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2023 Elections And Electoral Bill 2022, By Reuben Abati

Hopefully, by the time this commentary is in print, on February 22, 2022, President Muhammadu Buhari should have given his assent to the re-amended Electoral Act Amendment Bill which was transmitted to him on January 31, 2022. If so, the President would have laid to rest all speculations and conspiracy theories as to why he does not want to sign the Bill or the possibility of what happened ahead of the 2019 elections repeating itself. If the President does not sign the Bill into law, however, he would raise concerns about his commitment to leaving a legacy of credible elections behind and would deepen tension and uncertainties within the polity. The President does not need the stress. It is in everyone’s best interest for him to grant his assent. He can subsequently send further amendments to the National Assembly as he did with the Petroleum Industry Act (PIA) and the Appropriation Act 2022. In 2018, President Buhari rejected the proposed amendments to the Electoral Act 2010, four times, citing as justification – all kinds of irregularities, including drafting issues, sequence of elections, and even the phrasing of words in parts of the then proposed Bill.

In the end, no amendments took place and Nigerians went into the 2019 general election with the same old electoral framework that stakeholders wanted the legislature to amend. The final excuse given by the government in 2019 was that there would be no time to effect the amendments before the general elections whereas it was the back-and-forth over the granting of assent that was the problem. After the 2019 elections, the process of amending the Electoral Act began afresh under the 9th National Assembly. In November last year, an amended Electoral Act Bill was forwarded to the President for his assent. Section 58(4) of the 1999 Constitution provides for a window of 30 days within which the President can grant assent or withhold it, and in the event of the latter he can be vetoed by the National Assembly.

The President exhausted the entire 30-day window only to object to the National Assembly’s restriction of political parties to direct primary as the mode of selecting candidates for elections by political parties. He cited insecurity, the cost of conducting direct primaries and infringement on the rights of Nigerians to participate in governance as reasons. He promised that if this could be reviewed to allow for both direct and indirect primaries, he would grant his assent. The National Assembly threatened to veto the President, but it did no such thing. Instead the National Assembly reviewed the contentious Clause 84 of the Electoral Bill (originally Section 87 of the Electoral Act 2010), and replaced direct primaries, with an option of direct primaries, indirect primaries and consensus candidacy with a strict definition of what constitutes consensus and the other two options. The Committee of the Whole of the National Assembly then decided to insert in Clause 84, a provision that any one holding a political office  – Ministers, Commissioners, Special Advisers and others – must relinquish such a position before he or she can be eligible to participate in the Electoral process either as a candidate or as a delegate. Previously, government appointees and political office holders could serve as delegates, go into elections, lose and then return to their jobs.  In other words, the National Assembly modified and went beyond the President’s request.

The newspapers reported yesterday that the President wants this Clause removed before he can grant his assent. He reportedly met with the leadership of the National Assembly over the weekend. Some APC Governors are also said to be uncomfortable with this, as well as the definition of consensus by the national legislature and they are purportedly putting pressure on the President not to grant his assent. This is the main source of agitation and concern among Nigerians who think that an old, familiar script is about to be played out again. If the President does not grant assent, the Bill goes back to the National Assembly, the lawmakers would huff and puff, then they would re-amend the law again and add new things for effect, transmit the new twice re-amended Bill to the President, he or the Governors would again pick issues with some Clauses, wait till the last minute to register objections and then the process would begin again until time and resources would have been wasted.

This is the mischief that concerned Nigerians do not want. The objection to Clause 84 as phrased is that it automatically infringes upon the fundamental rights of political office holders to participate in the electoral process and it is to that extent illegal.  What has not been pointed out is that the same Clause 84 allows any aggrieved person under that Section to approach the Federal High Courts to seek redress. Whereas Clause 84 may not derive directly from the public hearings conducted ahead of the Electoral Act Amendment process, it stands to reason that the express objective is to create a level playing field for everyone who takes part in the party nomination or candidate selection process. Hitherto, political office holders use government resources and access to state privileges to dominate party primaries within the ruling party. They are also ready tools in the hands of their principals, especially the Governors. They are expected to do the masters’ bidding since in any case they need the opportunity to return to where they came from if they fail in their bid. I see no problem with Clause 84, as it provides a recourse to the courts, and ensures a level playing field for all parties involved.

The other issue is the fear that the Independent National Electoral Commission (INEC) would be left with no option than to change the dates for the 2023 elections if the President does not sign the Electoral Bill as proposed by February 22, 2022. For now, INEC is yet to issue guidelines for the conduct of the 2023 general elections on the grounds that it is waiting for a new Electoral Act. According to Section 28(1) of the proposed Electoral Act 2022, INEC is required to issue a notice of election not later than 360 days before the appointed date for an election. INEC has since scheduled the 2023 Presidential and National Assembly Elections for February 18, 2023. To meet up with that provision and date, the deadline is February 22, 2022. So, whereas the President still has up till March 2, by virtue of Section 58(4) of the 1999 Constitution to sign the Electoral Amendment Bill, if he fails to do so, by today, February 22, INEC would be forced to reschedule the 2023 elections, or at best, use the extant law, which is the Electoral Act 2010.  Civil Society Organizations (CSOs) object to such a possibility. It is not only the 2023 general elections that would be affected. Off-cycle elections in Ekiti and Osun states too. The investment in coming up with an Electoral Act Amendment Bill would have been wasted and all the more positive sides of the Bill would have been discarded needlessly.

Hence, about 26 civil society organizations have threatened to embark on a protest today. They insist that President Buhari must sign the Electoral Act Amendment Bill 2022 as a “matter of urgent national importance.” I can’t immediately think of any other piece of legislation that has generated this level of intentionality in recent memory. Civil Society Partners on Electoral Reform, the umbrella group of the CSOs argue that Clause 84 is not a problem, it can be amended at any time but there are more important provisions in the Bill that must not be thrown away. Enough is Enough (EiE) one of the CSOs, identified these critical provisions in an advertorial titled “Top Provisions in the Electoral Bill, 2022” at page 53 of ThisDay newspaper on Sunday, February 20, 2022.  EiE argues that “Granting Presidential assent to the Electoral Bill 2022 on or before February 22, 2022 is in the best interest of our electoral democracy. Any amendments can be sent to the National Assembly later.”

According to Enough is Enough (EiE), we should not throw away the baby with the bath water, for the following reason that we need to be reminded of: 1. Clause 3(3) – early release of election funds to INEC. Indeed if all funds required for a general election are released a year ahead, INEC would be more financially independent. 2. Clause 50: Electronic transmission of results. This again is in order. Nigerians have always asked for electronic transmission of results to prevent fraud and manipulation. 3. Clause 65: Power to Review Election Results Declared Under Duress. This particular clause truly empowers the INEC. There are persons who became Governors in this country simply because there was no clause such as this in the extant Electoral Act, thus subjecting the electorate to the excruciating impact of a stolen mandate. 4. Clause 8(5): Political Neutrality of INEC Personnel. Here, it is proposed that any INEC official who is affiliated to a political party if caught, is liable on conviction to a fine of N5m or imprisonment for two years or both. This is a very essential provision. Too many electoral officials, including INEC, security personnel and ad hoc staff are embedded partisan gladiators. They help to thumb-print ballot papers. For a fee, they switch results. This particular provision puts them on notice that there are consequences for bad conduct. For far too long they have been getting away with sheer impunity. 5. Clause 47:  Legalizing Electronic Accreditation of Voters. Nigerians have been clamouring for this: how technology can be used to upgrade the Nigerian electoral system. INEC may have introduced some technology in form of Smart Card Readers and Bimodal Voter Accreditation System (BVAS) in previous elections but because these are not provided for in the extant Electoral Act, they have been declared inadmissible by the courts in a number of cases.   

Otherwise, Alex Otti of the All Progressives Grand Alliance (APGA) would have been Governor of Abia State in 2015. He won at the Court of Appeal when he challenged the 2015 Abia State Gubernatorial election victory awarded to Dr. Okezie Ikpeazu of the Peoples Democratic Party (PDP). Ikpeazu was removed. But Alex Otti later lost at the Supreme Court in part, because there was no provision for electronic accreditation or the use of smart card readers in the enabling law. The ruling of the Court of Appeal was accordingly set aside on technical grounds. Clause 47 in the proposed Bill would make electronic accreditation admissible as evidence, and help check fraud and manipulation.  6. Clause 54 (2) – Inclusion of Persons with Disability. If nothing else moves President Buhari to sign the Electoral Bill 2022, into law, this should. This is about the rights of persons living with Disability and it is a matter of public record that it was President Buhari that signed the Prohibition of Discrimination Against Persons Living With Disabilities into Law in 2019. He should be seen to be more interested in their inclusion, not the rights of political office holders pursuing selfish interests and their own stomachs. 7. Clause 51: Redefined Over-voting – Great provision. Only the total number of accredited voters at a polling unit will determine the validity of the voters. Hitherto, nobody paid enough attention to this. Nigeria is a country where ghosts show up on election day, including ghosts from other countries as far away as Brazil and they vote and their votes are made to count. 8. Clause 29 (1): early conduct of party primaries and submission of list of candidates. The thing speaks for itself here and it is better to quote the EiE statement: “Every political party shall, not later than 180 days (-6 months) prior to election day, submit the list of its candidates, who must have emerged from valid primaries conducted by the political party, to INEC”.

Nigeria must be one of those strange countries where the electorate doesn’t even have the opportunity to know the candidates in an election. Some political parties boast that if they put up a goat as candidate, Nigerians would vote for that goat without knowing, because the extant law weighs more heavily on the mandate of political parties. It is important that Nigerians begin to know the candidates well in advance. 9: Clause 94 – Early Commencement of Campaigns. In this section, political parties now have more time for campaigns, from 90 days to 150 days before polling day and 24 hours before election day. This is likely to increase the cost of campaigns but on a positive note, it provides the electorate a better opportunity to know the aspirant or candidate. Finally, 10: Clause 34 – Substitution of Candidate in the event of Death in an election. This is to correct the debacle in Kogi State about succession under such circumstances, following the death of Alhaji Abubakar Audu of the APC, in 2015.

It may be argued that all things taken together, the amendment of the Electoral Act 2010 is the most comprehensive and pragmatic effort that the National Assembly of Nigeria has embarked upon since it was resolved that having a credible electoral framework is crucial for the integrity of elections and the leadership recruitment process. The issues identified by EiE are practical responses to the realities of the Nigerian electoral experience, as distilled by stakeholders, processed by the legislature, and codified into legislation to raise the quality of Nigeria’s democracy. Whatever anyone may have said to President Buhari about Clause 84, relevant as it is to the interest of a self-seeking, alimental minority, the feelings of the larger majority, and the future of Nigeria’s democracy, should be more important to him. President Buhari should be more interested in keeping his promise that he intends to leave Nigeria’s electoral framework better than he met it. He has nothing to lose for doing so. He would be remembered for moving the needle forward in the direction of public good. The dilly-dallying notwithstanding, INEC also cannot give the excuse that it is waiting on the President. Irrespective of the extant law, arrangements should be made for the next elections. When the Electoral Act Amendment Bill 2022 is eventually passed, necessary adjustments can be made. INEC, by conduct or inaction, passive or otherwise, must not give credence to the speculation that it may be part of a hidden agenda to compromise the democratic process. The President must be encouraged to leave a legacy of just and credible elections that he himself can be proud of.  Mr. President, sign the Bill. History should not repeat itself.                       

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