Revisiting Electoral Act amendment

The continued intervention of the court in resolving electoral issues has put a blot in the capacity of the Independent National Electoral Commission (INEC) to deliver credible elections to Nigerians. But many political stakeholders believe that only a review of the Electoral Act 2010 (as amended in 2015), particularly revisiting the amendments done to the law by the last National Assembly, can bring the needed respite to the country’s electoral system write DARE ADEKANMBI, LUCKY UKPERI and OLAMIDE ENIOLA.

Apart from the 1998/1999 elections which ushered in the current Fourth Republic and were supervised by the military, subsequent elections have greatly come short in glory of how polls should be properly and creditably organised. Observers view as a sad commentary the scale of heist at elections held since 2003 and ironically supervised by civilian governments.  Consequently, the clamour by citizens and civil organisations for a reformed electoral law has become more strident in recent times.

In the build up to the last general election, hopes were high that some reforms were going to take place in the remaking of the primary law that guides the conduct of elections in the country. But the optimism was extinguished soon as it developed.

President Muhammadu Buhari, three times, refused to assent to the amended Electoral Act 2015, citing various reasons. Thus, out of the window flew a golden chance for the country to rewrite its very dirty electoral history, one which could possibly have made the 2019 elections a benchmark for future elections. The refusal of Buhari to sign the amended Act did not give Nigerians the opportunity to see the workability of the amendments inserted in the re-made law, although the new law makes far reaching promises towards tidying up the electoral process.

But should the ‘paradise lost’ in 2019 not become ‘paradise regained’ before the 2023 elections? That is the question perceptive Nigerians, including the president of the Nigeria Labour Congress (NLC), Ayuba Wabba, are asking.

Speaking recently, the NLC president, Wabba, in anticipation of 2023 elections, called for the urgent amendment of the Electoral Act. According to him, there are still rooms for improvement in the laws governing elections in the country.

“We have seen that there are still a lot of rooms for improvement in our electoral process, be it on the aspect of the law, be it on the aspect of how to choose candidates, be it on the aspect of inclusion, particularly gender and youth, those are areas that we need critical reforms on,” he said.

As the mouth-piece for the workers, he noted that the workers do not want reforms that will come at the eve of elections, adding that “We want this reform to come earlier so that people will get used to those reforms or amendments to the act.”

Unfortunately, the ninth National Assembly has not deemed it fit and proper to begin deliberations on the bill as passed in 2018 and see what further changes can be included in the light of the gaps noticed in the electoral process of the 2019 elections or if it could override the president’s refusal to sign the passed amendment bill into law.

The governorship elections coming up in Edo State this month and Ondo next month would have provided platforms to test the law and neaten rough edges in the electoral system.

 

The old versus new

The current election law was made in 2010 and it is called Electoral Act 2010. It has since been amended a couple of times with the latest being the one done by the last National Assembly known as the Electoral Amendment Act 2018 which was not signed into law by Buhari.

The amendments to Electoral Act 2010 were contained in about 50 clauses in the unsigned law. Some of these clauses are stated below:

Section 8 of the 2010 Act makes provision for the appointment of a Secretary for the Independent National Electoral Commission (INEC) and other staff. But in the amended Act, subsection 5 which penalises any INEC officer who knowingly fails to disclose their political affiliation with a fine of at least N5million or five years jail term or both, was inserted. The import of this is to guard against partisanship on the part of those saddled with election conduct.

Section 9 (1 and 5) of the 2010 Act mandates INEC to compile, maintain and update a national register of voters and stipulates the timeframe for such exercise. In the amended Act, a subsection which makes it necessary for INEC to also keep an electronic format of the register in its central database in additional to the manual was passed by the Bukola Saraki-led National Assembly. This was done to give legal backing to INEC issuing certified format of the register in printed copies. Issuance of electronic format of the register has been a subject of intense legal debate at election petition adjudication.

Section 25 of the 2010 Act is about determination of days and order of election. The power for both is warehoused in INEC in the 2010 Act. In the amended Act, however, such power as to the order of election was taken from INEC. The Saraki-led National Assembly substituted the old section with a new one which stipulates the order of elections as follows: National Assembly, State Assembly and governorship, while the presidential election will come last.

Hot debate dogged this decision by the last National Assembly, especially with the amendment coming weeks after INEC had announced the dates and order of elections. The amendment was largely berated as self-serving and occasioned by the acrimony between the leadership of the last federal legislature and President Buhari. Some non-aligned commentators, however, still support the stipulation of election order in the Act and the retention of the format inserted by the last legislature.

 

Also amended in the old Act is Section 31 which is essentially about submission of list of candidates and their affidavits by political parties. The old and new agree that court can disqualify any candidate found to have presented false information in the documents submitted to INEC for the purpose of contesting in an election. The amendment however goes further to stipulate that if such a candidate has already been elected at election, s/he will be ineligible to run in a bye election which must be conducted within 90 days of the nullification of the election.

The political logjam created in the Kogi State governorship four years when Alhaji Abubakar Audu, All Progressives Congress (APC) candidate, died before the conclusion of the election, was taken care of in the amended law. Section 36 of the old Act, which deals with death of a nominated, was amended to include that the party of a candidate who dies after commencement of polling before the declaration of results shall, within 14 days, conduct a fresh primary to pick another candidate instead of the Kogi scenario where the name of the person who came second in the earlier primary was submitted as substitute.

Section 52 (2) of the principal Act which empowers INEC to conduct election by open secret ballot procedure was amended to empower the electoral umpire to conduct elections via electronic and other means as it may deem necessary. This and other sections give legal backing to the use of Smart Card Reader and other electronic gadgets INEC may want to introduce to make elections tidy.

There are other amendments relating to post-election activities such as inspection of election materials by on the orders of election petition tribunal or court. The amendment provides for jail term penalty for INEC staff and officials who refuse to comply with the order on time. INEC cannot, based on whims and caprices of its officials, cancel the results of election, except the total number of votes cast at such election exceeds the total number of registered and accredited voters.

 

INEC and non-observance of law, rules

There have been calls for the need for transparency in campaign finances and provision was made for such legitimate inquiry in the Electoral Act 2010. However, in the build up to the 2019 general election, some shadowy, if not faceless, groups reportedly paid on behalf of prominent presidential candidates the costly nomination fees in both the ruling All Progressives Congress (APC) and the main opposition Peoples Democratic Party (PDP).

This was despite Section 91 (9) of the Act (as amended) which states that, “No individual or other entity shall donate more than N1million to any candidate.” The punishment for those who violate this provision is spelt out thus: “A candidate who knowingly acts in contravention of this section commits an offence and on conviction shall be liable – (a) in case of presidential election to a maximum fine of N1m or imprisonment of 12 months or both.”

Section 29(3) of the Electoral Act specifically states that military involvement in the elections shall only be at the request of INEC and only for the purpose of securing the distribution and delivery of election materials and protection of election officials.

However, in clear departure from the provision of the law, the Federal Government usually deploys troops nationwide during elections, without any coordination with INEC. A good example was the statement by President Buhari in the last general election. In the statement, the president warned that people who would attempt to snatch ballot boxes risked paying with their lives. Going by the Electoral Act, Buhari’s statement was nothing but surplus to requirements.

Perhaps the greatest form of electoral act violation has come from INEC itself in the way it wields the power to postpone elections. In the last three consecutive general elections in 2011, 2015 and 2019, the body has had to postpone the presidential and National Assembly elections for reasons other than the ones provided in the Electoral Act.

According to Section 26 (1) of the Electoral Act 2010 (as amended): Where a date has been appointed for the holding of an election, and there is reason to believe that a serious breach of the peace is likely to occur if the election is proceeded with on that date or it is impossible to conduct the elections as a result of natural disasters or other emergencies, the Commission may postpone the election and shall in respect of the area, or areas concerned, appoint another date for the holding of the postponed election, provided that such reason for the postponement is cogent and verifiable.”

Given that that the 2015 general election was postponed due to security reasons, the problem with the 2011 and 2019 postponement is that no tangible evidence was given to warrant any of the legal justifications, namely likelihood of “a serious breach of peace,” “natural disasters,” or “other emergencies” were at play. Instead, the elections were postponed due to logistics, bad weather and sabotage.

The country may have missed the opportunity for the new law to be applied in off-cycle elections in Kogi, and the ones coming up in Edo and Ondo states, if the lawmakers get their act together and reviewed or re-pass the Electoral Act, the importance of the amendments towards sanitising election in the country may be gauged in off-season elections coming up in Anambra and Osun states before the general election of 2023. Thus, there is no better time than now for the lawmakers to begin deliberations on the Act and other laws that can help neaten the electoral system.

 

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