Seeking legislative intervention for distorted electoral calendar

Exploring what led to off-season elections, GIFT HABIB writes on the need to amend the Electoral Act to ensure that the judiciary dispenses with all political cases before the inauguration of elected officials

Before the November 11 governorship elections in Imo, Kogi, and Bayelsa states, the debate on the rationality of off-season elections has never been as loud as it currently is among stakeholders since the first one was held in 2006. While many think such off-calendar elections are inevitable, others believe they incur more expenses and eat deep into the nation’s resources.

Nigeria has eight off-season governorship elections which include Anambra, Bayelsa, Kogi, Edo, Ondo, Ekiti, Osun, and Imo states. These states are assigned different timetables to elect their governors.

Currently, all off-cycle elections in Nigeria, especially when tied to contests managed by the Independent National Electoral Commission, are governorship polls. Section 180 (2) of the Nigerian Constitution specifies that a governor vacates the office four years from the date they first take the oath of office.

In most cases, especially when an already serving governor wins at a tribunal or court, the term continues since the governors would have been sworn in during the originally determined date.

However, if the court’s decision leads to a new governor taking office, especially if this person belongs to a party different from the incumbent governor, this leads to a new swearing-in date to ensure that the term does not exceed or fall short of the four-year term specified in the constitution.

The other examples of off-cycle elections are largely local government elections, which fall under the purview of the State Independent Electoral Commission and are not necessarily tied to the federal elections that the Independent National Electoral Commission supervises.

Off-season elections are polls held outside the timetable of general elections and this could happen for varying reasons. They are held when there is a need to fill a vacant position due to death, resignation, impeachment, or other reasons.

Since 1999 when Nigeria returned to democracy, general elections have been held every four years, but several reasons have distorted this arrangement, leading to some states having governorship polls outside this arrangement. In the case of Nigeria, court rulings have primarily been responsible for this distortion.

Off-season elections began in Nigeria in 2006, seven years after the beginning of the Fourth Republic, when Peter Obi, then of the All Progressives Grand Alliance, was sworn in as the governor after contesting the result of the 2003 general polls that favoured Chris Ngige, then of the Peoples Democratic Party in Anambra State.

Obi had to begin a fresh term of four years, automatically pushing Anambra State out of the regular four-year cycle. For this reason, Anambra’s next governorship election, going by the four-year cycle, would be in 2025, whereas Nigeria is due to hold general elections in 2027.

In Imo State, for example, after the 2019 polls produced former Deputy Speaker of the House of Representatives, Emeka Ihedioha, as governor, a Supreme Court ruling on January 14, 2020, ordered INEC to withdraw the certificate of return issued to him and give a fresh one to Hope Uzodimma, who it declared as the winner. The ruling implies that Uzodimma’s tenure started counting in 2020, and he will only end his first four-year tenure when another swearing-in happens in 2024.

On April 14, 2007, Kogi State conducted its governorship election; in the end, Ibrahim Idris was declared the winner. Idris was running for the second term while Abubakar Audu of the All Nigeria Peoples Party was an opponent. After Idris was declared winner, Audu told the tribunal that his name had been wrongfully excluded from the list of candidates that were supposed to contest at the polls. He pursued the case till the Appeal Court.

Although the election was nullified, calling for the conduct of a fresh election, Ibrahim Idris won the election. On March 29, 2008, he was re-elected as the Governor of Kogi State. Subsequently, the state held its off-cycle elections in 2012, 2016, and 2020.

Bayelsa State began to conduct off-cycle elections in 2007, when Timipre Sylva, who was at that time, the governorship candidate of the PDP, was declared the winner of the election. What led to disruption in the state’s electoral cycle was the court case instituted by Ebitimi Amgbare, the Action Congress of Nigeria candidate, who challenged the election outcome at the tribunal.

Amgbare lost at the tribunal and approached the Court of Appeal to challenge the initial ruling. He won at the appellate court as the court ordered INEC to conduct a fresh election in the state in 2008. The conduct of the new election disrupted the calendar, even though Sylva won the freshly conducted election and returned to office.

Ondo State’s tale is not different from other states where one of the contestants approached the court after the 2007 governorship election. Olusegun Agagu, the incumbent governor and candidate of the PDP, sought re-election and won. The re-election was however challenged in court by Olusegun Mimiko, the candidate of the Labour Party at that time.

In 2009, the tribunal and the Court of Appeal acknowledged the election and ruled that Mimiko was the actual winner of the polls. He was sworn in as the governor in February 2009. Afterwards, the state conducted elections in October 2012, November 2016, and October 2020. The next election will be held in 2024.

Recently, off-cycle elections were conducted in Bayelsa, Imo, and Kogi states on November 11, 2023.

This round of elections made it the second time governorship elections have been held in the country this year after the March polls that produced new governors in 19 states of the federation.

INEC approved the final list of candidates for the three elections in June 2023 as it marked the first instance of the commission conducting three off-cycle governorship elections simultaneously across different geopolitical zones.

The commission noted that the list was approved in line with the Electoral Act 2022 which required the publication of the list not later than 150 days to the election.

These off-cycle governorship elections were of significant importance, as they came after the February general elections that saw the emergence of President Bola Tinubu.

In all three states, incumbency was a major factor, with Hope Uzodimma of Imo State winning by a wide margin of 540,308 votes, his closest challenger, Samuel Anyanwu of the PDP got 71,503 votes. Uzodimma had claimed that the outcome of the election was a vindication that he truly won in 2019, and had won again leading in all the state’s 27 local government areas.

In Bayelsa State, the incumbent Governor Douye Diri was declared the winner with 175,196 votes to defeat his closest rival, Sylva of the APC, who polled 110,108 votes (not so wide a margin in this case).

In Kogi State, Usman Ododo, the anointed candidate of the incumbent and outgoing governor, Yahaya Bello, got 446, 237 votes to beat Muri Ajaka of the Social Democratic Party who garnered 259,052 votes.

Meanwhile, there is a popular assumption that the off-cycle sub-national elections should be better governed and more peaceful than general elections. This position is premised on the notion that the limited geographical and demographical scope of such elections offers the national electoral body, security agencies, and other key actors in electoral governance the opportunity to concentrate resources and energies in a given jurisdiction for maximum efficiency.

However, off-cycle elections in Nigeria have been triggered by a series of events and occurrences.

Electoral violence often leads to the cancellation of votes from affected polls, and according to the INEC Regulations and Guidelines, the “Margin of Lead Principle” states that the commission cannot declare a winner if the number of cancelled votes can mathematically affect the outcome of the election.

The way that INEC can resolve an inconclusive election is to conduct a supplementary election within 21 days of the initial polls. In some cases where this is successfully conducted, contestants who didn’t emerge as winners often go to court. Prolonged court debates and inconclusive results often eat into the time that one is supposed to serve his term.

Aside from violence, The Election Network acknowledged, “Elections in Nigeria are currently the second most expensive elections in the world, after India. The plethora of existing off-cycle and by-elections are causing the already high election costs to surge.”

Stakeholders have proposed an amendment to the constitution to prevent elections outside the regular cycle. On November 11, 2023, former President Goodluck Jonathan called for an end to off-season elections in Nigeria. According to him, with the trend of off-season elections, there may come a time when the presidential election will also be held off-season.

He said, “I get worried about the issue of off-season elections. I will use this unique opportunity to plead with the National Assembly that we need to block these off-season elections. It is very odd. It is not a global best practice. A country can elect its people at different times, like America and some countries, but not everybody at the same time. But anytime they go to an election, they elect everybody.

“If we continue with this trend of off-season elections based on the interpretation of our laws by the judicial officer, in that case, we will come to a time when the presidential election in Nigeria may be off-season.”

Referring to the United States of America, Jonathan said, “Everybody knows when the American elections will be held, and that’s become standard practice.”

Speaking with Saturday PUNCH, a retired ambassador, Ogbole Amedu-Ode, noted that the off-cycle elections could be taken off with the amendment of Nigeria’s constitution as it incurs more expenses and resources.

“The contemporary phenomenon of off-cycle elections as mentioned earlier is a consequence of after-election litigation by political actors and stakeholders that reared its head after the 1999 general elections in a judicial system/process that didn’t at that time have a time limit to the disposition of such election inspired legal challenges.

“These off-cycle elections have led to more expenses and resources by the electoral body and it has the attribute of being in isolation, therefore, costing more and exacting more efforts from INEC. It is, therefore, important that we take extra steps which will bring these off-cycle election states in the time frame with other governorship elections but with the adjustment of the constitution,” Amedu-Ode stated.

A political analyst, Busari Dauda, blamed the country’s slow judiciary system for prolonging the delivery of election cases.

“World over, the judiciary is regarded as the last hope of the common man. What this means is that the judiciary offers hope whenever parties are engaged in disputes. But whenever there is a delayed justice, the common man is left to lick his wounds silently. Thus, the importance of the timely delivery of justice cannot be overemphasised. Therefore, when the judiciary fails to provide justice promptly, it leads to frustration and a loss of faith in the entire system.

“The judicial system in Nigeria has for long been drawn into the debates of delayed delivery of election cases. While the judiciary cannot be exonerated for the delays, the judicial officials need to provide a level playing ground that ensures election cases are promptly dispensed with before inauguration,” Dauda explained.

Giving the way forward, the political analyst said, “But the timelines may be beyond the power of the judiciary. It has to be a collaborative process that involves the judiciary and the legislative arms of government. While the judiciary adjudicates, the legislatures set the ground rules. The Electoral Act needs to be adjusted to ensure that electoral cases are closed before the inauguration of candidates. This will ensure that the elected officials are set to work immediately without being distracted by court cases. It will also create a level playing field for all the candidates by building confidence in the system.”

In his opinion, a legal practitioner, Williams Akanbi, said it was practically impossible for off-season elections to be eradicated.

Akanbi emphasised, “Let us even agree that the Electoral Act is amended and there are provisions for that, but what about a situation where a governor dies or was impeached among others, that could change the time of the election to another time different from others?

“I do not think the Electoral Act amendment should be a lasting solution to this off-cycle election issue. It may be a good thing that all court matters concerning the election are dealt with and trashed out before the inauguration but it is not the final solution.

“I think that political positions should not be made too juicy. Anybody wants to do anything to get any political appointment or position because Nigeria has made politics too juicy. People will want to rig the elections. If political positions are solely for service, there will not be a do-or-die affair in politics.”

The Chairman, Transition Monitoring Group, Auwal Musa, noted that political parties and politicians were to be blamed for off-cycle elections, advising the judiciary to conclude its judgments before swearing in a candidate.

“Political parties, politicians, and the judiciary have continued to remain a serious obstacle towards ensuring that election and electoral processes are conducted democratically and transparently. Right from party primaries, there is a huge dispute as a result of the lack of internal democracy and members’ grievances. When a political party decides to impose a candidate, whose imposition is not welcomed, other members will go to court and stir the whole process which will create a situation where the election will not hold along with other governorship elections because of the court lingering situation.

“If judgments are pronounced before anyone is sworn in, it will help to stop off-season elections because of its financial implications. Political parties should play their roles and ensure that they follow due process. The judiciary must conclude its work before anyone will be sworn in.”

However, the Chief Executive Officer, Youth Hub, Rotimi Olawale, believed that “Off-cycle elections are welcoming development. If well organised, allows INEC to focus more on just a few elections and be able to mobilise the necessary and required infrastructure both technical and human resources to prosecute a good election.”