Campaign Finance: Penalties and Monitoring, By Eze Onyekpere

…the ordinary courts in Nigeria may not be best suited for the prosecution of persons who run afoul of the above ceilings. It is imperative that the Electoral Offences Commission recommended by the Justice Uwais Electoral Reform Committee be set up to inter alia exercise jurisdiction over violations of campaign finance laws.

Section 91 (10) of the Electoral Act 2010 (as amended) prescribes penalties for candidates who spend money on electioneering, in excess of the ceiling prescribed in the Act. Candidates for presidential, governorship, senatorial, House of Representatives, House of Assembly and chairmanship of a local government and councillorship who violate the ceilings are liable to a fine of N1 million or imprisonment for 12 months or both; 8 months imprisonment or a fine of N800,000 or both; N600,000 or imprisonment for 6 months or both; N500,000 or imprisonment for 5 months or both; N300,000 or 3 months imprisonment or both; and N100,000 or 1 month imprisonment or both, respectively.

In subsection 11 of the same section, any individual who knowingly donates more than N1 million to a candidate acts in contravention of the Act and shall on conviction be liable to a maximum fine of N500,000 or 9 months imprisonment or both. By subsection 12, any accountant who falsifies or conspires or aids a candidate to forge or falsify a document relating to his expenditure at an election or receipt or donation for the election or in any way, aids and abets the breach of the provision of this section of the Act, commits an offence and on conviction is liable to 10 years imprisonment.

A number of issues arise from the foregoing provisions. The first issue is the word “knowingly” used to qualify the commission of the offence. The Black’s Law Dictionary defines ‘knowingly’ as follows: “With knowledge; consciously; intelligently; willfully; intentionally. An individual acts “knowingly” when he acts with awareness of the nature of his conduct… Act is done “knowingly” or “purposely” if it is willed, is product of conscious design, intent or plan that it will be done, and is done with awareness of probable consequences. A person acts knowingly with respect to a material element of an offense when: (i) if the element involves the nature of his conduct or the attendant circumstances, he is aware that his conduct is of that nature or that such circumstances exist; and (ii) if the element involves a result of his conduct, he is aware that it is practically certain that his conduct will cause such a result… The use of the word in an indictment is equivalent to an averment that the defendant knew what he was about to do, and, with such knowledge, proceeded to do the act charged”.

The point here is that a candidate may deny exceeding the ceiling with full knowledge and this may create a technicality for the prosecution to prove beyond reasonable doubt that the candidate knowingly spent above the ceiling. The second issue is that the penalties indicated as fines are paltry, considering the undue advantage expenditures above the ceiling will confer on a candidate. So, a candidate can deliberately make up his mind to violate the provisions and set aside the money to pay the fine. It is on record that no one has been prosecuted or even convicted of the offence of exceeding the limitations, despite available information that candidates are exceeding the ceiling.

The third issue is from subsection 12; any accountant who facilitates the breaking of the law and its concealment bears the greatest brunt of the law – 10 years imprisonment. Although the accountant owes the nation a professional duty, the penalty seems out of proportion to that of other actors in the system. He merely keeps the books and as such should be an accessory to the crime and not a principal offender. He gets a very heavy punishment, while the principal offender gets away with a slap on the wrist.

The foregoing creates the need for a stakeholder group – the Political Finance Monitoring Group, which brings various competencies to the table, to be involved in campaign finance monitoring under the leadership of INEC. The key stakeholder groups include INEC, political parties, the Police, other security agencies…

The fourth and very major issue is the question of operationalising these provisions; how would implementation proceed? Who will bring up evidence to show that a candidate has exceeded the ceiling? Is INEC as presently constituted and resourced in a position to monitor and effectively track campaign finance expenditure? It appears that a plethora of stakeholders need to be involved to effectively bring up the evidence, whilst INEC needs more resources – human, financial, information, technology, etc. to be able to track campaign finance across the federation from 91 political parties and their candidates. Also, despite the attempts by the financial regulatory agencies and various laws against money laundering, Nigeria, to a great extent, still runs a cash based economy. It is a notorious fact that many candidates, especially those with deep pockets or incumbents who control public allocations spend above the ceilings provided for candidates in the Electoral Act. Monies do not change hands officially, but behind closed doors and sometimes in the dead of the night where no one, including INEC officials or the security agencies, is watching.

The foregoing creates the need for a stakeholder group – the Political Finance Monitoring Group, which brings various competencies to the table, to be involved in campaign finance monitoring under the leadership of INEC. The key stakeholder groups include INEC, political parties, the Police, other security agencies including the Economic and Financial Crimes Commission, Independent Corrupt Practices and Other Related Offences Commission, the media, academia, National Broadcasting Commission, Nigeria Communications Commission, Code of Conduct Bureau, Central Bank of Nigeria, Financial Intelligence Unit, Inland Revenue Service and civil society organisations. Such a group would meet regularly and the stakeholders will provide an array of information to the group, which can be used for follow up on remedial and enforcement actions. Happily, INEC has by regulation demanded that all candidates should report on their campaign expenditures. It could also ask the candidates and political parties to open dedicated campaign finance bank accounts, which will receive all incomes and through which all expenditures will be made.

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All inflows and outflows from such dedicated accounts can be monitored by the CBN, the Financial Intelligence Unit and the relevant security agencies. The Federal Inland Revenue Service should be interested in the tax status of persons who make huge donations to campaigns and political parties; the Broadcasting Commission should be able to give an account of campaign money spent in the electronic media; the Communications Commission will bring information on expenditures that run through the mobile networks. The political parties will be watching each other and make information available on expenditures that run afoul of the rules; civil society and media as watchdogs and pillars of integrity will provide further information to the group, while security agencies will investigate reported breaches.

Political parties have broad membership and are entrenched in communities and as such, will be best suited to provide information and evidence from the grassroots on the extant campaign finance practices of their members and other political parties. The group provides the opportunity to review developments, actions and inactions of various groups, candidates and political parties during the campaigns and election, and call for preventive, remedial or proactive action to curtail the breaches.

A Political Finance Monitoring Group that engages its stakeholders will lead to alliance building, knowledge and information exchange, effective monitoring of campaign finance and evaluation of different available options of monitoring and enforcement, strengthen accountability and lead to innovations. The PFMG will seek to revive the full implementation of all campaign finance guidelines and regulations issued by INEC, extant standards and Code of Ethics for Political Parties and seek voluntary compliance by political parties and candidates. It will engage the public, increase demand for accountability and generate evidence for the review of campaign finance laws and policies after the elections.

…laws make sense when they are enforced; otherwise, they would simply be worth no more than the paper on which they were printed. The time to enforce campaign finance ceilings is now.

Evidence available from recent and previous elections indicate the increasing use of money to influence voters arising from an impoverished electorate who are in dire straits. No single agency can do the monitoring and enforcement of campaign finance laws alone – INEC or any single agency or stakeholder group. Candidates and parties can be stopped from inducing the electorate, violators of the law need to be prosecuted and punished and in the long run, the laws will be reviewed to become more fit and proper for the Nigerian society.

The fourth issue is the need for an external complaints mechanism which accepts reports from non-governmental organisations, the media and independent whistle blowers, which would complement INEC’s internal monitoring mechanism. Essentially, experts have suggested that: “Any person should be allowed to file a complaint if she or he believes a violation of the Electoral Act has occurred or is about to occur. The complaint process can require a formal, written document satisfying specific criteria for a proper complaint, or can have a more liberal character, with the enforcement agency taking action based on press articles or informal allegations. Some political finance systems also give the enforcement agency the discretion to act on information it receives anonymously”.

The fifth issue is that the ordinary courts in Nigeria may not be best suited for the prosecution of persons who run afoul of the above ceilings. It is imperative that the Electoral Offences Commission recommended by the Justice Uwais Electoral Reform Committee be set up to inter alia exercise jurisdiction over violations of campaign finance laws.

Finally, laws make sense when they are enforced; otherwise, they would simply be worth no more than the paper on which they were printed. The time to enforce campaign finance ceilings is now.

Eze Onyekpere is the lead director at Centre for Social Justice.