Mr. Mike Igini a lawyer and pro-democracy activist, is the Akwa Ibom State Resident Electoral Commissioner, REC. In this interview with select journalists, he speaks on the court judgment that convicted a Professor of Soil Science at the University of Calabar, Peter Ogban, for manipulating 5,000 votes in the 2019 election, describing the conviction as a watershed development that will help to restore and reinforce public confidence in the integrity of the electoral process. TEMIDAYO AKINSUYI brings the excerpts:
The judgment of the court today that convicted a University don Prof. Ogban for manipulating 5,000 votes in the 2019 election is a landmark development in the history of punishment of electoral offenders in Nigeria. What is your immediate reaction that someone of this status could be convicted?
Well, I should say that those who desire or crave the honour of a king should not break the law of the land; otherwise they will forfeit public respect. So l agree with you that what happened today is a watershed development that will help to restore and reinforce public confidence in the integrity of the electoral process, under the leadership Prof. Mahmood Yakubu, and his commitment to a sane electoral environment where attitudes are shaped and confidence established that the ballot remains the best means of expression of the will of the people as to who can assume position of authority to exercise power in a democracy.
I dare say that the institution of representative democracy will have no hopeful future if those who try to undermine it like this professor and many others are not held accountable for their conduct. CHECK THIS OUT
Why should we make excuse of lack of awareness for a professor, someone of presume integrity, but who intentionally and deliberately manipulated collated votes by his colleagues to produce a different outcome? In any case, ignorance no matter how acute is not an excuse in law.
I was on radio stations and television before the 2019 election after we had relocated 23 polling units from private premises, drawing attention to conducts that are punishable under the law and urged all who will be engaged as poll officials not to engage in any fraudulent and criminal conduct as severe consequences awaits any and all who deviate from the highest principles of ethical standards. But as we all know, pecuniary interest is, if not, always the reason why people indulge in criminal conducts and there are consequences.
We should not be on the race to the bottom in every area of our national life. Nigerians want to see a very high level of fidelity of all institutions that have roles to play in elections comprising, INEC, security agencies and the Judiciary, these institutions require effectiveness in both structuralism and human agency. Whereas these structures have always been there, the conduct of this professor and his conviction by the court shows how human Agency is needed as demonstrated by this judge to animate the structures to make them effective against unacceptable conduct in our electoral democracy.
Let me be clear, we take no pleasure in the avoidable fate that has befallen the Professor, our concern is public trust that as officials who were given the task to protect the votes of the people, we did our job and ensured that those who failed to do theirs, who in fact betrayed the trust of the Commission and more importantly the people of Akwa Ibom State for transient rewards have been brought to justice. This is what is most important because justice is not a two-way dimension but three ways; justice to the complainant, Defendant and finally the Society that its laws have been violated. Whoever is planning electoral manipulation or fraud of any kind in future elections can no longer scoff at the Law, such individuals must now view Electoral offences as possible career damaging endeavour.
What message is INEC trying to send to Nigerians given the calibre of the individual involved in this particular case, a professor who is to spend 3 years in prison for committing electoral fraud?
An electoral offender is an electoral offender irrespective of status in the society, the rule of law is about the equality of all citizens before the law of the land. In any case, anyone who is mindful of his status and place in the society should know that a beautiful bird that knows that its feather is highly valued by artists, herbalists and all manner of people for different purposes should not built its nest close to the ground.
Look, the surest way to safeguard the legitimacy of the electoral process and stop the reign of impunity is by ensuring that electoral offenders are punished particularly the highly placed individuals. As a matter of fact, those who are more highly placed in society who ordinarily should know and understand better that social order is key to the sanity of society, have over the years by themselves or through their agents committed worst offences and undermined public confidence in the integrity of public institutions. There are no separate laws for the low calibre and high calibre citizens in the face of violation of the law, it’s about equality of all before the law governing elections in this country, and so, proceeding against highly placed members of society particularly a professor, an individual of presumed integrity subject to the law, creates a more significant need for conformity by all.
The judiciary has been under severe criticism by Nigerians over failure to deal with electoral offenders, yet a state High court has convicted a University professor. As a lawyer, is the criticism justified?
The judiciary has to do more and should stand tall and mighty in defense of the rule of law and democracy. We already know that the corruption of the electoral process through rigging and all kinds of manipulations during collation are threats to credible elections in our country , we must, therefore, demonstrate the will to deal with these threats because you do not need to consult an oracle when you already know the cause of your illness. The judiciary must assert its independence from pre- existing interest of socially powerful groups and their interests by being courageous in determining political cases with criminal contents irrespective of status of those involved and whatever political party that they belong.
The courage and independence demonstrated by this state High court in Uyo in this matter is uncommon. Across the federation, you go and do your finding, hardly would a state High court except federal High Court handle with this kind of demonstrable independence electoral offence case that involves key political actors in the states. That is our frustration and the reason why despite several reported cases of violence and electoral malfeasance during the 2019 elections, everywhere suddenly has been quite as if nothing happened. So, it’s a huge commendation to this state High Court and the judiciary.
The issue of absence or relevance of police investigative report as a condition precedent to prosecution, featured strongly in this case, but was rejected by the court. How relevant is police investigative report of election offence before prosecution by INEC?
The issue of relevance of police investigative report, that would never be made available several months after election, as a condition precedent before electoral offenders could be arraigned in court and prosecuted has again been rejected and laid to rest by the court. It had been used over the years to prevent, frustrate or stall the prosecution of electoral offenders who committed serious offences during elections since 2011 that l have been in the commission.
It was the major plank of defense by the defendant in this matter, that the Commission cannot prosecute despite its statutory power to do so unless there is police investigation, whereas documentary evidence of a Collation/Returning Officer, a professor, who awarded a huge 5,000 votes of a candidate to his opponent, is overwhelming.
In 2011, when I was the Cross River REC, we prosecuted without police report and secured conviction of electoral offender who was sentenced to months imprisonment.
As you already noted, the nebulous argument of the necessity of police report was flatly rejected by the court given that the Supreme Court had answered that question way back in 2002 in the case of Fawehinmi vs IGP, when the apex court, as per Uwaifo JSC, as he was then declared unequivocally that “criminal proceedings do not include police investigation.”
The Supreme Court was of the firm view that whereas evidence obtained in the course of police investigation may be useful in criminal proceedings and may even be decisive of a case, its absence cannot be a bar to prosecution nor does it make the investigation itself criminal proceedings. If INEC must get police report, as argued, albeit erroneously, before electoral offenders can be prosecuted, then no electoral offenders will be prosecuted in Nigeria.
Here in Akwa Ibom, none of the over 11 cases reported to the police saw the light of the day except these two cases the Commission decided to take up by itself that has now resulted in a conviction over the 2019 election.
Is the court suggesting, by this judgment, that with or without police investigation report, INEC can arraign any electoral offender in court?
As a legal practitioner, I am sufficiently aware of the position of the law on this so-called issue of police report, that its absence is not a bar to prosecution of electoral offenders given the prosecutorial power of the Commission under section 150 (2) of the Electoral Act.
This judgment is an affirmation of the existing law as declared by the Supreme Court in another landmark case Fawehinmi vs Akilu where the apex court even recognised the power of a private citizen to carry out private investigation and initiate criminal proceedings without police investigative report. The highest court of the land declared that our late hero, chief Gani Fawehinmi do not need police investigation report to prosecute having investigated himself and attached proof of evidence to the charge. CHECK THIS OUT
That was exactly what the Commission did in this matter given our frustration over eleven serious electoral cases here in Akwa lbom reported to the police in respect of the 2019 election and no report of completed investigation from the police.
We conducted investigation, established prima facie case against these two professors out of many of his colleagues who did a very commendable job with integrity. All the documentary evidence of the fraudulent 5,000 votes of a candidate deducted and added to opponent in election result series of forms EC8B and EC8C by the professor were marked as exhibits before the court.
We do not need any special police investigation on this matter. The Supreme Court had even declared in that celebrated case that this High court has relied on in this judgment that even a private prosecutor has no legal obligation to rely on police report before he could proceed to prosecute a matter, that the police need not co-operate because it could even be a matter which the police may not wish to investigate as a matter of policy.
So, nobody should use police report as a shield or cover from prosecution. The sanctity of the votes of the people must be safeguarded because in a democracy, elections are the principal instruments that compels or encourage elected office holders to pay attention to citizen. lf the people votes are not allowed to count then election becomes a mere ritual without choosing.
Is INEC also going to prosecute its dismissed indicted staff?
The gross misconduct that led to the dismissal of three of the Commission’s staff is captured within the federal civil service rules; they have to do with attempts to compromise register data base, disappearance of critical election equipment and election sensitive materials during the period of the election.
These wrong-doings that involved our staff are clearly different from the criminal infractions of the Collation/Returning officers that committed offences of deliberate subversion of the will of the people when they had already spoken through the ballots. The conduct or acts that constitute these offences are enumerated in the Electoral Act. Let me be clear, if there were evidence that suggested that administrative interventions were insufficient remedy in the light of the law, the Commission would have prosecuted them in court.
Some people have questioned why you do not over-look these infractions given that it happened in 2019 and no such action is taking place in other states?
This is not about me; it’s about the reign of impunity by our elites in the country that must stop if we hope to have a sane society. In any case, if as you said that what has happened here in Akwa Ibom is not happening in other states which is not wholly correct and perhaps l should not have acted on these matters, how then can we bring sanity and probity to public life? On the question of time, there is no statute of time limitation here even though the period of tribunal and the several months of lockdown slowed the commencement of the matter apart from the fact that the commission has to carry out its investigation before arraignment in court. It was an important step that needed to be taken because you do not inquire who is responsible for your father’s death until you have a sword in your hand.