Former President of the Nigerian Bar Association NBA, Dr. Olisa Agbakoba SAN, has said that the 1999 Constitution, Nigeria’s grand norm has given the Independent National Electoral Commission INEC enormous powers to be a strong and impartial regulator as the country approaches the 2023 general elections.

Recall that the INEC had last year released its electoral timetable for the conduct of the 2023 general elections, which had been modified a couple of times indicating that the presidential election, initially scheduled for February 2023 would now hold sometime in March, 2023, while other elections would follow subsequently.

The human rights lawyer said in a statement Thursday, that this reminder had become necessary because the commission seems to have forgotten the level of powers assigned to it as the ultimate regulator of the political and electoral processes, insisting that the commission must deploy these powers to conduct free, fair and credible elections as the country approaches 2023.

The Senior Advocate of Nigeria cited section 158 (1) of the constitution, which provides that INEC in the exercise of its powers, shall not be subject to the direction or control of any authority or person (including the President of the Federal Republic). According to him, this section establishes INEC as an independent authority in the exercise of its electoral functions.

He also cited paragraph 15 of Part 1 of the Third Schedule to the 1999 Constitution, which empowers the commission to organise, undertake and supervise elections, adding that these include the powers to make regulations and guidelines for elections.

The statement reads in part: “These powers conferred on INEC makes substantial parts of the Electoral Act largely irrelevant. Surprisingly, INEC has allowed the National Assembly to encroach on its powers, in particular the vexed question of Electronic Transmission of Results.  

“For example, when the National Assembly voted to reject electronic transmission of election results, INEC in the course of the debate, was mostly silent and did not assert itself even when the Constitution confers on INEC the powers to “organise, undertake and supervise” elections. These broad powers obviously include the matter of transmission of votes.  

“The arbitrary defections of politicians from one party to another call for strong regulatory control by INEC. The lack of internal democracy in most political parties has failed to receive robust regulatory response by INEC. The Nigerian political system needs INEC to act as a strong regulator.

“I suggest that INEC is entitled to withdraw certificates of return issued to elected office holders who defect. The logic is simple. INEC issues a certificate to a winning candidate who jumps ship to another party. There has to be sanctions.  INEC ought not to be afraid of getting it wrong. INEC must be seen as a firm referee with clear rules and a determination to enforce those rules.”

He noted that to justify and demonstrate these powers, the commission needs to clarify its position on how the 2023 elections will be conducted, arguing that INECs recent statement that elections will be conducted manually and electronically is confusing; as it allows politicians opportunity for mischief. He therefore insists that the rules set out by INEC must be clear on how votes will be counted.  

“Finally, INEC must be impartial in election petitions. It must be neutral. INEC’s proper role is to assist the courts to resolve election disputes. Unfortunately, generally, INEC has acted as defendant in election petitions. This is very wrong. First, it puts on the petitioner the onerous burden to produce evidence which INEC holds in its custody.

“As a neutral regulator, the proper role of INEC is to assist the courts by always producing documents. The burden should not be on the helpless petitioners. I hope the 2023 election will enable INEC to play its proper role as a strong impartial regulator of elections”, he argued.