BusinessDay

Can Nigeria’s Electoral Law cure the mischief of the past?

With the flag off of election campaigns on September 28, political parties in the country would have ample time to rally their faithful and garner new converts before the polling day.

Presidential and National Assembly election campaigns are expected to end on Friday, 24th of February, 2023, ahead of the election on Saturday 25th February, 2023. Governorship and House of Assembly campaigns will end on Friday 10th March, 2023, as elections are held on 11th March, 2023.

A credible election remains the basis for conferring legitimacy on any government in a democratic dispensation.

Nigeria has had a rich history of severely blemished elections ever since the first post-independence general elections in 1965. Since then, practically all elections in the country have been characterised by one form of blot or the other.

The 2019 elections that returned Mr. Muhammadu Buhari to power for a second term was described by the Situation Room, an umbrella organisation of Nigerian civil society groups, as one that marked “a step back from the 2015 general election and actions should be taken to identify what has gone wrong and what can be corrected”.

It was perhaps, with an eye on the dodgy process that returned him to office and the need to remediate the untrustworthy development that compelled the President to sign the amended 2022 Electoral Act into law.

The new Electoral Act, 2022, which was signed into law on the 25th February, 2022, to repeal the 2010 Electoral Act, has addressed some of the thorny challenges to credible elections in Nigeria. The Act was applauded, for creating innovative provisions, which if well implemented, could strengthen the process for justifying credible, free and fair elections in the country.

The Act was conceived, framed and enacted to correct the ills which had hitherto bedevilled previous elections in Nigeria that were fraught with intimidation, vote buying, rigging, forgery of ballot papers, ballot box snatching and other electoral malpractices, that were to become the moniker of elections in Nigeria.

From the process of selecting candidates to the actual declarations of results, the whole process had suffered from credibility deficiencies, inescapably leading to credibility challenges for victorious candidates.

Innovations and their implications

Early release of funds:

The Electoral Act, 2022, in section 3(3), provides that INEC will receive its funds one year ahead of the conduct of the elections.

The Act also granted financial independence to the Commission with the creation of the “Independent National Electoral Commission Fund” into which all payments from the Federal Government, investments made from the fund and other aids and grants shall be paid to enable the Commission perform its functions.

In addition, the disbursement of funds for the elections shall be made in accordance with rules set out by the commission, controlled by the Federal Ministry of Finance. This provision has addressed funding challenges for INEC, which hitherto, always goes cap in hands to beg for funds to conduct elections.

INEC says it would need N305 billion to successfully conduct the 2023 general elections. It said it received N100 billion in 2021 leaving a balance of N205 billion.

Elections in Nigeria tend to be very expensive in Nigeria at about $10 per voter. A 2017 MIT study showed that the total for election administration in the United States is estimated at about $2 billion per year; an average of $8.10 per voter.

Electronic transmission of results, Smart card reader

On the backdrop of previous experiences which show that a larger percentage of electoral malpractices take place at INEC collation centres, the new Act made provisions for electronic transmission of results.

Section 47 of the New Act has provided for smart card readers, while Section 50(2) states that: “Subject to Section 63 of this Act, voting at an election and transmission of results under this Act shall be in accordance with the procedure determined by the Commission.”

In the event of failure of the smart card reader or any other technological device deployed for accreditation of voters by INEC, the new Act provides that a fresh card reader or technological device should be deployed, otherwise the election in that unit shall be cancelled and another election scheduled within 24 hours if INEC is satisfied that the result of the election in that polling unit will substantially affect the final result of the whole election.

This section therefore guarantees INEC with statutory backing for electronic transmission of election results. INEC has already successfully experimented this process in the last Osun state gubernatorial election and it is hoped that this will aid timely and accurate upload of results.

Excluding political appointees from voting as delegates or becoming aspirants, while still holding offices

Section 84 (12) of the new Act stipulates that no political appointee at any level shall be a voting delegate or be voted for at the Convention or Congress of any political party for the purpose of the nomination of candidates for any election.

Over the years, experience had shown that manipulations of the electoral processes were done by political appointees who were in turn rewarded with positions either as “elected candidates” or with juicy political positions after elections, for the roles they play in manipulating the election process.

With this provision, political appointees are to first relinquish their positions before they can be considered eligible to participate in the electoral process either as a candidate or as a delegate.

Party primaries

Unlike the previous provisions in the Electoral Act which stipulates that political parties shall submit their list of candidates, 60 days before elections, the new Act provides for 180 days, or six months before the date of the election.

This provision is expected to allow the parties to deal with internal crises arising from the conduct of primaries.

Death of electoral candidates

The death of a candidate during an election has generated bickering among political class following the death of former Kogi state gubernatorial candidate, Abubakar Audu on the 22 of November, 2015.

As part of new measures to address the challenge, the new Act provides that where a candidate dies before the commencement of polls, the election shall be postponed and shall commence within 14 days of the candidate’s death.

But where a candidate dies after polls, but before announcement of final winner/announcement of final result; the implication is that the election will be suspended for not more than 21 days.

For legislative Houses, the election shall start afresh and the political party whose candidate died may, if it intends to continue to participate in the election, conduct a fresh primary within 14 days of the death of its candidate and submit the name of a new candidate to the Commission to replace the dead candidate.

The new Act further provides that in the case of gubernatorial, presidential and FCT Area Council elections, the running mate shall continue with the election (as the new candidate) and nominate a new running mate.

Section 36(1) of the old Act had made provision for situations where a candidate dies after delivery of nomination paper and before the commencement of the poll.

INEC’s powers to review results

Despite provisions in Section 65(1) that the “decision of the returning officer shall be final with regards to unmarked papers, rejected ballot papers and declaration of scores of candidates and the return of a candidate”, the new Act, also gives INEC the power to, within seven days, review the declaration and return where INEC determines that the said declaration and return was not made voluntarily or was made contrary to the provisions of the law, regulations and guidelines, and manual for the election.

The old Act held that the Returning Officer is correct and regular until the contrary is proved by the candidate who denies the correctness of the result.

Read also: We’ll sensitise our people on Electoral Act – Lawal

Over voting controversy

Provision in the section 51 (2) of the Electoral Act, 2022, settles the disputes as to whether the number of ‘registered voters’ should take precedence over the “number of accredited voters” in determining over voting at a polling unit,

This section provided that where the total number of votes cast exceeded the number of accredited voters, in that polling unit, the presiding officer shall cancel the result of the election in that polling unit.

Section 51(3) also provides that there shall be no return for the election until another poll has taken place in the affected polling unit.

This is considered an improvement on the repealed 2010 electoral law which provided that the number of registered voters, as opposed to accredited voters, shall be the factor in determining over-voting at election tribunals and only the commission can declare the election at the polling unit as null and void.

Aside INEC’s early commencement of the processes leading to the 2023 general election and release of timetable for the elections, the 2022 Electoral Act in Section 94, has provided a period of six months or 150 days for political parties’ campaigns

Despite the innovations, there are also genuine concerns as to whether the Independent National Electoral Commission (INEC) will judiciously implement the provisions of the Act and whether some of the provisions of the act do not fall short of best practice.

Justin Chuwang, an Abuja based lawyer, believes that having seen the weaknesses of the old electoral law, the 2023 elections would determine how well the newly amended electoral law would impact on the electoral space.

“The law needs to be tested for us to determine its efficacy and effectiveness and where there is need for further review,” he argued.

The idea of law, Castro Ginigeme, a constitutional law with practice experience in the United States contends, “is to make it simple and straightforward enough that somebody in High School can understand it. Unfortunately, Nigeria’s laws are so inelegantly drafted, are so verbose, so meaningless and they create so many rooms for disagreements and troubles and courts. That is not what legal drafting is about.”

He warned that the provision in section 84 (2) that, states the procedure for the nomination of candidates by political parties for the various elective positions to be by direct, indirect primaries or consensus was unnecessary and injurious to the intent of the law as a whole.

“That the electoral act that is supposed to improve things authorises direct primaries, indirect primaries and consensus at the same time is a terrible mistake that makes no sense. If you really want to be transparent, what you really need to do is to say, all political parties, organise official documented direct primaries. It is the most transparent, so that anyone running for office whether for Councillor, or presidential, who participates in an open direct primary and loses, goes home. It would simply not involve any court case.

“Immediately you bring in ‘indirect’ as the name sounds or bring in ‘consensus,’ you are simply creating clear and obvious avenues for electoral fraud and corruption. Political leaders can go into their sitting rooms and write names of their preferred candidates as consensus and impose them on their parties. We have seen it happen again and again in the country.

“Direct primaries are the most transparent process. Immediately you start saying indirect or consensus, knowing what Nigerian politicians call consensus, no matter the details you provide them in the electoral act, you are creating room for confusion and court action.

“Everything does not have to end in court. The worst thing you can do in law is to create room to go to court. In fact, the better law is the one that does not need you to go to court. And as the Imo governorship and the 2018 Osun governorship elections outcome that ended in court have proved, the judiciary, especially the appellate courts are no more efficient and more trustworthy than well-administered elections.”

Diaspora voting and funding

It is estimated that there are more than 2 million Nigerians in the diaspora who remit an estimated $25 billion in annual remittances, with Nigeria being the fifth largest recipient of diaspora remittances globally.

These economically dominant group Nigerians were excluded from voting by the new law. INEC’s Chairperson Yakubu Mahmood had argued that citizens of Nigeria living outside the country make considerable contributions to the economy through Diaspora remittances and should be able to vote, as Diaspora voting was consistent with global best practices.

Nigeria’s national Assembly thought differently. It is a major flaw in the law

Unable to vote, Nigerians in the diaspora are keen to financially support candidates of their choice.

Pat Utomi, a Professor of Political Economy and a leading member of the Labour party earlier this month faulted provisions of the 2022 Electoral Law preventing political parties and their candidates from receiving funds from Nigerians in the diaspora for their campaign activities.

“It will be a great disservice to Nigerians abroad to be denied the opportunity of supporting a political party they believe in by raising campaign funds for the party.

“If there’s a law that opposes (Nigerian) people from contributing to fund campaigns, that law is fundamentally flawed and does not deserve the name ‘law,” he posited

For Castro Ginigeme, “where the electoral law stands on funding in section 85, 87, 90 and other sections, is about foreign funding of political parties. In other words, foreigners funding political parties. Nigerians in the diaspora are not foreigners. A Nigerian in Abuja and a Nigerian in New York are exactly in the same position with the same rights and the same obligations. So if a Nigerian in Abuja can give money to someone running for office and they do, why can’t a Nigerian in New York do the same? Nothing forbids him or her from doing so

“You cannot make a set of laws excluding one set of Nigerians. It is a basic trite in law.”

It is still too early to speak about the reformatory capacity of the 2022 amended electoral act. It is however a law with promise yet with obvious flaws. As Justin Chuwang noted: “No law is permanent, there will be flaws here and there. There is always room for improvement and as we say, experience is the best teacher. Let us hope that the new law can cure the mischief of the past and ensure a better future for our electoral processes.”

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