2023 elections and the Electoral Act

AS politicians are already crisscrossing the land for fresh realignment of forces, KUNLE ODEREMI examines main outstanding issues in the nation’s Electoral Act, as the Senate sets March next year to deliver a new electoral framework for the 2023 general election.

THE  National Assembly has promised that by March 2021, the Electoral Act 2010 currently in the process of amendment to serve as the roadmap for the 2023 general election will be ready. In keeping with that promise, stakeholders are expected to make their further inputs into the draft before the ninth Assembly at a public hearing slated for today in Abuja. All-important national assignment is coming a few weeks after a hint at the screening of Professor Mahmood Yakubu, following his reappointment for another five years as the chairman of the Independent National Electoral Commission (INEC) by the Senate. The chairman of the Senate Committee on INEC, Senator Kabiru Gaya, had spoken on the concerted effort and synergy among all the necessary stakeholders on the electoral framework. “We are going ahead of that time. On the 9th of December, we are doing public hearing, so that we can fast track the passage of the Electoral Act by March next year,” the former governor of Kano State said.

Some of the grey areas in the existing electoral system are usually encapsulated as security, deployment of modern technology, general impunity, infractions during elections, volatile and hostile environment, curious judicial and legal pronouncements on election-related matters, as well as  number of political parties, lack of comportment by the main political actors and absence of internal democracy in the parties. For instance, more than 105 persons lost their lives in-election related violence in 2015; with 626 killed before electioneering for the 2019 elections. Almost two years after the last general elections, the INEC is still bugged down by an avalanche of cases arising from the conduct of the elections. The INEC was reported to have decried that it had to withdraw the 64 certificates of return of those it declared as the winners of the 2019 elections and reissued the certificates to other people based on judicial pronouncements.

Many other observers, however, contend that the issues pertaining to the electoral system and process are far deeper than those aforementioned.  According to them, the quality of the Electoral Act or legal framework is crucial and critical as it sets the template. This, according to them, is where the need for collaborative effort becomes germane. All issues that concern the deployment of modern technology, e-voting and Diaspora voting and other requirements that could up the ante in the nation’s electoral system to global standard are embedded. This is aside the political will on the part of those in authority necessary to drive the overall process meant to enhance the integrity of the elections. That process includes the gathering of inputs into the Electoral Act amendment.

According to Festus Okoye, who, incidentally, is a top functionary of INEC today in his discussion paper titled: The Prosecution of Electoral Offenders in Nigeria: Challenges and Possibilities, the task of re-jigging the Electoral Act requires serious reflections on how the system also tries to tackle and deal with electoral offenders. He said: “Like most human endeavours, the framers of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the Electoral Act, 2010 (as amended) proceeded from the assumption that election must be free and fair and it is its freeness and fairness that guarantees its integrity. They also proceeded from the assumption that elections are subject to human imperfections and that since every stage of the electoral process is vulnerable, electoral fraud and manipulation may be difficult to prevent. It is the acknowledgement of human imperfections in the conduct and management of elections that accounts for the electoral provisions in Part V111 of the Electoral Act, 2010 (as amended) relating to electoral offences and the penalties and sanctions for infraction of the provisions of the law.”

Okoye also observed that “Although the law prescribes the processes and procedures for the legitimacy of elections, the same law also recognises that things may not always go as prescribed. In which case, candidates and political parties that participated in an election may question the legitimacy and legality of such elections before the election tribunals set up for that purpose. The law also recognises the fact that some individuals and groups may attempt to subvert the electoral process and attempt to come to power through illegal means. It is on the basis of this that the law has created electoral offences and prescribed punishment for those that breach the provisions of the law. People expect that elections will be credible and conducted in accordance with the law and the Constitution. However, when the electoral framework is skewed and manipulated to achieve pre-determined outcomes, the credibility of the process and its outcome is put in doubt. When elections are rigged or manipulated, those who lose such elections are most likely to reject the results.” He was of the view that they were more likely to accept the results of an election conducted in accordance with the law and the constitution, adding that the issue of effective sanctions for breaches of election laws, rules and procedures poses an important challenge to the credibility of elections in Nigeria.

The keepers and INEC national commissioner added: “The debate in Nigeria with respect to the administration of electoral justice relates not only to the inadequacy of existing provisions on electoral offences, but also the seeming inability to prosecute and secure convictions of electoral offenders. There has been consternation and sometimes anger at the inability of the Nigerian State to prosecute electoral offenders. This, some Nigerians allege, may be responsible for the progressive degeneration of the electoral. The fundamental question is whether these sanctions are stringent enough to dissuade people from taking the laws into their hands and using subterfuge to corrupt the electoral process. Coterminous to this is whether the fundamental challenge lies with effective sanctions or the inability of the agency saddled with the prosecution of offenders to prosecute them and for the Courts to impose sanctions prescribed in the law. It is clear that some of the sanctions prescribed for most of the electoral offences in the electoral act are mild while some of them are adequate. This is considering the fact that stiff sentences do not necessarily deter people from committing offences and the goal of sentencing is to act as a deterrent and at the same time to be correctional. The basic challenge is that most politicians and political parties want to win elections by all means and are ready to go to any length to do so. They also recognise the weaknesses of investigating and prosecuting institutions and are ready to take the risk and commit electoral offences believing that they can exploit the said weaknesses and get away with their crimes.”

INEC and partners

And as an institution, the INEC occupies a strategic place in the ongoing efforts to firm up the Electoral Act. In consonance with such role as a critical stakeholder, the commission has initiated 34 areas of amendments to the Electoral Act. They are largely informed by perceived inadequacies in the existing electoral legal framework. In fact, some stakeholders believe that it was time for delimitation of constituencies because of the rise in population of the country and number of registered voters. The fresh delineation has a direct correlation to proportional and fair representation, an issue that has continued to dominate the political space due to the tangential relations to equity, justice and fairness. In the words of some analysts, any lacuna in the electoral framework cannot guarantee balance and equilibrium in the political equation of the country. In that regard, the INEC in conjunction with other major stakeholders and local and foreign partners frequently synergise and interface in a deliberate effort to deliver a justifiable Electoral Act for the country. One of such was a one-week retreat on the review of the electoral legal framework jointly organised by the commission, the European Centre for Electoral Support (ECES) and the International Foundation for Electoral Systems (IFES). Among the issues that came up at the retreat was the importance of special courts for electoral offences that would have a defined timeframe for prosecution and speedy administration of justice.

One of the speakers advocated that the commission should critically “examine the issue of conflict of interests among our external solicitors that represent the petitioners in other matters. According to the speaker, “The commission should ensure that such solicitors do not represent any petitioner throughout the period of election petitions in the tribunals and courts of competent jurisdiction.” Professor Yakubu, who was then serving his first tenure as INEC chairman, used the opportunity of the retreat that attracted a broad spectrum of other stakeholders, including members of the National Assembly, to shed light on the proposed amendment from the commission. He explained that the review of the electoral act would increase citizens’ confidence, enhance the transparency and credibility of the electoral process; entrench internal democracy within political parties; reduce violence, expand the scope of participation for women, youths and people living with disability; deepen the use of technology and foster independence of INEC. Yakubu enthused: “This is the first time that the National Assembly and INEC are coming together on electoral reform. We look forward to this opportunity to serve Nigerians better.”

ECES facilitated a citizens’ townhall on electoral reforms in June 2020 within the framework of the EU Support to democratic governance in Nigeria. According to the organisers, it was with the aim of promoting a national conversation and action on electoral reforms ahead of the 2023 general election. In effect, it was meant for stakeholders to build national consensus on priority issues for electoral reforms through an inclusive and collaborative process, with the key speakers coming from INEC, National Assembly, political parties, security agencies, civil society organisations, citizens, academia and the entertainment industry. According to the organisers, at the end of the day, the dialogue generated a consensus and commitment among all critical stakeholders involved in the electoral process towards ensuring the availability and implementation of an electoral legal regime that will engender access, participation and inclusivity for all Nigeria’s electorate. In other words, they succeeded in aggregating the views and opinions of all critical stakeholders on priority areas for electoral reforms and to prioritise the completion of work on the current amendment bill before the National Assembly and the assent of the bill by the President. The three-prong objective of the retreat were to bring back electoral reforms as a topical issue agenda for the National Assembly and citizens; to provide a platform for stakeholders to their agenda on electoral reforms; to mobilise citizens to advocate for political and electoral reforms and engage the reform process.

What has changed since 2018?

Among the other grounds of contention in the bill for the amendments of the Electoral Act preparatory to the 2019 elections was the sequence. It was essentially the reordering of the sequence of the elections, with the presidential poll coming last, instead of the governorship and state Houses of Assembly. However, the President held the nation spellbound in 2018 before he finally made up his mind after the amendment of Electoral Act. The National Assembly passed the bill on July 24 and transmitted it to President Buhari on August 3. His decision to withhold assent to the document provoked mixed feelings among a preponderance of stakeholders. A major concern of most stakeholders currently is if those circumstances and issues that informed his refusal to sing the Electoral Act do not subsist. In the letter to the National Assembly, the president premised his action on some sections in the document. In the letter, he opined that such law was capable of jeorpardising the 2019 general election. Accordingly, he stated: “Pursuant to section 58 (4) of Constitution of the Federal Republic of Nigeria 1999 (as amended), I hereby convey to the House of Representatives, my decision on 6th December 201 to decline Presidential Accent to the Electoral (Amendment) Bill , 2018 recently passed by the National Assembly. I am declining assent to the Bill principally because I am concerned that passing a new electoral bill this far into the electoral process for the 2019 general election which commenced under the 2015 Electoral Act, could create some uncertainty about the applicable legislation to govern the process. Any real or apparent change to the rules this close to the election may provide an opportunity for disruption and confusion in respect of which law governs the electoral process.”

In craving the understanding of the stakeholders, the President urged the lawmakers to take a fresh look at a number of clauses in the bill, adding: “This leads me to believe that it is in the best interest of the country and our democracy for the National Assembly to specifically state in the bill that the Electoral Act will come into effect and be applicable to elections commencing after the 2019 general election. It is also important for the following drafting amendments to be made to the bill: section 5 of the bill, amending section 18 of the Principal Act should indicate the subsection to which the substitution of the figure “30” for the figure “60” is to be affected. Section 11 of the bill, amending Section 36 should indicate the subsection in which the proviso is to be introduced.”

What has changed since 2018 when the president withheld his assent and now to assure optimism? Is there a paradigm shift in political configuration, structure of the executive and the legislative arms of government? Is there is a new think and political consciousness such that inspires confidence about the possibility of raising the bar in terms of the integrity of elections and service delivery? How much of national cum collective interest is at stake in the latest initiative to re-jig the Electoral Act for optimal performance, transparency and efficiency? To what extent will parochial interest give way to national goal and objectives? These questions will wait for answers as the National Assembly begins work on the Electoral Act for the conduct of the next general election in the country.

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