REVIEW OF INEC'S PERFORMANCE DURING AND SINCE THE

C O N F I D E N T I A L SECTION 01 OF 03 ABUJA 002046

SIPDIS


E.O. 12958: DECL: 11/19/2013
TAGS: PHUM EAID KDEM PGOV NI
SUBJECT: REVIEW OF INEC'S PERFORMANCE DURING AND SINCE THE
2003 ELECTION


CLASSIFIED BY CDA ROGER MEECE FOR REASONS 1.5 (b) AND (d).



1. (C) Summary: Six months after the April elections,
Nigeria's Independent National Electoral Commission (INEC) is
rather less Independent, and its actions during the 2003
elections and since raise difficult democracy and rule of law
questions. While the elections were less violent than many
expected, INEC held a flawed first round of elections for the
National Assembly in April, an apparently even more seriously
flawed second round of elections for the Governors, Vice
President and President, and an almost non-existent third
round for state assemblies. It never has held the fourth
round of scheduled elections for local government officials.
INEC also had great trouble producing materials required by
Nigeria's election law, especially the national voters
register, candidates lists, and vote tally sheets. The
election results have been contested in court by many losing
candidates.



2. (C) In the most prominent of these, brought by losing
presidential candidate Buhari, INEC's lawyers deferred
responding to court subpoenas for months, and then told the
judges recently that the required documents above still do
not exist. In other words, quite separately from the
democracy issue of whether INEC was involved in rigging the
election, INEC violated the Rule of Law by not having the
legally required materials for the election, or it is
violating the Rule of Law by flouting the court's subpoena,
or both. And since the election, the ruling PDP has replaced
10 of INEC's 12 "Independent" Commissioners with people the
Opposition (and some PDP members) believe are the President's
supporters, and then most recently floated proposals that
would allow the INEC Commissioners to overrule Returning
Officers in future elections and to de-register what the
proposal called "erring political parties." End Summary.


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THE ELECTIONS
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3. (C) Logistically, the April 12 National Assembly elections
were fraught with problems. The ad hoc staff had little
understanding of procedures on election day. INEC, through a
series of its own failures, was unable to mobilize staff or
transportation. The ballot box seals and the security
envelopes for reporting results were not used in many cases,
and most are still in warehouses (though available for use in
subsequent elections). The April 19 elections for Governors,
the Vice President and President brought only a few cosmetic
changes to the logistical side of the process, but
highlighted a collapse of the supervisory aspect of the
elections as results were manipulated through the ward
collation centers, the state elections offices and in Abuja
at INEC Headquarters itself. The state assembly elections
may as well not have taken place, as the lack of preparedness
was mirrored by far more public apathy than normal on voting
day in Nigerian elections.



4. (C) The EU publicly reported on the presidential election
that problems in six states were so severe that effectively
no election was held. In five other states, the EU cited
severe problems that effectively negated the elections there.
The EU did not limit its criticism to these 11 of Nigeria's
36 states, and identified specific problems in the other
states which would have affected the overall results there.
U.S. Embassy observers at election sites in 14 of the 36
states witnessed many of the same problems.



5. (C) INEC has shown no accountability for any of this to
the Nigerian public. There appears to be no cultural
awareness at the top that change for the better is necessary.
The fact that INEC professional staff are working on
improvements is also not seen by the public.



6. (C) Opposition candidates allege that the elections were
rigged, not merely tarnished by incompetence, and that INEC
was an active participant in the rigging. INEC is now a
defendant in many suits brought in Nigeria's courts against
various of the 2002 elections, the most prominent of which is
losing ANPP presidential candidate Buhari's against INEC and
President Obasanjo. More than 85 percent of the other suits,
especially those by less powerful complainants, were
dismissed by Nigerian lower court judges on "technicalities."


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RULE OF LAW ISSUES
--------------



7. (C) Buhari's suit seeks to overturn Obasanjo's election as
rigged, but a sidebar to that story raises serious Rule of
Law questions about INEC. In May, Buhari's lawyers persuaded
the tribunal to subpoena the national voters register,
candidate lists, and vote tally sheets from the 2003
election. All are items the Election Law requires in order
to hold the election. After months of not answering the
subpoenas, INEC's lawyer this fall told the court that the
national voters register had not been completed, that the
tally sheets for the presidential elections were "still being
produced" and that the various polling station tally sheets
should not be accepted as legal documents. "Only the results
as announced by (INEC Headquarters in) Abuja should be
considered valid," he averred. The judges were incredulous.
As one Federal Court judge asked INEC's attorney, "You could
announce the (election) results within hours, but after six
months you can't produce the documents used to arrive at the
results?"



8. (C) Outside the court, INEC Chairman Guobadia commented
within the past month that INEC is "only now starting to
collate the registration forms" for the national voters
register. The sad story was that the contract for the
automation of that process was paid in full, but much of the
equipment either never materialized or was inappropriate for
the task. According to one employee of the contractor, the
company intended to short the contract and never believed
that its promises were possible given the timeframe and the
resource constraints. As more examples of the failures of
INEC officials come to light, there has been no nationwide
effort at tracking down the officials who mishandled their
duties on election days and even fewer efforts to charge any
of them with the various criminal penalties arising from
their nonperformance.



9. (C) Regardless of the reasons, INEC is claiming in court
that items did not exist that are required by law to hold the
election, and still do not exist. Buhari's lawyers clearly
want to use the voters register and tally sheets to show that
returns gave Obasanjo more votes in various areas than there
were registered voters, or than the polling stations' tally
sheets indicated, and they have entered into evidence voters
register documents and tally sheets obtained by ANPP poll
observers to make just that democracy point. But the rule of
law quandary remains. It appears INEC either is lying to the
judges about the documents now, or did not have the documents
when the law required them at the elections. Or both.


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SINCE THE ELECTION
--------------



10. (C) Not complying with court subpoenas has not been the
only problem with INEC since the April elections. This past
August, the PDP changed ten of twelve INEC Commissioners
despite opposition from virtually all other parties that the
new commissioners were supporters of the President, not
independent. Several of them were promoted from their
state-level INEC positions, where they presided over the most
egregious examples of rigging in the flawed 2003 elections.
Others are family members of known Obasanjo supporters. None
have a reputation which would enable them to carry out any
semblance of a fair process.



11. (C) The PDP rammed the new Commissioners' appointments
through Senate approval despite a walkout by the entire
opposition and some PDP members. The PDP refused to allow
discussion or even questioning of the candidates by the
Senate, before or after the walkout, making a shambles of the
legally mandated confirmation process. The manipulation was
so bad that the PDP had difficulty keeping a sufficient
number of its own members in the Senate session to allow a
vote. Not one of the ten new Commissioners is a person
acceptable to the credible opposition parties.



12. (C) Two months later, new INEC Commissioner Maurice Iwu
presented a well-publicized proposal for changes in Nigerian
law to give the now partisan Commissioners new powers "to
sanction erring political parties, including de-registration"
and to ensure that INEC Returning Officers, "whose loyalty is
questionable," should not override or supersede the INEC
Commissioners in conducting elections -- a case, the reported
INEC proposal said, "of a hired servant having more powers
than the master." INEC Chairman Guobadia told IFES afterward
that Iwu's proposal was not INEC's position.



13. (C) While the proposal from the new Commissioner to give
the political appointees more authority in deciding how
elections can be conducted is not a done deal, or even a
concrete proposal for change, the likelihood that something
resembling his suggestions is adopted is very high -- even
despite opposition from within INEC's professional staff. In
Nigeria, the normal pattern of change is for a flunky to
float a controversial idea (sometimes accompanied by denials
from higher level officials) to soften the blow when the same
officials steamroll the decision into place.


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COMMENT
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14. (C) A move to centralize more power from professionals
and local officials into the hands of the 12 Commissioners
will be troublesome in any case. The failure of rigging
efforts during the April elections in various localities, and
in the states of Kano and Lagos, were attributed to public
monitoring and to dedicated lower-level officials who refused
to act on Abuja's orders on election day.



15. (C) INEC's attitude at the tribunals also points to the
cultural problem within the organization. By obfuscating and
delaying, INEC is in no small part responsible for the
continuing uncertainty over the election result. If it was
sincere, INEC would have produced the subpoenaed documents
and made every effort to assist in determining if the various
cases had merit. If INEC were really independent, its own
interests would be served in cleaning up the various messes
it left behind in order to win some level of support from a
public which views it with an ever more jaundiced eye.
MEECE