X-raying details of the new Electoral Law

On Wednesday, March 29, the Senate eventually passed the amendments to the Electoral Act, changing the face of the 2010 Act which has seen the conduct of two general elections. Group Politics Editor, TAIWO ADISA examines the key aspects of the new law.

THOUGH it has tyranny of the majority, among others, as its drawback, democracy is widely held as the best system of government in the modern world. One key component or principle of democracy is election, which is a vehicle to recruit leaders into political offices.

It is not enough for countries to just conduct elections. An election and its associated activities must be free, fair and credible. This is why conduct of credible elections confers legitimacy on any government and is seen as an index of development. In fact, receiving grants from international donor agencies is sometimes tied to the adoption of democratic governance through credible election in recipient countries.

In Nigeria and quite a number of third world countries, election is viewed as a war that must be fiercely fought and regardless of whether blood is shed. High remunerations for political officeholders, humongous perks and privileges triggering the lust to sap and not serve remain some of the factors responsible for the high-octane violence that characterises elections in these climes.

To regulate the conduct of stakeholders in any election in the country, certain basic frameworks are documented in some Sections of the 1999 Constitution as amended and the Electoral Act. In some of the provisions of these laws, severe penalties are attached to infractions that can impeach the integrity of the electoral process.

But in practice, the political actors in collaboration with the officials of the election umpire, the Independent National Electoral Commission (INEC), have more often than not found ways to circumvent critical provisions of the laws and the electoral guidelines.

Various measures and efforts have equally gone into plugging identified loopholes in the laws with a view to ensuring sanity in the electoral process. The current election law known as Electoral Act, 2010, has gone legislative furnace for about four times, with the current proposed amendments being the fifth.

The route to the current amendments

The 2010 Electoral Act, which appears the most enduring in the history of Electoral laws in the Fourth Republic, appears set to wear a new look following some bold moves from the Senate and the House of Representatives to change its outlook.

The process actually started in the Seventh Senate but was cut short as the Committee on Independent National Electoral Commission (INEC) was unable to complete its assignment. In the case of the Eighth Senate, the bill had come up for the third and final reading on two previous occasions. Many were already getting wary as a result of the perceived lukewarm attitude of the lawmakers to see the amendment through. The first time the bill appeared on the Senate floor for third reading, it only escaped being given the final blow by the whiskers as Senators took up arms against several provisions. Many of the lawmakers were against the proposals of the Committee on in trying to solve the imbroglio that engulfed the election process in Kogi state during the November 2015 governorship election when the leading Governorship candidate, Alhaji Abubakar Audu died midway into the election.

Following the debacle that enveloped the election in Kogi in 2015, not a few got the jolt. The Senate immediately got two bills, SB 231 and SB 234. While bill 231 seeks to strengthen the Independent National Electoral Commission (INEC) by giving it more powers and providing for substitution of candidates in the event of death after the conduct of primaries, proponents of SB 234 are seeking a holistic amendment of Electoral Act No 6 of 2010. The two bills were consolidated and marked the Consolidated Bill (SB 231 and SB 234, as redrafted) seeks to amend the Electoral Act No.6 2010 and will overall strengthen the capacity of INEC(the Commission) to conduct free, fair and credible elections.

One of the key amendments to the Electoral Act 2010 as passed by the Senate on March 29 is the amendment of Section 8 with the insertion of subsection 5 which prohibits a politically exposed person from taking up appointments at INEC.

The new electoral law in Section 8(5) reads: “A person, who being a member of a political party, misrepresents himself by not disclosing his membership, affiliation or connection to any political party in order to secure an appointment with the Commission in any capacity, commits an offence and shall be liable, on conviction, to imprisonment for at least five years of a fine of at least five (5) years of a fine of at least N5, 000, 000 or both.”

The Senate in its explanatory remarks on the justification for his insertion said that the new clause will deter members of political parties from fraudulently gaining employment in INEC in pursuit of partisan 8nterests. The section also imposes the duty on any prospective employee of INEC to make full disclosure about his or her person.

In another amendment, the Senate grounded the pursuit of electronic voting in law by providing an amendment to section 9 of the existing Act. Section 9 (1) (A) newly introduced provides that the Commission shall keep its voters register both in paper and electronic form.

It indicates that: the Commission shall keep the Register of Voters as the National Register of Voters in its National Headquarters and other locations as the Commission may determine from time to time: Provided that the Commission shall keep the Register in:

(a) Electronic format in its central database, and (b) Manual electronic format in its Central database.”

The lawmakers also amended Section 19 of the Electoral Act 2010 by providing that INEC shall cause the display of Registered voters not later than 30 days to the general election. Whereas the existing Act provides that INEC shall display the voters register for a period not less than five days and not exceeding 14 days.

The new section 19(1) reads: “Subject to the provisions of Section 9 (5) of the Act, the Commission shall not, not later than 30 days to a general election, appoint a period of seven days during which a copy of the voters’ register for each local government, Area Council or Ward shall be displayed or published for public scrutiny at very Registration Area and on its official website or any website established by the Commission for that purpose.”

In Section 19(1) (a), the new law provides that the Commission shall effect corrections in the voters register in accordance to observations made by voters whose names are omitted or any other necessary correction.

It goes further to provide that any official of INEC who fails to comply with Section 19(1)(a) above shall be guilty of an offence liable upon conviction to imprisonment for a term of six months or a fine of N100,000 or both.

Addressing the Kogi debacle

In addressing the Kogi debacle of November 2015, where a nominated candidate dies midway into an election, the Senate amended Section 36 of the Electoral Act 2010 by including a new subsection 3 which reads:

“If after the commencement of poll and before the announcement of the final result and declaration of a winner, a nominated candidate dies,

(A)“The commission shall, being satisfied of the fact of the death, suspend the election for a period not exceeding 21 days;

(B)“The political party whose candidate died my, if it intends to continue to participate in the election, conduct a fresh direct primary within 14 days of the death of its candidate and submit a new candidate to the Commission to replace the dead candidate; and

(C)“Subject to paragraphs (a) and (b) of this subsection, the Commission shall continue with the election, announce the final result and declare a winner.”

In its explanatory memorandum on the section, the new law indicates that the subsection fills the lacuna created in the law which manifested in Kogi state when the governorship candidate died before results were announced. The Senate also said that the subsection satisfies the provision of Section 141 of the Electoral Act which provides that candidates must participate in all stages of an election.

Also, the Senate amended Section 112 of the 2010 Act by inserting a new subsection (4) to take care of a situation where a candidate dies midway into an election as seen in Kogi state in November 2015.

Equal opportunities to all parties

The new law also seeks to provide equal opportunities to political parties at the polling stations by providing that polling agents must be allowed to monitor the process of delivery of voting materials before the commencement of election and that such process may be recorded in video or any electronic form. This was provided through the amendment of Section 43 of the Act by inserting subsections 4A, 4B and 4C respectively.

Subsection 43 (4A) provides that: “Polling Agents who are in attendance at a polling unit, shall be entitled , before the commencement of the election, to have originals of electoral materials including ballot papers, result sheets, ballot papers’ accounts and verification documents and other electoral forms to be used by the Commission for the election inspected; and this process may be recorded in  writing, on video or by other means by any Polling Agent, accredited observer or official of the Commission.”

Section 43 (4B) also provides that: “An election conducted at any polling unit in violation of Subsections (3), (4), (4A) of (5) of this section shall be invalid.”

And to further drum home the intendment of this subsection, the law provides that a presiding officer who contravenes the provisions above shall be guilty of an offence.

43(4C) reads: “A Presiding Officer who contravenes subsections (3), (4), (4A) or (5) of this section commits an offence and shall be liable, on conviction, to at least one (1) year imprisonment or a fine of N100, 000 or both.”

The explanatory memorandum indicates that the new insertions will assure party agents that electoral documents have not been tampered with and also prevent monopoly of control of election at the polling unit by any dominant party.

The memorandum explained further that the attachment of criminal sanction to the exclusion of other parties from the election is deterrence for the Commission’s staff in view of what it called expected greater attention to such issues from the proposed Election Offences Commission. The senate further explains that the new subsections will ensure that recording the election process will provide electronic evidence to checkmate electoral irregularities ad for the prosecution of alleged electoral offenders.

Still on enhancing the degree of confidence of political parties in elections, the new law provides in Section 44 that INEC shall not later than 20 days to the election invite in writing a political party fielding candidates for an election to inspect its identity appearing in samples of relevant electoral materials proposed for the election and that the party shall state in writing within two days of the

invitation whether it approves or disapproves of the identity that appears in the samples. The lawmakers said in the explanatory memorandum that this will reduce the cases of election petitions which are predicated on unlawful exclusion due to omission or misstatement of party’s identities which had led to nullification of elections in the past.

The card reader

One innovation that stood the 2015 election out was the introduction of the Card Reader machine. Though it came with mixed bag in different locations, stakeholders have however called for its modification to cater for the lapses rather than disband it.  The Senate took clear notice of that as well as the verdict of the Supreme Court which indicated that the Card Reader was not backed by law.

The new law legalized the Card Reader in Section 49. The law in Section 49(1A) reads: “A person intending to vote in an election shall present himself with his voter’s card to a Presiding Officer for accreditation at the polling unit in the constituency in which his name is registered.”

49(2) states that “The Presiding Officer shall use a Smart Card Reader or any other technological device that may be prescribed from time to time for the accreditation of voters, to verify or authenticate-

(A) the genuineness or otherwise of the Voter’s card;

(B) that the Voter’s Card presented by the voter is registered at the polling unit in the Constituency in which the card is presented;

(C) the biometric connection or otherwise of the intending voter with the voter’s card; and

(D) the number of duly accredited voters in the polling unit.”

Section 49(4) of the new law indicates that where the Card Reader fails, the Presiding Officer, being satisfied of the genuineness of the Voter’s card register a person to vote provided that the number of persons with such challenges does not exceed 10 percent of the total number of registered voters. If the number of persons with such incidents however exceeds 10 percent of the registered voters, the law provides that the election be suspended till another day especially if the result from that polling unit may affect the overall result of the Constituency. The Commission is empowered to conduct any election suspended in relation to subsection 4 within seven days of its suspension.

Section 49(6) indicates that subject to subsections 1,2,3 and 4 of the above section, “the Presiding Officer shall, upon confirming that the intending voter’s name is on the Register of Voters, issue him with a ballot paper and record by ticking on the Register of Voters that the intending voter, having been accredited to vote in the particular election.” The law further provides that the number of intending voters ticked for accreditation shall not be inconsistent with the intending voters accredited under subsections (3) and (4) of this section.

In section 49(8), the law provides that at the end of accreditation of voters, the Presiding Officer shall instantly transmit the total number of intending voters accredited to vote with all other voters accreditation data already captured in subsection (3) and (4)  by secured mobile electronic communication.

The data are expected to be transmitted to:

(a)  collation centre at each level of collation to which the polling unit belongs in the constituency where election is held; and

(b)  Central database of the Commission kept at the National Headquarters of the Commission.

The above is however to be done after the Presiding Officer shall first record the total number of intending voters accredited to vote and other relevant voter accreditation data of the unit in electoral forms or electoral documents which shall be prescribed by the Commission for that purpose and provide duly signed copies to Poling Agents.

In Section 49(9) the law provides that: “In respect of data of accreditation of voters, including polling unit results, for a particular election, the Presiding Officer shall not shut down its central database kept at its National Headquarters, until all election petitions and appeals pertaining to that election are heard and determined by the Tribunal or Court as the case may be.”

In Section 49(11) the law provides that the result of an election in a polling unit shall be declared invalid, null and void either by the Commission or the Tribunal or Court on two grounds. The grounds are provided in the following subsections:

(A)In the case of the commission, there is no record of accreditation directly from the Smart Card Reader or any technological device used by the Commission in that polling unit for accreditation of voters, or

(B)  In the case of the Tribunal of Court, there is no certified report of accreditation issued by the Commission under subsection (11) of this section.

In Subsection 12, the law provides that “A Presiding Officer who intentionally contravenes any provision of the above section shall be guilty of an offence and shall be liable, on conviction to imprisonment for at least 5 years, without an option of fine.”

Electronic voting

In section 52, the new law amended the 2010 Electoral Act by inserting subsection 2 to make provision for electronic voting. It provides that “The Commission shall adopt electronic voting in all elections or any

other method of voting as may be determined by the Commission from time to time.” the Senate states in the explanatory memorandum that the amendment of Section 52 mandates e-voting without ambiguity but also give the Commission the discretion to use other methods if it is impracticable to use e-voting in any election.

In Section 63, the new amendment provides for electronic transfer of votes where electronic voting is adopted. Section 63(4) indicates that: “Except electronic voting is adopted by the Commission and does

not permit manual counting of votes, the Presiding Officer shall count the votes and announce the result at the polling unit and, instantly thereafter, transmit the votes and result of the election in the polling unit by secured mobile electronic Communication to the:

(c) collation centre at each level of collation to which the polling unit belongs in the constituency where election is held; and

(d)  Central database of the Commission kept at the National Headquarters of the Commission.

In subsection 5, the law provides that “The process and procedure in subsections (1) to (4) may be recorded by any member of the public, party agent, accredited observer or official of the Commission.”

It was further provided in subsection 6 that any Presiding Officer who contravenes that above provision shall be guilty of an offence and liable to imprisonment for at least five years.

National electronic register of election results

In section 65 (A) (1) the law provides for the establishment of a National Electronic Register of Election Results which any interested party can apply for on payment of a fee.

The Section provides that: “The Commission shall compile, maintain and update on a continuous basis, a National Electronic Register of Election Results which shall be a distinct database or repository of polling unit results, including collated election results, of each election conducted by the Commission in the Federation, and the Register of Election Results shall be kept in electronic format by the Commission at its National Headquarter.”

The explanatory memorandum indicates that the new electronic register would provide for proper archiving and ease of access to results.

In section 87, the new law provides for political parties to nominate candidates to elections through direct or indirect primaries. The law states that such primaries shall be monitored by INEC and the result of every candidate shall be endorsed and certified by the Commission.

In Section in 87 (2), the new law ousts the plot by certain individuals to disqualify candidates through non-provision of tax certificates. It states that: “A Political party shall not impose nomination qualification or disqualification criteria, measures, or conditions on any aspirant or candidate  for any election in its constitution, guidelines, or rules for elections, except as prescribed under Sections 65, 66, 107, 131, 137, 177 and 187 of the Constitution of the Federal Republic of Nigeria, 1999(as amended).”

The new law in Section 87(3) stipulates the ceiling for amounts a political party can charge its aspirants and candidates for the different categories of elections from the President to councillorship seats.

The bill indicated that fees payable to the parties by councillorship aspirants should not exceed  N150, 000.00, Local Government Chairman are to pay N250, 000.00, State House of Assembly members are to pay N500, 000.00, a House of Representative aspirant is to pay N1, 000,000.00, Senatorial aspirant will pay N2, 000,000.00, Governorship aspirant is to pay N5, 000, 000.00 and the presidential aspirant will pay N10, 000,000.00.

Section 87 (24) the amendment reads: “Notwithstanding the provisions of this Act or rules of a political party, an aspirant who complains that any of the provisions of this Act or rules of a political party has not been complied with in the nomination of a candidate of a political party for election, may apply to the Federal High Court or the High Court of a State or the FCT for redress.”

In Section 87(25) the amendment provides that courts cannot stop the conduct of elections: “Nothing in this section shall empower the courts to stop the holding of ad-hoc delegates’ elections, primaries or general election or the processes thereof under this Act pending the determination of the suit.”

The law also defines direct and indirect primaries, giving the political parties the discretion of choosing either of the approaches. It also stipulates the processes for choosing each category of candidates for the primaries.

The new law as passed in the Senate states that though the courts can entertain cases relating or arising from conduct of party primaries from aggrieved aspirants, it cannot stop any primary election from holding.

In Section 140(2) the new law indicates that a Tribunal of Court after nullifying the election of a candidate for non-qualification, it shall go ahead to declare the runner ups in the election as the winner. It distinguishes nullification on grounds of non-qualification from non-compliance with provisions of Electoral Act in elections.

In Section 151, the law attempts to checkmate antics of Electoral Commission officials who may try to frustrate inspection of materials after elections or as ordered by the Tribunal or Court.

Section 151(3) states that “Where there is a breach of an order of a court or tribunal directed at the Commission particularly, order to produce, inspect or take copies of electoral materials, such disobedience shall attract court sanctions, which shall include the committal by the Tribunal or Court of the Commission’s official to whom the order is directed to summary conviction to imprisonment for at least two (2) years, without an option of fine.”