What manner of Electoral Reform? Nigerians wonder as NASS begins fresh review

There was a sigh of relief in February, 2022 when former President Muhammadu Buhari signed the Electoral Act, 2022 into law

Prior to the signing of the 2022 Act, records had it that between 2008 and 2016, no fewer than three electoral panels were set up by the Federal Government for the purpose of reforming the nation’s electoral system.

Suleiman Lamorde, an Abuja-based legal practitioner, believes that the failures that trailed the 2023 general election, has revalidated the fact that no matter how good a law is, if those saddled with the job of implementing it fail, the law itself cannot produce result on its own.

“No matter how good a law is, the exigencies of development and need for continued improvements in all human endeavours will necessitate regular review,” he said.

He noted that although the Electoral Act, 2022 contained several provisions and improvement on the 2010 Act, the shortcomings recorded in the 2023 general election made it mandatory for Nigeria to revisit the Act.

This also reinforced the position of the international election Observers on the 2023 general election, which believe that the Independent National Electoral Commission (INEC) failed to take advantage of the law to deliver a transparent, free, fair and credible election in the 2023 general election.

For example, the European EU Observation Mission had in their report, said: “Public confidence and trust in INEC were severely damaged during the presidential poll and was not restored in state level elections, leading civil society to call for an independent audit of the entire process.”

The EU then listed six priority areas for Nigeria to address, for the country to ensure credible electoral process

They include the removal of ambiguities in the law, establishment of a publicly accountable selection process for INEC members and ensure real-time publication of and access to election results.

It also stated that although the “fundamental freedoms of assembly and movement were broadly respected, the full enjoyment of the latter was impeded by insecurity in some parts of the country.”

Other issues which they believe must be addressed include the “abuse of
incumbency by various political office holders who distorted the playing field and wide-spread vote buying that detracted from an appropriate conduct of the elections. Incidents of organised violence shortly before and on election days in several states created an environment deterring voters’
participation.

“The overall outcome of the polls attests to the continued underrepresentation of marginalised groups in political life.”

The observers believed that the gaps and ambiguities inherent in the Electoral Act, 2022, that enabled some people to circumvent some aspects of the legal frameworks needed to be addressed.

Fundamental freedoms of assembly,
association, and expression, while constitutionally guaranteed, were not always well protected.

“The widely welcomed Electoral Act 2022 (the 2022 Act) introduced measures aimed at
building stakeholder trust, but it was observed that the Act’s first test in a general election revealed crucial
gaps in terms of INEC’s accountability and transparency, proved to be insufficiently elaborated, and lacked clear provisions for a timely and efficient implementation,” the observers also noted.

According to them, “The weak points include a lack of INEC independent structures and capacities to enforce sanctions for electoral offences and breaches of campaign finance rules. Furthermore, the presidential selection of INEC leadership at federal and state level leaves the electoral institution vulnerable to the perception of partiality.

“The introduction of the Bimodal Voter Accreditation System (BVAS) and the INEC Results Viewing Portal (IReV) was widely seen as an important step to ensure the integrity and credibility of the elections.

“There were multiple missteps and lack of transparency that trailed the
polls, compounded by severely delayed display of presidential result forms, a situation that dashed the public trust in the election technologies used.

“INEC also failed to give a timely and comprehensive explanation
for the failures on 25 February, hence the improved online display of results forms from the 18 March state elections just fuelled further speculations about what exactly caused the delays after the presidential poll.”

Auwal Ibrahim ( Rafsanjani), the Executive Director, Civil Society Legislative Advocacy Centre, also believes that there are compelling reasons that make the review of the election law necessary.

The Civil rights advocate berated the Nigerian political class for working to sabotage the 2022 Electoral Act.

“What we have seen amongst the political class is a brazen resolve to continue their stronghold on the nation’s resources without minding the suffering in the country. For instance, an association of armed robbers cannot elect a Police Officer to be their President.

“I will strongly advocate in the wake of what we have witnessed in the recent elections, that under the new amendment, all election petitions should be concluded before the swearing in.

“Nothing stops us from conducting our elections about one year or even six months before the end of the administration’s tenure. This will allow us ample time to deal with all the post-election issues.

“We also must enforce that the President and Governors as well as all political appointees resign from office before the conduct of the elections. By this approach, it will be difficult for anyone to use government facilities to prosecute their elections, rig or manipulate elections in their favour or even threaten and harass members of the judiciary.

Ibrahim, while blaming the incumbency factor, use of security to intimidate opponents for some of the lapses witnessed during the election, also noted that these are the major reasons for inability to successfully prosecute electoral offenders.

“To get the electoral system right, we must strengthen the independence of the judiciary, stop public office holders from use of state funds, facilities to prosecute reelections that confer undue advantage on incumbents.

Femi Falana, a constitutional lawyer, recalled that the Muhammed Uwais panel made fundamental recommendations which were ignored by successive administrations.

“In view of the fact that Nigeria has repeatedly failed to deliver credible elections, there has arisen the urgent need to overhaul the electoral process to make it more democratic, accountable and acceptable,” he said.

Experts want Uwais Report implemented

Falana reckons that the objective will not be achieved without the adoption of full technology in the electoral system, appointment of independent electoral authorities and substantial reduction of involvement of judges in the determination of outcome of elections.

“In order to ensure the independence and neutrality of INEC, the Uwais Panel had recommended that members of the commission should not be appointed by the President,” he said.

Read also: Atiku Abubakar slams Supreme Court ruling, seeks urgent electoral reforms
He recommended the adoption of the Uwais panel’s suggestion that the National Judicial Council, NJC, be “tasked with the duty to: advertise the positions, spell out requisite qualifications; receive applications/nominations from the general public; shortlist three persons for each position and send the nominations to the National Council of State to select one for each position and forward same to the Senate for confirmation.

The Uwais panel, according to Falana, had also recommended the procedure for removal of Chairman and members of the INEC, only by the “Senate on the recommendations of the National Judicial Council, (NJC) by two–third majority of the Senate which shall include at least 10 members of the minority parties.”

The panel also suggested that the same procedure be adopted in the appointment and removal of resident electoral commissioners and members of state independent electoral commissions.

It also recommended that INEC should be unbundled to allow it fully concentrate on the conduct of general elections.

For the purposes of ensuring effective discharge of its responsibilities, “The Uwais panel recommended the unbundling of the INEC into Political Parties Registration and Regulation Commission; Electoral Offenses Commission, Constituency Delineation Commission, and Centre for Democratic Studies.”

The panel’s suggestion, however, remains unimplemented, but INEC went ahead to set up Centre for Democratic Studies, and appointed Attahiru Jega as it’s Chairman.

Major reforms in the 2022 Electoral Act

One of the major innovations in the 2022 Act was the provision in Sections 47 and 50(2) of the Electoral Act, 2022 which gives legal backing for use of smart card readers, electronic accreditation of voters and any other voter accreditation technology that INEC may wish to deploy
This provision also gave legal backing to the electronic transmission of result by INEC , with powers to determine the manner(s) of transmission of result.
Similarly, Section 62(2) gives the commission the power to maintain a centralised electronic register of elections for e-collation.

According to Section 65 of the Electoral Act, 2022, INEC can now, within 7 days, review results declared by a returning officer under duress or where such a declaration was made contrary to the provision of the law, regulations and guidelines, and manual for the election. This is without prejudice to the jurisdiction of a court of competent jurisdiction or election tribunal to review the decision of the returning officer.

The Act in Section 94, provides that campaign shall commence 150 days before polling day and end 24 hours prior to that day. Under the repealed law, political parties have just 90 days before polling day.

In a bid to also ensure that the conduct of elections in Nigeria did not suffer from funding challenges, section 3(3) of the Electoral Act 2022 provides that funds for general elections must be released at least one year before that election. Under the repealed Electoral Act, No 26, 2010, however , funds disbursed for the elections were made only in accordance with rules set out by the commission

Section 29(1) of the Electoral Act, 2022, also mandated all the political parties to hold its primary and submit the list of candidates not later than 180 days before the date appointed for a general election.

This provision was seen as an improvement on the repealed law, which stated that submission of candidates lists shall not be more than 60 days before the date appointed for a general election.

Section 29(5) of the Electoral Act 2022 also provides that only aspirants who participated in a primary election of political parties can approach the federal high court for review where there are grounds to believe that any information given by his political party’s candidate is false. Under the repealed act, any member of the public can challenge a candidate with a forged certificate. That has now been restricted to only aspirants who participated in primaries wherein the candidate with forged certificate emerged. Members of the public cannot challenge a candidate that submits false information to INEC.

Section 84(12) of the Electoral Act, 2022, provides that anyone holding a political office must vacate the position before he or she can be eligible to participate in a primary election, convention or congress of political parties either as a candidate or as a delegate.

This provision only covers political appointees and does not extend to elected political office holders or public officers employed to the public service. The Act however did not specify when they should relinquish the position. What is important is that they must have vacated the political appointment before the convention or congress of their party.

Section 54 of the Electoral Act, 2022 also provides that voters with visual impairment and other forms of disability or incapacitation should be assisted at the polling unit by a person chosen by him or her and the commission shall take reasonable steps to ensure these persons are assisted and provided by suitable means of communication such as braille, large embossed print, electronic devices, sign language interpretation, or off-site voting in appropriate cases.

Section 127 of the Electoral Act, 2022 provides for a fine of N 100,000.00 (One Hundred Thousand Naira, only) or 12 months imprisonment or both for anyone who corruptly influences any person or any other person to vote or refrain from voting at such election, or on account of such person or any other person having voted or refrained from voting at such election; or being a voter corruptly accepts or takes money or any other inducement.

In the area of over voting, Section 51 Electoral Act, 2022 provides that the total number of accredited voters will become a factor in determining over-voting at election tribunals. Thus, where the number of votes cast at an election in any polling unit exceeds the number of accredited voters in that polling unit, the presiding officer shall cancel the result of the election in that polling unit. This is an improvement on the repealed 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.

Femi Falana, the Lagos-based lawyer and a Senior Advocate of Nigeria (SAN), in his assessment of the 2022 Electoral Act, in relation to the provisions of the Act, believed that the country cannot conduct credible elections without first amending the relevant provisions of the Constitution and Electoral Act to provide for the appointment of INEC members by advertisement.

He also averred that no success can be achieved without the deployment of technology for accreditation of voters and transmission of election results from polling units to the central server of INEC.

“Once the electoral process is fully technologised the proof of election petitions will be based on the BVAS reports and uploaded results. The onus of proof of conduct of credible elections should shift to INEC and winners of elections. The question of dumping election materials will not arise as they would be produced and certified by INEC”

“Democracy cannot be consolidated where the masses are asked to tighten their belts while elected public officers are paying themselves jumbo salaries and allowances. Since democracy is under threat due to mass poverty the political system must address the welfare and security of the people. As a matter of urgency, progressive forces must compel the federal government to reverse the removal of fuel subsidy, investigate the fuel subsidy scam; speed up the rehabilitation of the nation’s refineries and build new ones; stop the floating of the Naira and stop the devaluation of the Naira through dollarisation, cancel the planned increase in electricity tariffs and reintroduction of tuition fees in tertiary institutions,” he said.

Some Nigerians who spoke to BusinessDaySunday on condition of anonymity said that the problem was not with the Electoral Act but the unwillingness on the part of those that should implement the Act to walk the talk.

Sylvester Odion-Akhaine, a professor of Political Science and lecturer, said: “There is nothing wrong with the current institutional framework under which they are conducting the elections; it is the personnel and people heading those institutions that are subverting them.

There is nothing wrong with those institutions and in terms of reforms; there is nothing new that we are going to say that the Muhammed Uwais panel on electoral reform did not propose.

In terms of making sure that the hand of the executive is removed from the conduct of polls, the panel proposed that, but it was not implemented in full. The man who set up that committee did not stay alive to implement the recommendations; those are the issue.

“Of course, I agree with you that people don’t act in a vacuum; you are talking about those who want to continue to command influence. Those are the people who subvert that institutional framework that are meant to regulate governance in the country.”

A lecturer with a state university in South-South said that one million Electoral Acts cannot give Nigeria good election without human reform.

“With what I saw during the election, our urgent need is not electoral reform but human reform. Everything that was supposed to give us the best election in the history of Nigeria was provided, yet, human elements ensured they did not work. Did we learn a lesson from the general election? The answer is no. No, because all the electoral bills that were the hallmark of the 2023 general election repeated in the off-cycle governorship election in Imo, Kogi and Bayelsa.
“It is easy for those who benefitted or masterminded the electoral heist in February and March this year to pretend they are for Electoral reform. We are just living a false life in Nigeria. So, for me, any review would amount of sheer waste of time and resources,” the lecturer said.

According to the don, “The question you should ask is, who are those pretending to reform the electoral process? Majority of them are those who subverted the process and should be in jail by now if Nigeria was a nation where the law takes its pride of place. These are the same people pointing the way forward. It does not work that way. I am afraid if they have the moral fibre to clear the Augean stable.
“What I see is a vicious cycle. People saying ‘let’s do something to be seen to be busy.’ But they know too well that the document would be discarded in 2027 when they want to seek re-election. Who is fooling who?

In 2022, before the general election, the 9th National Assembly carried out what many people thought was going to change the electioneering process in Nigeria, for good. The Electoral Act was amended with the inclusion of some technological flavour inserted therein to make the elections more credible than before. The INEC profusely promised that the Bimodal Voter Accreditation System (BVAS) with its dual fingerprint and facial biometric accreditation process would be deployed to ensure that only genuine voters were accredited to vote during election. INEC said that the deployment would curtail the incidence of multiple voting and other sharp practices associated with voter accreditation during elections.