By Bertram Nwannekanma and Ngozi Egenuka
The recent conviction of Professor Peter Ogban by a High Court in Akwa Ibom State for electoral offences has been described as a landmark decision in the nation’s jurisprudence.
Ogban, a professor of soil science, at the University of Calabar, who acted as the returning officer in the 2019 General Elections in Akwa-Ibom North-West Senatorial District was charged for manipulating, publishing and announcing false results contrary to section 123(4) and (5) of the Electoral Act, 2010(As Amended).
He was found guilty of fraudulent manipulation of election results of Oruk Anam and Etim Ekpo local councils, as well as announcing false results, and subsequently sentenced to three years in prison with an option of N100,000. 00 fine.
He had earlier told the court how the results of the election were falsified to give the All Progressives Congress (APC) an unfair advantage over the Peoples Democratic Party (PDP).
In one of those instances, over 5, 000 fake votes were added to the APC’s score in Oruk Anam, in the election where, the Minister of Niger Delta Affairs, Senator Godswill Obot Akpabio lost to the PDP candidate, a former deputy governor of the state, Obong Chris Ekpenyong.
To that extent, stakeholders see the judgment as worth celebrating, but are divided that the conviction might be an incentive rather than deterrence for electoral offences, considering it was a light sentence by the court.
Overview of Electoral Offences
The current legal regime of electoral offences can be found in Part VII of the Electoral Act, 2010 (as Amended), the said Part VII creates a total of 19 offences provided in sections 117 to 132.
Some offences are also created in others sections of the Electoral Act such as section 77.
The electoral offences range from misdemeanors in the process of voter registration, offences during the primary election of a political party, offences during the conduct of polls, voter impersonation, declaration of false result, bribery and voter inducement and exceeding the limit on electoral expenses etc.
But, taking a look at the list of electoral offences, a Senior advocate of Nigeria (SAN), Kemi Pinheiro, said as laudable and encompassing as the above offences appear to be, his first observation that most of the offences have an option of fine with the highest
penalty being imprisonment for 10 years and a fine of N10, 000,000.00 (Ten Million Naira Only).
According to him, it was not surprising that upon the conviction of Prof Peter Ogban, the highest sentence which the court could give was three years imprisonment with an option of fine in the sum of N100, 000.00 (One Hundred Thousand Naira Only).
“This is rather unfortunate having regard to the effect of electoral crimes in the society. Not only will an unpopular candidate be foisted on the people, taxpayer’s funds end up being wasted when those crimes are detected and proved in an election petition resulting in fresh elections being ordered, as was the case in the Akwa Ibom North-West Senatorial District. This is very sad,” he said.
Another important observation is that only the direct perpetrators of electoral crimes are envisaged in some of the provisions, the sponsors who are masterminds of electoral crimes are not covered by most of those sections.
In fact, the only time the candidate who sponsored the crimes was really highlighted was in relation to the offence of bribery and voter inducement under section 124 (6).
“Hence, though Prof. Peter Ogban has been convicted, the candidate on whose behalf the electoral results were manipulated and the false results declared still moves around freely and can still contest future elections, notwithstanding the fact that the Professor could not have on his own decided to manipulate the figures declared. He must have been induced to do so. His conviction should ordinarily set the tone for the prosecution of the candidate on whose behalf he acted but that is not the case based on the current state of the law. This is really sad,” Pinheiro observed.
In view of the foregoing, it is therefore not surprising that since 1999 till date, only a handful of convictions have been recorded despite the consistent recognition of electoral crimes in the general elections that have been held in the country since 1999.
In the report of INEC on prosecution of electoral offences as at 2012, only 482 prosecutorial cases were instituted, 24 convictions were secured and 167 of those cases were struck out for want of diligent prosecution.
Prof. Peter Ogban’s case is in fact reported as being the first in which a returning officer in the caliber of Prof. Ogban would be convicted.
Some of the instances of the commission of electoral offences have even come to light in several election petitions that have been determined, however because the election petition tribunal in which those cases have been decided have no criminal jurisdiction, the allegations raised on those electoral crimes were over looked.
See for example the decision in the case of Ogboru v. Uduaghan (2010) LPELR-3938 where the results of the governorship election of Delta State in 2007 were contested and chief amongst the complaints against the election was that results were announced in local governments where elections never took place and the declared winner had spent half the tenure in office as at the time the case was determined. It was held in that case as follows:
“The implication of the absence of these constitutive acts that define an election is that the votes which the third respondent returned for the first respondent on April 14, 2007 were not obtained through the due electoral process… The consequence is that since 2007, the said first respondent has been sojourning under the roof of a veritable house of cards; worse still, a house of cards erected on the slippery quicksand of electoral jiggery pokery.”
Despite the finding in that case that there was no election in those places where results were declared, no prosecution of the mastermind of the fictitious results declared was embarked upon but fresh elections were simply ordered and the same candidates participated in the fresh elections.
Offering perspective on the judgment, Pinheiro, who is the founding Partner, Pinheiro Legal Practitioners, said having regard to the current legal regime of electoral offences, it is doubtful whether the case of Prof. Peter Ogban will serve as deterrence.
“Take for instance paying a fine of N100, 000 (One Hundred Thousand Naira Only) for a heinous crime to subvert the will of the people when the bribe offered to induce such actions is worth over N10million.
He said because of the pervading level of poverty, will such perpetrators of electoral crimes not be motivated to even commit those offences knowing they will only pay a tithe or less of it to the state as fine if convicted at all?
In the circumstances, the learned silk said: “we must reconsider our current electoral offences law. The provisions of Part VII of the Electoral Act, 2010 (as Amended) must be overhauled. Punishment for electoral offences must not carry an option of fine and must be speedily and summarily tried. Some of the strict punishment, which must be introduced, should include nullification of the election of any candidate who has benefitted from or induced the commission of electoral crimes this should be added to their prosecution for the offence as principal offenders.
“New crimes such as instigating the filing of election petitions for the sake of extorting funds from declared winners as out of court settlement should also be introduced to discourage such practice which is now trending with the active connivance of some lawyers who should also be in appropriate cases reported to the Disciplinary Committee of the Nigerian Bar Association (NBA).”
He also called for an amendment to the 1999 Constitution of the Federal Republic of Nigeria, stressing that it is required for the sole purpose of vesting criminal jurisdiction on electoral petitions tribunal as specialized courts to summarily try and convict perpetrators of electoral crimes.
“It is only when our electoral laws and the Constitution are amended as suggested that the desired message will get to the electorate and the society at large, that should they get involved in electoral crimes, the law will take its cause against them,” he said.
Also, Senior Advocate of Nigeria (SAN), Sebastian Hon, said the conduct of credible and acceptable elections is supposed to be the foundation for anything called democracy.
The reason, he said, is plain enough: the citizenry elect their leaders through the ballot box.
According to him, since democracy itself is representative governance, the sacredness of the ballot then occupies a central, call it controlling, place in the democratic process. That’s how serious the voting process is supposed to be taken.
“Electoral fraud, therefore, is akin to treason or treasonable felony because the perpetrators are overthrowing the governmental will of the people.
“Even though I will not advocate for the death sentence, I will suggest stiffer measures, including but not limited to, at least 15 years imprisonment without an option of fine, plus embargo on engagement by the culprits in politics for at least 15 years after serving the jail term. If the perpetrators are civil servants, they should, in addition to the jail term, be dismissed from service without terminal benefits.
“These, in my opinion, will be sufficient deterrence in the meantime,” he added.
But, Senior Partner, Law Chest, Chijioke Ifediora, described the conviction of Prof. Ogban as a novel judicial progress with respect to voter fraud and electoral malpractices.
He explained that the essence of using academia for the election was because of the confidence reposed on them and their knowledge in computing results, so going against that by falsifying the result was a breach of trust.
He however noted the sensitive nature of time in the prosecution of electoral offence.
“Election petitions are time bound, in the sense that there are statutory and constitutional time limits for hearing and determining of election petitions for all elected offices.
“A situation where the final decision in an election petition is delivered by the Supreme Court or Court of Appeal depending on the office under contention, and it is decided that a particular candidate was validly elected while there is an ongoing criminal prosecution of an electoral staff or ad-hoc staff as the case maybe for electoral malpractice and voter fraud; and it is subsequently found that there was electoral malpractice and voter fraud for which the wrong candidate was unlawfully elected and declared winner, seeing that the Court is functus officio (decision once made cannot be revoked), what will be the remedy of the candidate whose mandate was stolen? Would an unelected individual who is riding on stolen mandate be allowed to represent the electorate?” Ifediora asked.
He noted that until INEC makes electoral malpractice less attractive, especially to ad-hoc staff, then will the nation would begin to make progress with elections.
“I believe it will be appropriate for criminal prosecution of electoral offences to have limited duration so as to avoid an unfair situation as this or on the other hand for Courts to give accelerated hearing on prosecution of electoral offences.”
But Chairman, Young Lawyers’ Forum, Ikeja Branch, Yusuf Nurudeen, noted that the conviction is a welcome development for the cleansing and sanity of the maturing electoral process in Nigeria.
According to him, the electoral system has regressed in recent years with the violent nature of state actors, the weakness of electoral body and the absence of a punitive system to discipline offenders.
“So, if Professor Ogban’s conviction is the first step in the direction of deterrence to electoral offenders and the Court putting effects to the provisions of Section 123 of the Electoral Act on punitive measures for dereliction of duty, I think it is a welcome development that must be applauded by all.”
He submitted that offences relating to electoral malpractices must be treated as treasonable felony because the will of the people at election has been subverted, and there would be absence of governance, in that, such people will never be responsible to the people but to the enablers of the electoral fraud.
Nurudeen recalled that there have been series of demand for a special court for electoral offences, which has not been yielded to by lawmakers because they were beneficiaries of the current dysfunctional electoral system, which has greatly subverted the wishes of the people.
He, however, noted that since the judiciary thrives on the principle of stare decisis, that is, precedence, the conviction will boost the morale and encourage judges of concurrent jurisdiction (of equal powers) to take on and give sound decisions on electoral fraud brought before them.
“I am of the firm view that the judgment of the High Court of Akwa Ibom State will be appealed. On appeal, it will offer the higher court to make affirmative or otherwise decisions on the corruption that have engulfed the electoral processes thereby boosting the jurisprudence when it comes to the criminal justice system of our elections like they have done in the civil cases (elections petitions).
“To make the judicial system more effective, my suggestion is that a Special Court should be established to handle all criminal/electoral malpractices, such that cases can be dispensed with within a period of six months. Cases such as commoditisers of votes should be given rapt attention. Both the seller and the buyer should be prosecuted. Same should go for illegal possession of Personal Voter Card (PVC), double registration, to mention a few,” he added.