2019: Drama and the order of elections

The National Assembly is about to wrap up legislative work on the 2010 Electoral Act, which will produce a new set of laws for electoral activities. But this is already generating arguments from stakeholders. Will the National Assembly pull through? What is the nature of the Electoral Act INEC would work with? Associate Editor, TAIWO ADISA, presents the unfolding drama.

ON January 10, 2018, the Independent National Electoral Commission (INEC) announced the time table for the 2019 general election. INEC chairman, Professor Mahmood Yakubu, who announced the dates said that the Presidential and National Assembly elections would be held on February 16, 2019 while the state elections, including governorship and State Assembly elections would follow two weeks later on March 2.

He said that the conduct of party primaries, including resolution of disputes arising from primaries for national and state elections, has been slated for between August 18 and 2018 to October 7, 2018. According to him, political campaigns by the parties for Presidential Election and National Assembly elections would commence on November 18 and end on January 14, 2019; while that of governorship and State Houses of Assembly would start on December 1 and end on February 28, 2019.

The INEC chairman said: “Today is exactly 402 days to the opening of polling units nationwide at 8 a.m. on Saturday Feb. 16, 2019. As political parties and candidates canvass the support of electorate, the commission wishes to appeal to all and sundry to eschew bitterness and conduct their activities with decorum.”

Days after the announcement by INEC, the House of Representatives passed the amendment to the 2010 Electoral Act, which is threatening to change all that. The House, in passing amendments to Section 25(1) of the Electoral Act reordered the elections and proposed that the National Assembly elections would come first on the order.

At a session presided over by the Deputy Speaker, who is the chairman, Committee of the Whole, Hon. Lasun Yussuff, the House recommended that the elections to the National Assembly will come first in the sequence of elections. This is against the practice that was adopted for the 2011 and 2015 elections. In the 2015 elections order, presidential and National Assembly elections came first, while the state elections, governorship and State Assembly elections came next. The amendment by the House of Representatives seeks to replace Section 25 of the extant law, the Electoral Act 2010. The new Section 25(1) being proposed by the House reads: “Elections into the office of the President and Vice-President, the Governor and Deputy Governor of a state and to the membership of the Senate, the House of Representatives and Houses of Assembly of each state of the federation shall be in the following order: National Assembly elections; state Houses of Assembly and governorship elections; and presidential election. The dates for these elections shall be as appointed by the Independent National Electoral Commission.”

At the event in January, INEC chairman, Yakubu had said that the Commission decided to stick to previous practices on the elections in order to ensure stability and predictability of elections. He said: “The decision of the Commission to fix election dates is to engender certainty in our electoral calendar and to enable all stakeholders to prepare adequately for elections, as is the case in many mature and developing democracies. Already, the Commission has concluded its Strategic Plan and the Strategic Plan of Action for the current electoral cycle and beyond covering the period 2017-2021 as well as Election Project Plan.

“The Commission is moving away from the culture of quick fix, fire brigade approach to the management of elections in Nigeria. As our democracy matures, the planning and implementation of electoral activities should be predictable and systematic. This is all the more pertinent given the size and population of the country, the terrain, logistical requirements, the increasing number of political parties, security challenges and number of constituencies for which elections are to be held. For instance, in 2019 the Commission will conduct elections for 1,558 Constituencies made up of one Presidential Constituency, 29 Governorship  constituencies out of 36 (7 Governorship elections are staggered and conducted off-cycle), 109 Senatorial Districts, 360 Federal Constituencies, 991 State Assembly Constituencies, 6 Area Council Chairmen as well as 62 Councillorship positions for the FCT.”

Following the presentation of the House version of the Electoral Act to the Senate, the president of the Senate, Senator Bukola Saraki wasted no time in announcing a conference committee to iron out the differences. The Senate had passed the Electoral Act amendment bill in June 2016, awaiting the passage by the House.

Last week, the Conference Committee on Electoral Act amendment set up by the Senate and the House of Representatives adopted the House version of the bill, which altered the order of elections for the 2019 election. That set the stage for a final passage of a reordered election schedule while will surely alter the version INEC is working with.

Indications in the polity, however, showed that the Presidency and INEC were uncomfortable with the proposal by the National Assembly, but sources confirmed that the two bodies can hardly complain aloud, as the lawmakers appeared intent on seeing through the amendment. It was learnt that some forces in the Presidency had counted the development against Saraki and Speaker Yakubu Dogara, who were said to have been marked for impeachment.

At the Conference committee meeting of the two chambers last week, the lawmakers adopted the version passed by the House of Representatives, which reordered the elections from 2019. The version amended Section 25 of the 2010 Electoral Act to pave the way for Section 25(1) and set out a new order the elections.

As Committee Chairman, Senator Suleiman Nazif, who led 11 other members at the meeting put the question on the passage of Section 25(1), the members replied with a unanimous ‘aye.’

The Senator later clarified that the adoption of the new sequence of election has not in any way affected the provisions of the Electoral Act and especially Section 76 of the 1999 Constitution which empowers INEC to fix dates and conduct elections. He said: “For the avoidance of doubt , this bill with the inclusion of section 25(1) which makes provision for sequence of election different from the one earlier rolled out by INEC has not in any way violated any provisions of the laws governing the operations of the electoral body.”

Eight Senators and four members of the House of Representatives were present at the Conference Committee meeting on Tuesday.

Chairman of the House of Representatives Committee on INEC, Honourable Edward Pwajok, who led members of his committee to the senate wing for the meeting agreed with the Senate colleagues and added that the new order of elections would give credibility to the electoral process in the country.

He said: “The sequence of election provision in the bill is not targeted at anybody but aimed at further given credibility to the electoral process by way of giving the electorates the opportunity to vote based on individual qualities of candidates vying for National Assembly seat.”

He also stated that the lawmakers know what to do if the bill was not assented to by the president. According to him, the lawmakers, who supported the new order of elections, based on national interest would use constitutional provisions at to ensure the bill sees the light of day.

He said: “On whether it would be assented to or not by the president as far as we are concerned remains in the realm of conjuncture for now, but if such eventually happens, we’ll know how to cross the bridge.”

Also speaking at the meeting, Senator Dino Melaye, a member of the Committee said that “the new proposal does not violate the powers of INEC.”

He stated that while the power to fix dates for elections is the right of INEC, the laws of the land empowers the National Assembly to provide schedules for elections. He stated: “So contrary to reports and comments by some Nigerians on the reordered sequence of election, National Assembly have not overlapped its boundaries.”

Despite the hue and cries among some commentators as to the possible self-serving implications for the proposal by the National Assembly at this time, the lawmakers appeared to have perfected the process. Many had insinuated the INEC could go to the Supreme Court to deflate the planned amendment by checks in the constitution and the Electoral Act show that the Constitution gives much latitude to the lawmakers in handling of matters related to INEC and the Federal Executive Bodies which are captured in Sections 153 to 161 of the 1999 law book.

Unlike the situation in 2002 where INEC was able to secure judgement against the National Assembly’s plan to fix election dates, the sixth National Assembly, which amended the Constitution and the Electoral Act had written itself into the law book by indicating that INEC shall conduct and organise elections in accordance with the Constitution and the Electoral Act. Learned legal minds said that with the clever manner the lawmakers had gone about the amendments of the Sixth Assembly, INEC is incapacitated in seeking legal redress about the new Act. Sources said that the National Assembly is working towards passing the whole process not later than six months before the next elections, which are scheduled for February 2019.

“The National Assembly is party to some conventions at the international circles which stipulates that Electoral Acts must not be changed less than six months to elections. That is what the lawmakers are working toward,” the source said, adding that the National Assembly has calculated that the whole process of amending the Electoral Act would end in the two chambers this February.

But the order of elections in Nigeria has been a contentious issue for most election cycles.

The rigmarole started in 2002, with lawmakers entangled in legal brouhaha with INEC. The situation has always been compounded by the fact that each election cycle witnessed new Electoral Acts. The Electoral Acts are also usually amended close to the next elections, thus raising public awareness that some amendments might be targeted at currying favour for a set of contestants. The situation of today was the same as the nation approached the elections of 2003 and 2007 as well as the 2011. Only the 2010 electoral Act has so far survived two elections.

Records on the website of INEC indicate that the first election that ushered in this Republic in 1999 started with the legislative elections (National Assembly and State Assemblies) on February 20, 1999 and executive elections(Presidential and Governorship) on February 27, 1999. In 2003, the order was maintained as elections to Legislative houses (Federal and States) held on April 12, while elections to executive offices (Presidential and Governorship) held on April 19. In 2007, the order got changed as the state elections (governorship and State Assembly) held on April 14, while National elections (Presidential, Senate and House of Representatives) held on April 21. In 2011, the order of election was again changed. National and State Assembly elections held on April 9, while the presidential and governorship elections held a week later on April 16.

That order was reversed in 2015 when national elections held same day while state elections came weeks after. The Presidential, Senate and House of Representatives elections were scheduled for February 14, 2015, while the state elections were scheduled for February 28. But the elections got shifted as the national elections held on March 28, while state elections were held on April 11.

How far can the lawmakers go? Very far as it appears the thinking of the lawmakers is that rather than lump the presidential election with that of the National Assembly, the elections should stand on their own.

Hon. Mark Gbila, a member of the House of Representatives said on Friday that the logic in passing the amendment of the electoral act in the House was in line with constitutional provisions.

According to him, the legislature is the first arm of government mentioned in the constitution and besides, it is also one arm of government that has representatives that touch directly on all constituencies of the country. He said that it would serve democracy better when the legislature, which distinguishes the form of government holds its election first and outside the other polls.

One fear in the minds of the lawmakers is the fact that a presidential election holding either on the same day of before that of the legislature would drag the nation on a bandwagon lane, which could become a campaign tool on the hands of the winning party.

“Many constituencies would be told why they should not be in the opposition if a president had emerged,” a lawmaker said in justification of the planned amendment. Indications from the National Assembly confirm that the amendment would be passed on the floors of the two chambers this week, while the same would be forwarded to the president for assent. What options are open to the president? That is another question. The main tool open to the Preside would be to try and block the passage on the floor. But the determination by lawmakers so far is a sign they would sail the amendment through. Outside that, the president could raise issues and try to delay the passage into law. The plan could be that the president would not make a return as quickly as possible in the hope that the time would wear out on the amendment, while the six month gap to elections could catch up.

But sources in the legislature said that the chambers would mandate the legislative compliance committees to monitor the transmission of the bill to the president, while awaiting the requisite communication. “The Constitution gives the president 30 days to either veto a bill or assent to it. Anything after that the legislature would be free to override the veto,” a source in the legislature said. If the bill is passed this week, the National Assembly and the Presidency would commence a huge countdown in the legislative process, one of the most important in this era.