Mr. President, the law is not a booby trap
| credits: File copy
President Goodluck Jonathan was recently reported to have rejected the need to regulate campaign finance in Nigeria. Receiving the report of the Ken Nnamani-led National Stakeholders Forum on Electoral Reform, he described campaign finance regulation as a booby trap and posited that such restrictions were unrealistic and could not be monitored. He highlighted the high cost of electioneering including expenses on the media, travel and logistics and affirmed his rejection of any type of spending limitation on campaign expenses. The President’s disposition is curious considering that the Electoral Act 2010 (as amended) contains clear provisions limiting not just the expenses of candidates but also outlaws using state administrative resources to the advantage or detriment of any candidate during an election.
For the avoidance of doubt, Section 91 of the Electoral Act limits the campaign expenses of presidential candidates to N1bn; governorship candidates N200m; senatorial candidates N40m; House of Representatives candidates N20m; state House of Assembly and Local Government Council chairmanship candidates N10m and councillorship candidates to N1m. This is the law and it has not been amended; and this law was brought into force by virtue of Jonathan’s assent as the President. He did not object to any of these provisions when the bill was brought to his table for assent. For a President who swore to an oath to defend and uphold our laws to publicly hold the law in contempt is disturbing and clearly portrays a mindset of impunity reminiscent of his position on assets declaration when he said he did not “give a damn” about what Nigerians think on the subject. This is a virtual admission that Jonathan spent above the ceiling in 2011 and will also spend above the ceiling in 2015 and dares us with the naked facts.
If the President is convinced that the ceiling is very low, the expectation is that he should have sent an executive bill to the National Assembly to bring the ceiling to a “realistic” level. For his assertion that monitoring campaign finance is impossible, this is not true. The Centre for Social Justice monitored campaign finance and the use of state administrative resources in the 2011 presidential election and came up with the report titled, “Non Transparent Spending”. It also observed the campaign spending and use of state administrative resources in the Edo, Ondo and Anambra governorship senatorial elections. The reports are titled, “Spending to Win”, “Spending to Rule” and “In Defiance of the Law” respectively. One common denominator runs through the findings of the reports. Most serious candidates spent above the legal ceiling and incurred incredible expenses. The observation was based on the things that any reasonable and dispassionate person could see and these ranged from office expenses, billboards, radio and television, rallies, hiring of vehicles, venues for rallies and hotel expenses, printing of posters, T-shirts and other clothing, among others. There were also other expenses that the observers were not in a position to see. Yes, when cash is distributed in the inner chambers of a private residence or in the middle of the night to party officials and agents, the observers are not magicians and cannot see what was done in private and which the candidate and his campaign team will be most unwilling to disclose.
The second common denominator was that state administrative resources were abused by incumbents and those they supported. Official vehicles, aircraft, venues, among others were used by incumbents without paying for them. They used these facilities as of right contrary to Section 100 (2) of the Electoral Act which stipulates that state apparatus including the media shall not be employed to the advantage or disadvantage of any political party or candidate at any election. Even some government officials, paid at the public expense, worked full time in campaigns for upwards of six months without resigning their appointment. Opposition parties faced a hard time when they were denied the use of facilities like stadium or other venues under the control of the incumbent and from time to time, the police will throw in their spanner in the works by declaring that security reports could not support the holding of an opposition rally. Some public media houses took extreme steps; they refused to air opposition jingles and curiously returned the money already received in payment for the jingles.
Thus, monitoring of campaign funding is not impossible if the Independent National Electoral Commission decides to do so considering that observer groups can on their own get information showing expenditure above the ceiling. The initial challenge in the law was that the Electoral Act only set reporting obligations for political parties without setting same for candidates. But this has been overcome by the INEC using its powers under Section 153 of the Act to demand reports from candidates. The Guidelines and Regulations for Political Parties in Articles 11-16 detail regulations relating to candidates campaign office, fund raising and disclosure, books of accounts to be kept, non acceptance of anonymous contributions, audited returns to be signed by candidate and returned to INEC with a verifying affidavit. So, there is a legal basis for monitoring campaign finance.
The cashless and cash-lite policy of the Central Bank of Nigeria will facilitate official campaign finance tracking. All that is required is a clear instruction from the electoral body to all candidates to open specific campaign finance accounts which will receive all income and disburse all expenditure. This will provide a paper and banking trail of expenditure. With the Economic and Financial Crimes Commission, the Independent Corrupt Practices and Other Related Crimes Commission, Federal Inland Revenue, anti-money laundering agencies collaborating with INEC, no candidate can escape the eagle eyes of the monitors except there is deliberate mischief from any of the agencies.
Coming back to the limitations, the aforementioned reports made it clear that there is no empirical basis for the campaign expenditure ceilings. It is neither based on the number of registered voters nor the geography to be covered. It is even contradictory. For instance, if a presidential candidate has 36 states and the FCT to cover, why allow a governorship candidate to spend one fifth of the presidential ceiling. The recommendation coming from empirical evidence is that financial ceilings should be anchored on the number of registered voters in a constituency multiplied by a factor and from time to time adjusted for inflation based on the national consumer price index. Essentially, the limit should not be set in the body of the law; it should be a power delegated by the legislature to INEC. The implication will be that an amendment of the law will not be necessary for the ceilings to be adjusted. The current ceilings are arbitrary and low and may need to be scaled upward. Expenditure on the media alone for serious candidates usually gulps funds up and above the legal ceiling.
More stiff penalties should be set for violators of the law including vacation of office and the offence should be tried in the Electoral Offences Tribunal when established. The offence should specifically not be subject to the Attorney-General’s power to enter nolle prosequi or stop proceedings. Mr. President, it bears reminding you, the campaign finance limitation is not a booby trap; it is a law necessary for the consolidation of our democracy. If you are unhappy with the law, seek its amendment, rather than encourage its violation with impunity.
Follow me on twitter @censoj