  But it’s as I said, I think, to draw it back to the issue rather than getting into the weeds of legal practice, is that we have had a problem about counting in our elections.  And what you see at the polling station is really, is really a little bit uncontroversial: everybody sees it. What is more controversial is when it comes to collation. And again, going back into ancient history (for you young ones) I would say that in 1983, when the  election petition of, the Ondo State election petition came out, because they had declared one person as the winner, and we now acted for the person who says that he won. And he said, Look: up to level 13, the last level before the final collation, we all have the same thing signed by every party from 13 wards or whatever it was.  And then, when you do the arithmetic of these 13, the number get is not the number that was declared. Now again, it’s important because we just said: We’re not accusing anybody of forgery we’re not accusing anybody of crime. Because this was the difference between Anambra State which had the same problem and Ondo State. In Anambra State, they said: “They committed forgery they were criminals!” and so on, and you have to prove it beyond a reasonable doubt.  When we just say: Excuse me, just do the maths. And that …

RS: We’ve run out of time.

AO: I should actually … just let me just cut off my IDEAS section.  Just please remember to check us out on IDEAS radio www.ideasradio.ng and also follow us on Twitter, which is @ideasradiong.   Officially I’m bowing out of the IDEAS section. I’m not sure I’ve really talked about integrity and so on, but I think that what I would just say in closing is that it’s important for voters to assume integrity and go out and vote, rather than assuming lack of integrity and stay home.  Because as I always say, the vote that doesn’t get counted is the one that you don’t count, that’s the one that you can be sure will not be counted. Everything else, we try and do our best, but the one you don’t cast is not going to get counted.

SE: Ok, well, we need to take a break, come back and continue our conversations on Countdown 2019 …

RS: Before we go on break, can I just quickly say that listeners should please join us next week on IDEAS so that we can actually review the integrity of the process.

AO: Absolutely.  Absolutely.