Why INEC can’t prosecute electoral offenders – Tawo
Tawo Eja Tawo (SAN) in this interview, argues that the Independent National Electoral Commission (INEC) lacks the powers to prosecute electoral offenders. He also spoke on the creation of special courts to fight corruption, among other issues. Excepts:
As the 2019 election draws close, what is the way forward on the procedure between INEC and the National Assembly on the Electoral Act sequence of elections?
The constitution has made INEC independent when it comes to election matters; they derive their powers from the constitution. That same constitution allows the National Assembly to make laws because the Electoral Act is an Act of the National Assembly and it has made provisions on how INEC must run its affairs. Where the provision is inconsistent with constitutional provisions or tries to take away the independence of INEC, that provision becomes null. So, the constitution has given INEC the powers to conduct the election, which includes regulation. And that is why they make guidelines and policies on election.
A colleague was saying there is an amendment which says that INEC must carry out its duties and functions in accordance with the Electoral Act, but I have not seen that. If there is anything like that then the National Assembly can have the power to change election sequence, but where there is none, it cannot.
Why does it appear that despite the independence of INEC, it has not prosecuted any election offences like ballot box snatching and vote buying?
INEC has no prosecutorial powers. If anybody had committed an electoral offence, the matter should be investigated by the police and then the Ministry of Justice will prosecute. Where there is no complaint, and no report, what do you expect them to do. I know that INEC has a monitoring unit, but it has to work hand in hand with other agencies like the police and security services. INEC cannot work alone; theirs is to make report to the appropriate agency or security agency to investigate the matter and the Ministry of Justice will prosecute. In that light, it is not just INEC that has failed, the government and security agencies have also failed because when these monies are being distributed the police and other security agencies are there. They have the power to arrest, but do they do that? They don’t, instead they look the other way. Why are they there if not to maintain law and order? Even though attempts have been made to arrest and when they do the powers that be order their release.
Former Deputy Senate President, Ibrahim Mantu confessed recently that political parties ‘take care of security agencies’ before elections. Could this explain why they don’t arrest?
Yes. So, would you put the blame on INEC alone? No, it is the system we operate and embodiment of a lot of factors. Even the security agencies, how are there when they are sharing the money take part in the largesse. Would they arrest and prosecute themselves?
What is your take on the need to create special courts to fight corruption?
I don’t think special courts would be of any use; equip the existing courts. That is just it. Up till now, you still see the courts use long hands, so how many cases will they handle in a day? The Chief Judge can make rules, just like they did in Lagos where family matters are sent to certain courts, EFCC matters are sent to the other courts. In other climes the judge just sits down and the recorder records verbatim.
When I went to Federal High Court in Calabar, I was impressed because they have verbatim recorders. The judge just sits down and the proceedings are recording. The following morning, the record of proceedings is ready and the judge will ask: ‘have you gotten the records, and is it in order?’ If all the courts have that it will go a long way in improving the judiciary.
When people talk about delays, I say have you seen the cause list? And these judges are human beings and you expect them to perform magic. And do you know the judges’ work actually starts after the court sitting?
What is your take on the withdrawal of funds by the president to buy arms without National Assembly approval?
They can argue that he had to approve the spending because of the urgency to purchase and that they gave them a deadline to pay, otherwise. But that does not take away the fact that he does not have the constitutional power to appropriate. It is only the National Assembly that has that power.
The argument was that under emergency the president could make anticipatory approval, as is done in the National Assembly, which they subsequently capture in the budget?
There is no provision for anticipatory approval in the Constitution. Whether it happens in the assembly it does not make it right. They swore to uphold the Constitution; they are not supposed to go against it. What is expected of them to do is to send a letter as he has been doing. Sometimes you discover that they always meet with the leadership of the National Assembly, that should have been an avenue. I believe if he had met with the leadership of the National Assembly, they would have known how to go about it. There has to be cooperation and synergy among the three arms of government to move the country forward.