An Overview OF the legal and legislative framework for the prosecution of electoral offences in Nigeria.

By Audi Rahma Salihu

For Starlion Legal

Introduction

Nigeria reclaimed its independence from Britain in 1960 and its elections have been overseen by a permanent Commission, like those of the majority of former British colonies.

An election management authority was established for each transition programme. The foundation of democracy is comprised of free, fair, and effective elections as well as a system free from corruption. These elements support the legitimacy, representativeness, and constitutionality of the government. Contrarily, it is futile, unjustified, and unconstitutional to interfere with the electoral process by breaking the electoral law in order to attain political power.

There has been considerable debate as to whether the existing legal framework for the prosecution of electoral offenders as encapsulated in the Electoral Act, 2022(as amended) is appropriate and adequate for the arrest, investigation and prosecution of electoral offenders. There has also been considerable debate as to the capacity and willingness of the nation’s national electoral management body, Independent National Electoral Commission (INEC), to prosecute electoral offenders in a professional and ethical manner. Debates are also ongoing as to the willingness of some electorates to act within the compass of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Electoral Act, 2022(as amended) to win elections and do away with fraudulent means and ways of doing the same.

These debates are hinged on the fact that the refusal, inability or incapacity of the INEC to prosecute electoral offenders encourages electoral impunity, voter apathy and the gradual disengagement of the Nigerian people from the electoral process as some of them believe that electoral fraud and malpractices renders their votes meaningless and even if they vote, their votes may not count. The debates are also hinged on the fact that if nobody is prosecuted successfully, it may then be more profitable to engage in electoral fraud and malpractices.

Since 1999 when democratic government was restored in Nigeria, many efforts have been made to institute a credible electoral legal framework for the country. These efforts are manifest in the Constitution, Electoral Acts and Electoral Guidelines passed in the last two decades. Thus, in addition to the relevant portions of the Constitution (and a number of its Alteration Acts) related to elections, there have been four different Electoral Acts passed in 2002, 2006, 2010 including the most recent Electoral Act of 2022, all intended to strengthen the legal framework of elections and their processes.[1]

In exercise of its powers under the Constitution, the INEC has also passed series of electoral guidelines at different times aimed at facilitating the smooth conduct of national elections. The current legal framework of elections in Nigeria is founded on the Constitution of 1999 (as amended), the Electoral Act, 2022, Regulations and Guidelines for Conduct of Elections, 2022 and the Code of Conduct & Rules of Engagement for Security Personnel on Electoral Duty, 2020.

These normative instruments cover the Electoral System adopted in Nigeria, the Electoral Process and Election Security. While the Constitution is the foremost legal instrument on elections in Nigeria, it is followed closely in hierarchy by the Electoral Act which in turn empowers INEC to provide Guidelines and Regulations for the conduct of elections, as well as the Code of Conduct applicable to security personnel during elections.[2]

Electoral Offences

The commission of an electoral offence, which carries a criminal penalty of imprisonment, a fine, or both, includes any act or omission intended to gain political power without legal authority. Hence, in Nigeria, electoral offences are crimes done in furtherance of an elective office. Electoral offences in Nigeria are defined by the Electoral Act 2022 (as amended). As a result, in this paper, “electoral offences” refers to acts, omissions, and behaviour that are illegal under the Electoral Act and designated as such, particularly those that were formed under Part VII of the Electoral Act of 2022.

Public offices, candidates, political parties, associations, and people could all be considered actors who may violate the Electoral Act of 2022. The liability assignment portion of the offence must account for all prospective actors, including those aiding and abetting in the crime or omission against the Act, in order to effectively prohibit and discipline electoral offences by any of these groups. While determining such liability assignment, it is possible to take the goals of the offenders into account.

Part VII of the Electoral Act, 2022(as amended) creates different categories of electoral offences and prescribes punishment for them.

There are pre-election offences and Election Day offences. The Registration of Voters, submission of list of candidates for elections, campaigns and the conduct of the campaigns are listed as pre-election matters, and offences for their contravention created and sanctions imposed.

Pre-Election Offences

Offences relating to voters’ registration, per Section 114 attracts a maximum fine of N1,000,000.00- or 12-months imprisonment or both.[3] Offences in respect of nomination, etc in section 115(1) carries a maximum term of imprisonment for 2years while offences in respect of nomination under section 115(3) is liable on conviction to a maximum fine of N50, 000,000 or for a term of imprisonment of not less than 10years or both.[4]

Section 116 provides that disorderly behavior at political meetings carries a maximum fine of N500,000 or imprisonment for 12months or both; improper use of voters’ cards[5] attracts a maximum fine of N1,000,000 or imprisonment for 12months or both; improper use of vehicles (Section 118) attracts a maximum fine of N500,000 or to imprisonment for six months or both;

Offences of buying or selling voters cards in contravention of section 22 attracts a fine not exceeding N1,000,000 or imprisonment not exceeding two years or both.[6] Any person who uses duress or threats of any kind to cause or induce any person or persons generally to refrain from registering as a voter or voters or in any way hindering another person from registering as a voter commits an offence and is liable on conviction, to a fine not exceeding N1,000,000 or imprisonment not exceeding 3 years.[7]

Section 29 of the Act relates to the submission of list of candidates and their affidavit by political parties, while a political party which presents to the Commission the name of a candidate who does not meet the qualifications stipulated in section 29 commits an offence and is liable on conviction to a maximum fine of N10,000,000 while a person who nominates more than one person for election to the same office in contravention of section 30 commits an offence and is liable on conviction to a maximum fine of N100,000 or imprisonment for 3 months or both.[8]

Section 74 of the Act guarantees access to election documents by parties in an election petition and by section 74(2) any Resident Electoral Commissioner who willfully fails to comply within 14 days of an application for access to such documents commits an offence and is liable on conviction to a maximum fine of N2, 000,000 or imprisonment for a term not exceeding 12 months, or both.[9]

By section 78 of the Electoral Act, a political party or association which contravenes the provisions of section 227 of the Constitution of the Federal Republic of Nigeria which prohibits retention, organisation, training or equipping quasi-military organisations commits an offence and is liable on conviction to a fine of N5,000,000.00 and N7,000,000.00 for any subsequent offence; and N500,000.00 for every day that the offence continues while a person who aids and abets a political party to contravene section 227 commits an offence and is liable on conviction to a fine of N5,000,000 or imprisonment for a term of 3 years or both.[10]

Section 86 of the Act criminalizes the refusal of political parties to provide information or clarification to the Independent National Electoral Commission in connection with their activities and conviction attracts a fine of not more than N1, 000, 000.00 while offences relating to finances of political parties in section 85 and 86 of the Act attract the same penalty. Section 88 of the Act criminalizes contravention of limitation on election expenses.[11]

Section 88(9) of the Act also provides that no individual or other entity shall donate more than one million Naira (N1,000,000.00) to any candidate and any individual who knowingly contravenes the section shall on conviction be liable to 1 percent of the amount permitted as the limit of campaign expenditure under this Act or imprisonment for a term not more than 12 months. Moreover, by section 88(11) of the Act, any accountant who falsifies or conspires or aids a candidate to forge or falsify a document relating to his expenditure at an election or receipt or donation for the election or in any way aids and abets the breach of the provisions of section 88 of the Act commits an offence and on conviction is liable to a fine of N3,000,000 or imprisonment of 3 years or both.[12]

Election Offences

Part VII of the Electoral Act, 2022(as amended) also creates separate offences and prescribes penalties for them.

Impersonation and voting when not qualified[13] attracts a maximum fine of N500,000 or to imprisonment for 12 months or both; dereliction of duty[14] by any officer appointed under the Act or by any Polling Officer attracts a maximum fine of N500,000 or imprisonment for 12 months or both.

A Returning Officer or Collation Officer who delivers or causes to be delivered a false Certificate of Return shall be liable to 3 years imprisonment without an option of fine and the same punishment applies to any person who delivers or causes to be delivered a false Certificate of Return knowing it to be false[15]

Bribery and conspiracy[16] attracts a maximum fine of N500,000 or imprisonment for 12 months or both; requirement of secrecy in voting[17] and contravention attracts a maximum fine of N100,000 or imprisonment for 6months or both; wrongful voting and false statements[18] attracts a maximum fine of N100,000 or imprisonment for six months or both.

Voting by unregistered person[19] attracts a maximum fine of N100,000 or imprisonment for six months or both; disorderly conduct at elections[20] attracts a maximum fine of N500,000 or imprisonment for 12 months or both;

Offences on Election Day[21] attracts a maximum fine of N100,000 or imprisonment for six months or both;

Consequently, anybody who snatches or destroys any election material shall be liable on conviction to 24 months imprisonment[22]

 A conviction on groundd of undue influence[23] warrants a maximum fine of N100,000 or imprisonment for 12 months or both.

The use of threats, force, violence or restrain during election exercises [24] attracts a maximum fine of N1,000,000.00 or imprisonment for 3years.

Conclusion and Recommendation.

Despite the creation of these offences by the law and the sanctions provided for them, few offenders are apprehended and prosecuted by the various security agencies in Nigeria. The consequence is that the offences remain in the statute books as mere offences while candidates engage in competitive rigging.

From the perspective of political representation, committing electoral crimes to gain political power means that the will of voters is undermined and the results do not represent their votes, i.e. their choices. As a result, “winners” may not see themselves as representatives of the electorate, but they may see themselves as those who have contributed to the undermining of their interests and the public will.

The institutionalization of violations of voting rights as a result of the impunity of political parties underscores the urgent need for electoral law reform, especially with respect to electoral crimes. The essence of electoral law is to establish legal standards and processes for forming governments according to the Constitution.

My concluding thought is that the prospects of free, fair and credible elections in Nigeria have been brightened by many of the innovative provisions of the Electoral Act. However, in order to consolidate the gains, the legal framework of elections needs to be fine-tuned to eliminate judicialization of politics and militarization of the electoral process of the country. If this goal fails by not updating electoral laws and by holding all culprits, especially political parties, accountable and imposing sanctions, the result is democratic failure. 

Bibliography

Akorah, C.R. (no date) “ELECTORAL OFFENCES AND DEMOCRACY IN NIGERIA,” Journal of Public and Private Law, UNIZIK, 10(2020), pp. 30–31.

Constitution of the Federal Republic of Nigeria

Omoregie, E.B. (2022) Legal Framework Of Elections And Election Security In Nigeria.

Section 29 Electoral Act (2022).

Section 74 Electoral Act (2022).

Section 78 Electoral Act (2022).

Section 86 Electoral Act (2022).

Section 91(9) Electoral Act (2022).

Section 114 Electoral Act (2022).

Section 114 (h), Electoral Act (2022).

Section 115(1) Electoral Act (2022).

Section 116 Electoral Act (2022).

Section 117 Electoral Act (2022).

Section 117(c), Electoral Act (2022).

Section 119 Electoral Act (2022).

Section 120 Electoral Act (2022).

Section 121 Electoral Act (2022).

Section 122 Electoral Act (2022).

Section 124 Electoral Act (2022).

Section 125 Electoral Act (2022).

Section 126 Electoral Act (2022).

Section 126(4) Electoral Act (2022).

Section 127 Electoral Act (2022).

Section 128 Electoral Act (2022).


[1] Akorah, C.R. (no date) “ELECTORAL OFFENCES AND DEMOCRACY IN NIGERIA,” Journal of Public and Private Law, UNIZIK, 10(2020), pp. 30–31.

[2] Omoregie, E.B. (2022) Legal Framework Of Elections And Election Security In Nigeria.

[3] Section 114 Electoral Act (2022).

[4] Section 115(1) Electoral Act (2022).

[5] Section 117 Electoral Act (2022).

[6] Section 22 Electoral Act (2022).

[7] Section 128 Electoral Act (2022).

[8] Section 29 Electoral Act (2022).

[9] Section 74 Electoral Act (2022).

[10] Section 78 Electoral Act (2022).

[11] Section 88 Electoral Act (2022).

[12] Section 91(9) Electoral Act (2022).

[13] Section 119 Electoral Act (2022).

[14] Section 120 Electoral Act (2022).

[15] ibid

[16] Section 121 Electoral Act (2022).

[17] Section 122 Electoral Act (2022).

[18] Section 126 Electoral Act (2022).

[19] Section 124 Electoral Act (2022).

[20] Section 125 Electoral Act (2022).

[21] Section 126 Electoral Act (2022).

[22] Section 126(4) Electoral Act (2022).

[23] Section 127 Electoral Act (2022).

[24] Section 128 Electoral Act (2022).

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