We must not allow the cancer of “railroading” or “belonging” to infest and affect our electoral process. This cancer of railroading and belonging thrives on profiling and demonization of those that do not belong or those that dare to think differently or who disagree with the popular opinion and “fad” in town. It is dangerous and we must not allow it to have a foothold in our electoral process. I make this intervention based on two interrelated issues.
The first relates to the uncommon example set by the former Governor of Ekiti State, Dr. Kayode Fayemi and the incumbent President of the Federal Republic of Nigeria, Dr. Goodluck Ebele Jonathan that those who genuinely lose election should graciously accept defeat and congratulate the winner of such elections. The second is whether lawyers especially senior lawyers, are angry that the spate of people accepting defeat and congratulating their opponents “will spoil their market”. I have decided to address these two issues based on the precedent that has been laid and to separate the good precedent from the bad precedent exemplified in the “cancer of belonging” and the profiling of those that insist on standing with the people, the law and the constitution.
A friend of mine who I believe means well, saw me at the airport a few days after the gubernatorial elections and was “genuinely” worried that some of us may likely be redundant during a period that is traditionally a busy period with election petitions. He expressed concern that most of the Courts in Nigeria are not sitting on account of the industrial action by the Judiciary Staff Union of Nigeria and this has reduced the earning power of lawyers. He was also worried that some of the election petitions tribunals set up by the President of the Court of Appeal will soon fold up as some of them are yet to receive a single petition arising from the various elections conducted by the Independent National Electoral Commission on the 28th day of March and April 11, 2015. My friend pointed out that the Court of Appeal that sits as the Tribunal of first instance in election petitions will be without a petition this time.
Whether the concern shown by my friend is genuine is beside the point. The truth is that some Nigerians share the same view. Some are happy that they will be saved the drama, the accusations and counter accusations of compromise of tribunal judges, tribunal officials and other persons with immediate or remote connection with election petitions and tribunals. Others are happy that their will expressed through their votes will not be tampered with and they will not have what they now call “court imposed” Governors. Others, including some politicians, believe that they will not be forced to add to the over bloated bank account of some lawyers. I also know some lawyers that are happy that emergency consortium of lawyers already formed and or about to be formed for the purposes of commandeering “fat briefs” will be disbanded or will have little to do. I agree that when someone is defeated in a free, fair and transparent election, that individual and that party must accept defeat.
Accepting defeat when you are defeated is central to democratic growth. Part of the challenge of our electoral process is that some candidates and political parties do not have the word “defeat” in their political practice and whether the process of an election is free, fair and transparent makes no meaning to them and this makes them fight to the last. But the truth of the matter is that candidates and their parties are elected to a four year tenure and for the President and Governors, subject to re-election for another four years. The implication of this is that these categories of elected officers must prepare and subject themselves to the sovereign power of the electorates in an election. If the voters agree, those in power are re-elected, if the voters think otherwise, they will elect a new set of people to pilot the affairs of the country.
This is the contract of the Nigerian people with the political parties and those that seek their mandate. So, constitutionally it is not a big deal for someone defeated in a free and fair election to congratulate his opponent and accept defeat. Nigerians are celebrating it because accepting defeat and congratulating a winner has never been part of our electoral praxis. Nobody loses an election and when someone loses, it must have been stolen from him and he fights tooth and nail to retrieve what in actual fact does not exist. My second proposition is that it is constitutionally and legally wrong to congratulate and celebrate someone that has stolen the mandate of the people just because one wants to “belong”. That will be the worst electoral heist against the power of the people to elect their leaders.
After all, the Constitution of the Federal Republic of Nigeria (as amended) is emphatic on the fact that the Federal Republic of Nigeria shall not be governed, nor shall any person or group of persons take control of the government of Nigeria or any part thereof, except in accordance with the provisions of the Constitution. And section 77(1) of the Constitution of the Federal Republic of Nigeria(as amended) provides that every Senatorial District or Federal Constituency shall return one member who shall be directly elected to the Senate or the House of Representatives in such a manner as may be prescribed by an Act of the National Assembly. Section 132 and 178 of the Constitution also makes similar provisions for the election of a President for the Federation and Governors for the various States of the Federation who are mandatorily required to submit themselves for election and for others to also aspire to the said offices every four years on a date appointed by the Independent National Electoral Commission. So, incumbent office holders know that their tenancy is temporary and pegged to a period of four years.
They know that after four years they must go back to the people to beg for votes and one then wonders why they never prepare for the day after. Maybe, their refusal to prepare for the day after can be attributed to the fact that some of them believe that they can never lose an election based on the power of incumbency and the use of the paraphernalia of office for campaigns to the disadvantage of “outsiders”. My submission is; it is good practice to concede defeat in a free and fair election whether one is an incumbent or a candidate of an opposition political party.
However, we shall be doing violence to the letter and spirit of the Constitution and the Electoral Act, 2010(as amended) to insist that a candidate holding a stolen mandate should be allowed to retain it just because a precedent has been laid that it is more honourable to concede defeat when someone is defeated. The precedent that can stand is that when elections are free, fair and transparent and or conform substantially to the law and the constitution, the losers of such election should concede defeat. However, candidates and their parties in an election have a constitutional and legal duty to challenge the results of an election if they strongly believe that the election falls below national, regional and international standards.
This is because parties and their candidates must satisfy the provisions of the Constitution and satisfy the provisions of the Electoral Act, 2010(as amended) designed to regulate the conduct of Federal, State and Area Council elections and other related matters. This is the intendment of section 138(1) of the Electoral Act, 2010(as amended) which provides that an election may be questioned on any of the following grounds that is to say- (a) That a person whose election is questioned was at the time of the election not qualified to contest the election; (b) That the election was invalid by reason of corrupt practices or non compliance with the provisions of the Act; (c) That the respondent was not duly elected by majority of lawful votes cast at the election; or (d) That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.
I am sure that most legal practitioners are in agreement that our elections must be credible. I am sure that most of them will make more money in a stable political and economic environment. I am sure that some of the Judges and the litigants will be happy if the courts can concentrate on their everyday adjudicatory process. But we must not permit violence to our constitutional and legal order on the altar of “belonging” and being seen to be politically correct even where everything is wrong.