2023 and highlights of the Electoral Act 2022

Ahead of the 2023 general elections, a lot of things did not only change within the political space but also in the laws that will regulate the political activities; it’s the Electoral Act, 2022, singed into law by President Muhammadu Buhari on February 25, 2022.

The Electoral Act, 2022, by its provisions of Section 152, repeals the Electoral Act, No. 6, 2010. This is a significant legislation and landmark improvement to Nigeria’s Electoral Law. The Electoral Act, 2022, is targeted at regulating the conduct of Federal, State and Area Council Elections.

Section 151 provides for the procedure for Local Government election in furtherance of paragraph 11 of Part II of the 2nd Schedule to the Constitution. This new Act further spells out the duties and functions of the Independent National Electoral Commission (INEC), which was established by Section 153 of the 1999 Constitution, as a body corporate capable of suing and being sued.

In contrast to the Electoral Act 2010, the Electoral Act 2022 retains the following provisions but with specific improvements: The establishment and functions of the Independent National Electoral Commission (Part I, Sections 1 – 7), Staff of the Commission (Part II, Section 8), National Register of Voters and Voter Registration (Part III, Sections 9-23), Procedure at Election (Part IV, Sections 24-74), Political Parties (Part V, Sections 75-97), Procedure for Election to Area Council (Part VI, Sections 98-113), Electoral Offences (Part VII, Sections 114-129), Determination of Election Petitions Arising From Elections (Part VII, Sections 130-141), and Miscellaneous Provisions (Part IX, Sections 142-154).

Significant improvements of the Electoral Act, 2022, are its provisions for restriction of the qualification for elective office to relevant constitutional provision, use of card readers and other technological devices for elections and party primaries, provision of a time frame for the submission of a list of candidates, criteria for change or substitution of candidates after submission of list of candidates, limit of campaign expenses and the omission of names of candidates or logo of political parties.

First and foremost, Section 3 states that funds to conduct the general election must have been released to the commission at least one year before the election, and the commission shall be responsible for setting out rules for the disbursement of the funds.

Section 84 provides for the nomination of candidates by Parties for elective positions either by Direct Primaries, Indirect Primaries, or Consensus, and sub-section 12, being the most controversial, provides that Political appointees – ministers, commissioners, special advisers, etc., must first relinquish their position before they become eligible either as a voting delegate or an aspirant.

This has spurred argument as the President objected, and others argued that it violates Section 40 of the Constitution Of Federal Republic of Nigeria, 1999 (as amended)- The Right to Peaceful Assembly and Association, and Section 42 – Right to Freedom from Discrimination.

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On the other hand, Section 66(f), 137(g), and 182(g) of the 1999 Constitution disqualifies public servants from participating in elections except the person has resigned, withdrawn or retired from that employment 30 days to the election, and going by the interpretation of Section 318 of the Constitution, Political Appointees can be said to be public servants. More so, Section 84(12) of the Electoral Act 2022 bears semblance to Section 87(8) of the repealed Electoral Act, 2010, barring political appointees as voting delegates except if they were officers of that party.

Despite these varying views, this new Act is worth applauding as it seeks to strengthen the credibility of Nigeria Elections, introduce innovations and address the defects of the Electoral Act, 2010. In fact, Section 29(1) states that whichever form of primaries adopted, must be concluded with a list of candidates and their affidavits submitted to INEC at least 180 days before the election. The change or substitute of a candidate’s name after the submission of the nomination paper is disallowed by Section 33, except in the event of death or withdrawal of that nominated candidate.

Section 34 provides that when the death occurs before the election commences, the election shall be postponed within 14 days, and in the case where the death occurred after the polls have begun but before the declaration of a winner, the polls shall be suspended for not more than 21 days, allowing the party to conduct another primary for replacement. However, in the case of the President or gubernatorial or Federal Capital Territory Area Council Election, the running mate shall replace the deceased and appoint a new running mate.

Section 94 allows a campaign to commence early at 150 days to the election and end 24 hours before that day. Section 50 provides for electronic transmission of election results, while Section 47 enables the use of Smart Card Readers and any other technology INEC deems fit to deploy. For election petitions and over-voting, Section 51 accounts that the total number of accredited voters shall become a determining factor, and the presiding officer shall cancel the result of the polling unit where there is over-voting.

INEC, under the provisions of Section 65, can review results declared involuntarily, under duress, or contrary to the requirements of the law, regulations, guidelines and manuals for the election.

Most importantly, Section 54 makes provisions for Persons with Disabilities (PWD), special needs, visually impaired, incapacitated and vulnerable persons to be assisted with suitable means of communication on-site or off-site voting in appropriate cases.

Lastly, section 64 (9) makes it a criminal offence for a returning or collation officer to collate or announce false results with a fine of N500, 000 or imprisonment, or both. Similarly, Section 8 (5) makes it a criminal offence for any individual who misrepresents himself by not disclosing his membership or affiliation to any political party to secure an appointment with the commission, with a fine of N500, 000, imprisonment, or both.

Ayokunmi is a graduate of law from Obafemi Awolowo University