In the manner with which companies and corporations build trademarks through which they are identified and reputed, Nigeria’s political space and her major actors over the years have seamlessly developed a trademark for politics in Nigeria – Financial profligacy. The wanton waste of scarce financial resources in the prosecution of elections in the country by political parties and their candidates alike has been a cause for concern since the return to democratic rule in 1999. More worrisome is the fact that these jumbo sums are most times arbitrarily ripped off from the collective treasury of the people and no one bats an eyelid.
In a country classified as the world’s poverty headquarters by corroborated international statistics, where a significant number of her citizens live below the $1 poverty benchmark income per day, the average Nigerian on the street is left to wallow in a cell of utter consternation each time they are intimated through formal or informal media how much political parties and candidates expend in their bid to secure desired political positions. While it is generally agreed that politics all over the world is capital-intensive, excessively spending the limited fortunes of the people in the promotion of a personal political agenda is most uncharitable and a gross display of insensitivity to the plight of Nigeria’s teeming poor population who struggle to afford just one out of three-square meals each day.
However, the intendment of this article is not to bleat about the aforesaid malady but to indict the country’s electoral laws of incompetency in checking same and forthwith make well thought out, practicable submissions and recommendations to check the negative trend.
CONSTITUTIONAL AND STATUTORY PROVISIONS REGARDING ELECTORAL EXPENSES
It is well known that laws simply exist to define acceptable conduct, acts and behaviors by individuals, organizations and institutions in the state. In the spirit of the foregoing and seemingly presaging the financial improbity of the incoming generation of politicians, the draftsmen of the 1999 Constitution inserted some provisions in the apex law to prevent, albeit unsuccessfully, the situation we have today in our politics with respect to ludicrous electoral expenses. Going further, the ELECTORAL ACT 2010 (as amended) also made efforts through commendable enunciations to clog the wheels of financial impropriety which politicians ride on especially during electioneering season.
Before proceeding, it is apposite at this juncture to take an excursion into these relevant constitutional and statutory provisions that check electoral expenses in the country.
Section 225 (2) and (5) of the CFRN states thus;
(2) Every political party shall submit to the Independent National Electoral Commission a detailed annual statement and analysis of its sources of funds and other assets together with a similar statement of its expenditure in such form as the Commission may require.
(5) The Commission shall have power to give directions to political parties regarding the books or records of financial transactions which they shall keep and, to examine all such books and records.
An incisive scrutiny of the preceding provision reveals that the Independent National Electoral Commission (INEC) is conferred with the responsibility of monitoring the finances of political parties, to wit; sources, assets and expenditures.
In a bid to bridge the legal hiatus colligated to the provisions of the constitution and specifically cover the field of “electoral expenses”, the architects of Nigeria’s electoral legal framework, the ELECTORAL ACT 2010 (as amended) in a fine display of astuteness dedicated sections 91 and 92 of the Act to address Election Expenses by candidates and Political Parties. A community reading of both sections shows that while S.91 provides for limits in electoral expenses to be incurred by candidates and punishments in the event of breach, S.92 is tailored towards guiding political parties in similar vein.
As apt as the afore-stated sections are towards stemming the flourishing financial debauchery in our political milieu with respect to elections, it undeniably appears their existence is yet to transcend beyond the fine ink and paper on which they are printed to producing palpable effects in the electoral system, as a subliminal observation of election periods in Nigeria glaringly reveals reckless financial spending by the key/leading gladiators in clear disregard of the limits set by the extant laws. Like many other beautiful statutory provisions in Nigeria, the bug of non-implementation has bitten these provisions, as the question of INEC’s diligence in implementing the stipulations of all relevant laws related to the incumbent subject matter also pops up. Has the electoral umpire been meticulous in ensuring strict abidance by stakeholders to the provisions of the law regarding electoral expenses? As cogitation is devoted to the foregoing question, it is also imperative to examine another point of view.
On the flip side, another school of thought believe the existing laws are infiltrated with loopholes which incapacitate the electoral umpire from executing them as provided, thereby giving opportunity for crafty politicians to exert and unaccountably manifest their inordinate propensities. Premised on this viewpoint which blames the continued existence of this malady on the inadequacy of the existing laws; the next ambit of this work conducts a luminous inquiry into the relevant laws with the underlying aim of exposing the flaws that pervade them.
A panoramic rummage of section 91 of the ELECTORAL ACT 2010 (as amended) which as earlier opined intends to place a ceiling on the electoral spending of candidates reveals that INEC is statutorily indisposed to enforce that section. Unlike section 92 (2) and (3), the candidates are not obliged nor bound by section 91 to make returns or reports to the Commission on expenses incurred during the election, thereby impeding the ability of the Commission to successfully hold them accountable and liable in the event of contravention.
Section 91 (10) which penalizes a candidate who knowingly acts in contravention of the limit of expenditure also gives rise to two questions; (i) Who is to determine the liability of the candidate, INEC or the courts? (ii) What is the implication of the word “knowingly”, how can it be established that a candidate knowingly violated the stipulations on expenditure or otherwise? Is there an objective threshold for determining same?
One more incongruity conjoined with the Act in relation to electoral expenses, is the definition of “electoral expenses” provided by section 92. For the purpose of accuracy, the section has been plucked out and reproduced below verbatim et literati:-
“For the purposes of an election, “election expenses” means expenses incurred by a political party within the period from the date notice are given by the Commission to conduct an election up to and including, the polling day in respect of the particular election.” (Emphasis by author)
From this definition which clearly and unambiguously circumscribes electoral expenses within the precincts of expenses incurred by a political party, what then are expenses incurred by candidates to be referred as? Some pundits assert that the definition is only with regard to the said section 92. However, this writer respectfully dissents, as the words preceding the definition devotes it “for the purposes of an election” and not just for the purposes of the said section. Those who are familiar with the canons of interpretation will remember the expressio unius ex exclusio alterius rule which is to the extent that the express mention of one excludes all others. SEE AGBAREH & ANOR V. MIMRA & ORS. (2008) LPELR-235(SC). Therefore, having expressly stated that the definition is for the purposes of elections, it will be logically primitive to construe the definition as applying to only the said section, as the only contemplation of the phrase which can be gleaned from its morphology is that the definition of electoral expenses expressed therein is to serve for the purposes of elections under whatever context discussed under the Act.
Flowing from afore-mooted point like water through a canal, it is the humble submission of this writer that expenses made by candidates for the purposes of an election do not arc into the circumference of “electoral expenses” as postulated by the Electoral Act, having secluded same to only expenses by political parties, and this constitutes a fundamental drawback in checking financial profligacy associated with elections.
Before zooming out of this ambit, it is imperative to also highlight the question of how to prosecute candidates who contravene the provisions of section 91 as referred to in S.91 (10) in cases where they are elected into office and shielded by the popular doctrine of immunity. SEE section 308 of the CFRN. Invariably, the trial or prosecution of such a candidate is put in abeyance thereby inflating the audacity of other political parties’ candidates to spend as much as possible to clinch their desired seats, knowing fully well that they are immune from prosecution for electoral financial recklessness upon ascension to the helm of affairs.
Over the years, these flaws have been exploited by election candidates to spend indiscriminately, therefore increasing the tendencies for the perpetration of electoral fraud and corruption, with its attendant effects on the quality of governance distilled by these politicians when they finally attain power.
It is generally held that galvanizing the necessary will to implement existing laws is a bigger challenge than enacting the laws in this part of the world. Hence, the first and most important recommendation is for INEC to brace up and set machinery in motion for an unbiased, dispassionate and punctilious implementation of existing laws on electoral expenditures.
Additionally, section 91 of the Electoral Act should be amended to ensure candidates are statutorily obligated to return reports of expenses made during elections. This is strongly predicated on the well-known fact that candidates spend more to secure their desired positions than the political parties who merely serve as platforms, hence, candidates are more likely to expend beyond set limits than the parties. Sequel to this, failure to comply with the set ceiling on electoral expenses should be elevated by virtue of relevant amendments to become a ground to nullify the electoral victory of a candidate found culpable. This is to expunge such delinquents and defaulters from the forte of immunity provided by the constitution, and ensure that non-compliance with the position of the law is not indirectly rewarded by victory in the poll.
Whilst Nigeria’s democracy and her electoral system are admittedly nascent, the desired growth in the system can only be activated through a sublime legal framework accompanied with thorough implementation.
Therefore, the loopholes diagnosed hereinabove should be stitched with necessary legislative and administrative tacks from the National Assembly and INEC.
The electoral system is the livewire and heartbeat of every democracy, and should be rid of any cancerous lump that can cripple it or render it much less effective. The outrageous spending by politicians during elections is a pandora box that births many other complications in the electoral system and indeed our democracy, and should therefore be dealt with and interred.
ABOUT THE WRITER;
KELECHUKWU PROSPER NWODO is an outstanding 200 Level Student of the Faculty of Law, University of Benin. He is the Personal Assistant to the National LAWSAN President, under whose office he has drafted correspondences to highly placed dignitaries including Nigeria’s Vice President, the President of the International Bar Association and many more, he also serves as the Chairman LAWSAN TV and Editor-In-Chief of LAWSAN Monthly E-bulletin. K.P. Nwodo is a Campus Associate with Commercially Aware, and a Brand Ambassador to Legally Engaged. He currently interns with Neplus Ultra Partners in Benin and is currently involved in high profile gubernatorial pre-election cases.
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