By Mike Ozekhome

INTRODUCTION

Democracy has become globally accepted by the international community as the system of government applicable to a modern state. Election, being the instrument through which inclusive and effective representative leadership is constituted, is the lifeblood of modern representative democracy. This underscores the indispensability of credible elections, for just as elections impact on governance, so also governance impacts on electoral conduct. The issue of free and fair elections is a recurring decimal in Nigeria’s attempts at sustained democratic governance. Several problems are associated with conduct of elections in Nigeria. According to the Institute of Democracy and Electoral Assistance (IDEA), the electoral process in the country faces many administrative, political and attitudinal problems that have consistently challenged meaningful, open and democratic elections in Nigeria. This is sometimes taken as failure of the electoral system and practice of politics in the country. Nigeria merely practices Electionocracy – a system whereby Nigerians turn up at a 4 year interval ritual to elect or select their leaders.

There is therefore, the need to inquire into whether the electoral system has failed, the extent to which it has failed and factors responsible for its failure. I will here avoid the temptation of engaging in polemics and chronicles of the ills of specific elections in Nigeria. My approach is to have a robust and balanced discourse that can contribute to the pool of knowledge of how to overcome elections malpractices and problems associated with governance. How do we achieve good governance by the rule of law through a credible electoral process. What is the missing link in the process, rule of law, leadership, clean electoral process, good governance and development? Where did we get it wrong again? What are our recommendations as well as the way forward towards the 2023 general elections.

CONCEPTUAL FRAMEWORK

A number of terms, although commonly used, have to be defined they are;

Election, electoral system, electoral process and credible electoral process, and Rule of Law.

ELECTION AND ELECTORAL PROCESS

“Election” deals with means by which representative democracy is effected. It is a process, a system and a procedure – all combined. It is less of a single event, but more of a process. Election is regarded as the formal process of selecting a person for public office or accepting or registering a political proposition by voting. It is a process by which leadership is instituted and political mandate and authority are conferred. Thus, election is seen as a process of choosing a leader, leaders, parliament, Councilors and other representatives by popular votes. By this process, the electorate is provided with freedom to choose their leaders and to decide on public policy.

Election, ideally, is a process of guaranteeing popular participation in governance by citizens. An electoral system is a system which allows institutional procedures for the choosing of office holders by legally qualified persons. This includes a “complex of rules and regulations that govern the selection of office holders”. According to Umezulike, “The electoral process … entails the selection or election of people into positions of leadership. The electoral process comprises all the constitutional procedures, arrangements and actions involved in the conduct of elections. It includes the suffrage, the registration, the right to contest elections, electoral competition between rival political parties, the body charged with the conduct and supervision of election, the method of selection of candidates, method of voting, the actual conduct of election, the determination of results, trials and determination of election disputes, electoral malpractices and their consequences”.

“Electoral process” thus refers to the series of laws, rules, guidelines, actions, operations, activities, changes and methods by which opportunity is given to legally qualified citizens to participate in the choice of their leaders and decide public policy. An Electoral process is said to be credible when it is free, fair, transparent and possesses integrity; gets the right people into power, and guarantees the provision of basic rights, amenities, security and development for poor individuals and communities in Nigeria.

RULE OF LAW

The rule of law is put into effect through a constitutional system by which power is separated and balanced among three branches of government. “Rule of law” is a philosophy of both ancient and modern times. Exponents include Plato, Aristotle, Bracton, Montesquieu, John Locke and Sam Rutherford. It found expression in the Magna Carta (1215); the French Revolution (1879); the American Declaration of Independence (1770); and the Bolshevik Revolution (1917), as well as in the Constitutions of several modern states.

The modern formulation of the rule of law was based on the constitutional theory of Albert Venn Dicey, Professor of English Law at Oxford University, wherein he devoted a large part of his book, Law of the Constitution 1885. There, he identified three characteristics of the rule of law namely:

“First it means, the absolute supremacy of predominance of regular law as opposed to the influence of arbitrary power and excludes the existence of arbitrariness or even of void discretionary authority on the part of the government.
Secondly every man whatever be his rank or condition is subject to the ordinary laws of the realm and amenable to the jurisdiction of ordinary tribunal (i.e. courts).

Thirdly whereas in many countries private rights such as freedom from arrest are sought to be guaranteed by a statement in a written Constitution of the general principles relating thereto in England, these rights are the result of court decision in particular cases which have actually arisen”.

In his Introduction to the study of “Man and Constitution”, Dicey stated:
“…in the first place, the absolute supremacy or predominance of regular laws, as opposed to the influence of arbitrary power, and excludes the existence of arbitrariness, of prerogative, or even wide discretionary authority on the part of the government, Englishmen are ruled by the law, and by the law alone, a man may with us be punished for nothing else. It means again equality before the law or the subsection of all classes to the ordinary law of the land administered by the ordinary law courts. The rule of law in this sense excludes idea of any exception of officials or others from the duty which govern other citizens or from the jurisdiction of the ordinary tribunals”.

The International Commission of Jurists made efforts to give the rule of law effective meaning which was actualized in the Declaration of New Delhi 1959; and which was reaffirmed in a similar conference held in Lagos in 1961, with special reference to Africa as follows:
“The rule of law is a dynamic concept which should be employed to safeguard and advance the will of the people and the political rights of the individual and to establish social, economic educational and cultural conditions under which the individual achieve his dignity and realize his legitimate aspirations in all countries whether dependent or independent”, and finally declared in Lagos conference:
(i) That in order to maintain adequately the rule of Law all governments should adhere to the principle of democratic representation in their legislatures.
(ii) That fundamental human rights especially the right to personal liberty should be written and entrenched in the constitution of all countries and such personal liberty should not in peace time be restricted without trial in a court of law”.

The concept of the Rule of Law has also in recent times been endorsed by world bodies. For example, Article 25 of the International Covenants on Civil and Political Rights, 1966, provides:
“Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:
to take part in the conduct of public affairs, directly or through freely chosen representatives; to vote and to be elected at genuine periodic elections, which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; to have access, on general terms of equality, to public service in his country”.

This connotes the participation of citizens in the affairs of governance of their countries either directly by representation and which involves electing the representatives in free and fair elections.

The basic principles of rule of law include superiority of law to arbitrariness. By this, all individuals and institutions, public and private, and the State itself, are held accountable to the law, which is supreme. Rule of law is further embedded in constitutionalism, that is, restraint of governmental power, to prevent those in authority from being corrupted by power. Another tenet of rule of law is safeguard and advancement of the will of the people. This is achieved by requirement of adherence to the principle of democratic representation. Equal enforcement and equality before the law constitute a central tenet of rule of law. Rule of law therefore presupposes adherence to due process. It recognizes and guarantees of the political rights of the individuals. This principle allows for the guarantee and safeguard of fundamental freedoms and liberties of people. Rule of law is also further encapsulated in independent adjudication of the law, fairness in the application of the law, access to justice, and the ability of people to seek and obtain a remedy through informal or formal institution of justice. Separation of powers and participation in decision-making are other components of rule of law.

There are elaborate provisions in the Constitution of the Federal Republic of Nigeria, 1999 (as amended) that deal with, and guarantee the observance of the rule of law in the country. Nigeria is a signatory to various International Conventions, Treaties and Charters, of which promote and sustain elements of the rule of law. There is also a plethora of judicial decisions on applicability of the principles of rule of law in respect of the country’s constitutional democracy.

The rule of law is the very antithesis of arbitrary and unbridled government power. It brings reason, fairness, and equality to the law. In virtually all nations today, the rule of law finds its quintessential expression in constitutional provisions which state that no person shall be deprived of his life, liberty, or property without due process of law; nor be denied the equal protection of the laws. These provisions, which are the direct descendants of the Magna Carta, establish the rule of law as the constitutional right of all persons. (To be continued).

THOUGHT FOR THE WEEK

“I believe that democracy is about values before it is about voting. These values must be nurtured within society and integrated into the electoral process itself”. (Tzipi Livni).