28042019 - No delaying minimum wage, go ahead and pay, FG tells MDAs, states, others

2019 POLLS: CONTRADICTIONS IN POLITY
I see electoral
corruption amid loud
noise of fight against
corruption
— Nwabueze
Professor Ben Nwabueze (SAN), in this
piece, titled, ‘Incidence of Corrupt
Practices And Non-Compliance with
the Provisions of the Electoral Act during the
February/March 2019 general elections’,
writes on what he describes as contradictions
in the polity.
In addition to the decisive factors of violence
and the intimidating presence of armed
uniformed military men, another important
factor affecting the genuineness of votes
ascribed to candidates is corrupt practice and
non-compliance with the provisions of the
Electoral Act. This factor is important because,
like the factors of violence and the intimidating
presence of armed uniformed military men, it
determines the character of an election as a
democratic election, which may be here defined
as the exercise of a right guaranteed by law to
every citizen of the prescribed age to vote in
freedom for the choice of leaders at an election
fairly and impartially conducted, and to
exercise the right without interference by the
authorities, civil and military; it is important
for the additional reason that, as Olu Fasan
said in the Vanguard of 28 March 2019,
corrupt practice or rigging, in all its variegated
forms, breaches “the fundamental doctrine of
consent of the governed”, which deprives the
“emergent government the legitimacy and
moral right to govern.”
Nature And Effect of Corrupt Practices as
Contradistinguished from Non-Compliance
with the Provisions of the Electoral Act
It needs to be stated at the outset that
“corrupt practices” partakes of a nature and
effect altogether different from “noncompliance
with the provisions of the Electoral
Act”, with which it is juxtaposed by section
145(1) of the Act, which provides that “an
election may be questioned” on the ground,
inter alia, that it “is invalid by reason of corrupt
practices or non-compliance with the
provisions of this Act.” The juxtaposition of
corrupt practices with noncompliance in this
provision is a statutory recognition that they
are two different things and provide separate
grounds for questioning the validity of an
election. Corrupt practices at elections must
therefore be kept distinct from non-compliance
with the provisions of the Act.
First, non-compliance implies a failure
to do something which the law requires to be
done, or doing wrongly what the law requires
to be done, whereas corrupt practice implies a
positive act the doing of which is prohibited
by law; the latter is illegal and is often a
criminal offence as well, while the former is
ordinarily neither an illegality nor a criminal
offence. Second, an electoral malpractice or
corrupt practice is also not a “defect”. The side
note to section 146 of the Electoral Act 2006,
quoted below, reads: “Certain defects not to
invalidate election.” Although a side note is
not part of an enactment, it has an important
bearing on the interpretation of its meaning.
The word “defect” contemplates or at any rate,
it suggests, an irregularity. It is defined by New
Webster’s Dictionary of the English Language
as “fault; an imperfection”. It has therefore
nothing to do with an electoral malpractice or
corrupt practice, as defined later below. Section
146 (now section 139(1) of the 2010 Act)
should therefore be restricted in its application
to non-compliance not constituting a corrupt
practice. It provides as follows:
“An election shall not be liable to be
invalidated by reason of non-compliance with
the provisions of this Act if it appears to the
Election Tribunal or Court that the election
was conducted substantially in accordance
with the principles of this Act and that the non
compliance did not affect substantially the
result of the election” (emphasis supplied).
The fact that “corruption practices” is not
mentioned in this section, as it is mentioned in
section 145(1), shows that the law-maker never
intended section 146 to apply to corrupt
practices.
•Professor Ben Nwabueze
Third, the term “corrupt practices” is derived
from the word “corruption” which connotes,
according to the definition of it in Black’s Law
Dictionary, 7th Edition, “(1) depravity,
perversion or taint; an impairment of integrity,
virtue or moral principle. (2) The act of doing
something with an intent to give some
advantage inconsistent with official duty and
the rights of others.” In relation to an election,
the term means, therefore, a perverse,
dishonest, immoral, improper or illegal act or
practice intended to influence the election in
favour of a particular candidate sponsored by
a particular political party.
Whilst it may be a crime, as in the case
of the corrupt acts or practices made a crime
by sections 131 and 137 of the Electoral Act
2006, it has a meaning wider than that, and
embraces perverse, dishonest, immoral,
Improper or illegal acts or practices which,
though not made a crime by statute, are
intended to influence an election in favour of a
particular candidate sponsored by a particular
political party – an act may be illegal without
being a crime. This is what
makes corrupt practice at an
election, whether or not it is
made a crime by statute, so
inimical to free election. It
strikes at the very root of free
and fair election; it is
irreconcilably antagonistic
and hostile to an election in the
sense required by democracy.
The character of corrupt
practice at an election as
something which, by its
intrinsic nature, undermines
the quality of an election as a
free election. and therefore its
credibility and integrity, is
attested by the penalties
attached to conviction for it by
section 122( I) of the Electoral
Act 2002, where corrupt
practice is made a crime by
statute. The subsection
provided as follows (the
provision is omitted from the
2006 Act):
“Any person who is convicted
of an offence under this Part of
this Act which amounts to corrupt practice or
is convicted for aiding, abetting, counseling
or procuring the commission of such offence
shall, in addition to any other penalty, be
disqualified during a period of four years from
the date of his conviction from being – ¬
(a) registered as a voter or voting at any
election; and
(b) elected under this Act or if elected
before his conviction, from retaining the
office to which he was elected” (emphasis
supplied).
Thus, under section l22( I) of the Electoral
Act 2002 conviction for corrupt practice where
it is made a crime by statute nullified the
election of the person concerned, regardless of
whether or not the corrupt practice
substantially affected the result of the election.
The gravity of the penalties under section
On this matter of
corrupt practices
at elections, we
seem to have
gotten ourselves
enmeshed in the
web of two
contradictory
positions
122(I) above is a statutory recognition of the
nature of corrupt practice as a matter so
fundamental to the principle of free, fair and
credible election, so fundamental indeed that
conviction for corrupt practice made a crime
by statute nullified the election of a person
convicted of it.
There is something intriguing about the
omission of the provisions of section 122(1) of
the 2002 Act from the subsequent Acts of 2006
and 2010. The reason for its omission is not
stated, but it may not be unconnected with the
fact that nullification of an election strikes
greater fear and aversion in politicians than
criminal punishment – imprisonment or fine.
They would rather face the hazards of criminal
punishment than the perilous risks of
nullification of an election. Yet the abolition of
the provisions of section 122(1) above does
suggest a certain unseriousness, if not
hypocrisy, in our so-called drive to exorcise
corrupt practices from our electoral system.
The provisions of section 122(1) above should
be brought back for the greater deterrent effect
of nullification.
Corrupt practice must be
regarded as a matter
intrinsically “substantial” in
nature by reason of the fact
that it impairs the quality of
an election as a free election
and therefore its credibility
and integrity. It follows,
therefore, that corrupt
practice, if shown to have
occurred, need not be proved
to have substantially affected
the “result” of the election
under section 146(1) of the
Electoral Act 2006. Being
something intrinsically
substantial in nature, and
because it strikes at the very
root of free election and
thereby undermines its
integrity and credibility,
corrupt practice, if proved to
have occurred, has the effect
of invalidating an election by
its intrinsic force; it is
irrefutably presumed to have
substantially affected the
result of an election.
The first leg of the provision in section 146(1)
above, i.e. that “the election was conducted
substantially in accordance with the principles
of the Act” is also incompatible with the nature
of corrupt practice. An election featuring
corrupt practices on a massive scale cannot
reasonably or meaningfully be said to have
been “conducted” in accordance with the
principles of the Act; the principles underlying
the Act, being those of free, fair and credible
election, are excluded by corrupt practices
occurring on a widespread scale, which makes
it untenable to say that the election was
conducted substantially in accordance with the
principles of the Act.
In interpreting and applying section 146(1)
a distinction needs to be made between noncompliances
amounting to corrupt practice
and those not amounting to corrupt practice.
SUNDAY VANGUARD, APRIL 28, 2019, PAGE 11
The subsection applies only to the latter.
It is not, however, suggested that, being
antagonistic to free, fair and credible election
and being of a nature intrinsically substantial,
a single, isolated incident of corrupt practice
renders an election null and void. Its impact
on the “result” of an election is the function of
how perverse a particular corrupt practice is,
and how massive and widespread its incidence
is; in other words, corrupt practice, including
non-compliance amounting to corrupt
practice, is a ground for nullification if it is
proved to have been perverse in nature and
fairly massive and widespread in its incidence,
in which case it is irrebuttably presumed and
taken to have substantially affected the result
of the election, without further proof.
The question which the court is to consider is
not as to whether corrupt practice, by its
intrinsic nature, is antithetical or not to free
election (its utter incompatibility with free
election has the truth of an axiom), but as to
the amount of it, in terms of the degree of
perverseness of particular corrupt practices
and their spatial incidence, that renders an
election null and void. No doubt, the
determination of the question leaves
considerable discretion to the court, but, like
all judicial discretion, it must be exercised,
not by perverse legalism, but
judiciously and with due regard to
truth, justice and the Rule of Law.
The application of
section 146 of the Electoral
Act 2006 by the courts in
cases where corrupt
practices or electoral
malpractices are
complained of in
an election has
had the sad result
that the extensive
array of corrupt
practices of
g r e a t
perverseness
a n d
widespread
extent proved
t o
have occurred
in the Buhari v.
Obasanjo
Case, [2005]
13 NWLR
(Part 941 –
943), was
dismissed and the election sustained, because
such corrupt practices proved to have occurred
were not proved to have substantially affected
the result of the election – a perverse application
of the law.
The application of section 146 to the
complaint of corrupt practices in the Atiku
Abubakar v. Umaru Musa Yar’Adua Case,
(2008) 12 S.C. (Pt 11)1, produced a result no
less saddening. The petitioner in that case, Atiku
Abubakar, had averred, inter alia, as follows
in his petition:
(i) deliberate non-supply, under-supply
and late supply of electoral materials,
including ballot papers;
(ii) multiple voting, voting by people
not registered to vote, voting in private houses
and other unauthorized and undesignated
places;
(iii) voting was not by open secret
ballot, as prescribed by the Act, owing to
failure by INEC to erect polling booths in
most places, which resulted in the secrecy
of the ballot being violated;
(iv) stuffing of ballot boxes, ballot
boxes snatching, intimidation, use of
violence and threats, bribery, falsification
of results;
(v) Form EC8A series showing
scores of candidates were not signed by
presiding officers at the polling units nor
countersigned by party agents (except for
those of Umaru Yar-Adua’s party), as
required by the Act;
(vi) Counting of votes and
declaration of results were not done at the
polling units, as required by the Act; results
were instead collated at state level based
on “scores transmitted electronically from
polling units and/or local government
areas” across the nation;
(vii) Arbitrary allocation of scores
to candidates and falsification of scores.
The complaints listed above were dismissed
by the Court of Appeal on the ground that
“most of them appear trivial in character” –
i.e. non-substantial within the meaning of
section 146(1). Nothing perhaps betrays
more glaringly the predisposition of the
Court of Appeal to use section 146(1) as a
shield to protect infractions of the Act than
its dismissal of the Petitioners’ complaints
listed above on the ground that they are
“a logistic problem and not a defect”.
Admittedly, an act or omission to act
which would otherwise be condemnable
as a corrupt practice would not be so
regarded if it is due to accidental or
logistical reasons or other lawful excuse,
but not when it is deliberate or willful. as
the massive, widespread incidence of nonsupply,
under-supply and late supply of
ballot papers and other electoral materials
during the April 2007 presidential election
indisputably was.
The character of such deliberate or wilful
non-compliance as electoral malpractice or
corrupt practice is attested by making it a
criminal offence punishable with 12 months
imprisonment or NlOO,OOO fine or both.
•Read more on www.vanguardngr.com