Electoral Act 2022: The 12-Year-Old Trajectory of a Law

By Yusuph Olaniyonu

The decision of President Muhammadu Buhari to eventually give his assent to the new Electoral Act (Amendment) Bill 2022 ends the 12-year journey of the old law under which three general elections and many other isolated polls have been conducted.

Since after the 2011 elections, there had been agitations for the electoral law to be improved upon and amended to enable it to accommodate the use of technology and improve the electoral process. However, the conduct of the 2015 general elections in which the then Chairman of the Independent National Electoral Commission (INEC), Prof. Attahiru Jega, and his team took a bold decision by issuing regulations that introduced the card reader as a way of ensuring only persons who registered and were issued authentic voters’ card voted, made the change of the law inevitable.

Apart from the fact that the innovation that was adopted in the conduct of the 2015 polls reduced manipulation, it led to the unprecedented emergence of the opposition as the winner. However, at the courts, the use of card readers and other innovations introduced by the INEC was roundly rejected as they have no legal backing. In fact, in the case of Nyesom Wike vs Dakuku Peterside, the Supreme Court in its lead judgment read by Hon. Justice Mahmud Mohammed (JSC, as he then was) and delivered on February 12, 2016, ruled that “As held by this court, the INEC Guidelines and Manual cannot be elevated above the provisions of the Electoral Act to eliminate manual accreditation of voters. This will remain so until INEC takes steps to have the necessary amendments made to bring the usage of the card reader within the ambit of the substantial Electoral Act”.

It was therefore not surprising that the Eighth Senate under the leadership of Dr. Abubakar Bukola Saraki in its Legislative Agenda drafted and approved at its advent in 2015 included the reform of the electoral process as part of the issues it wanted to tackle. That Senate also proposed that it would amend the Electoral Act long before the next general elections so as not to get it mired in the partisan controversies and schemings that characterize the election period.

Thus, on March 30, 2017, the 8th Senate passed the New Electoral Act and sent it to the House of Representatives for concurrence. Also, five days after the passage of the law, April 4th, 2017, the Senate President, Saraki, paid a visit to the Presidential Villa to brief President Buhari on the proposed law and its provisions. He told members of the Press Corps in the Villa about his mission that day. Two days after Saraki’s visit to Buhari, he received in his office the INEC chairman, Prof. Mahmud Yakubu who came to express appreciation to the Senate for the changes made to the existing law.

Meanwhile, the passed bill, among others, provided a timeline for the submission of the names of candidates by political parties, limited campaign expenses, and addressed problems related to the omission of a candidate’s name or party logo on the ballot paper. It also approved electronic transmission of results, legalized the use of card readers, and set a new standard for the conduct of direct and indirect primaries by parties.

However, the Bill got delayed in the House of Representatives and was only returned to the Senate in February 2018 with a controversial provision on the order of polls in which the Presidential election would come last. When on February 14th, 2018, the Senate considered the bill as returned to it by the House, the chamber erupted in commotion. A group of senators believed the order of elections was targeted at Buhari and vowed to bring the institution down rather than allow the new Bill passed.

The Bill was still passed and sent to the President for assent but was rejected on three grounds. The President said the provision on the order of elections was a usurpation of INEC constitutional responsibility, that amendment to section 135 of the principal Act to two crucial grounds upon which an election may be challenged by candidates should be deleted because it unduly limits the rights of candidates and that the provision on Sections 152 (3) and 25 of the principal Act may raise the issue of competence of INEC to conduct local government polls.

On June 7th, 2018, the Senate dropped all the sections Buhari complained about and after achieving concurrence with the House of Representatives, the new Bill was forwarded to the President on July 2, 2018. The President demurred again. His Special Adviser on National Assembly Matters, Sen. Ita Enang attributed the refusal to drafting errors that remained unaddressed following the prior revision to the Bill.

On October 23, 2018, the third version was passed in which 38 clauses of the existing laws had been amended and all the issues raised by Buhari were addressed and it was forwarded to the President on November 17, 2018. The President denied the Bill his assent. His reason this time was as follows: “ Passing a Bill this far into the election process for the 2019 polls, which commenced under the 2010 Electoral Act, could create some uncertainty about the applicable legislation to govern the process” and that “any real or apparent changes to the rules this close to the election may provide an opportunity for discussion and confusion in respect of which law is governing the electoral process”. He added that the Bill should be considered for future elections after 2019.

That ended the attempts by the Eighth National Assembly to amend the Electoral Act. The ball shifted to the court of the Ninth Assembly. The National Assembly last November passed a new Bill to the President. The Bill was on all fours with the one passed by the 8th National Assembly, except the addition of a provision that direct primaries should be the only means of selecting candidates for elections by political parties. The President on December 21, 2021, again rejected the Bill based on the provision on direct primaries.

The new Bill passed on to the President on January 31st, 2022 corrected the issue of direct primaries and rather added the indirect and consensus means of selecting candidates as alternatives. However, the House of Representatives again introduced another controversial provision in which it proposes that all political appointees seeking to contest elective offices should resign long before declaring their interest. The provision led to some close aides of the President and governors moving against the Bill and urging the President not to sign it into law.

While all these presidential rejections were going on, civil society groups, youth organisations, and human rights groups continued to mount agitations, open rallies, and protests to pressurise the President into signing the Electoral Act (amendment) Bill 2020 into law.

The combination of the campaigns by these groups, the move by the political parties, and the desire to leave a good legacy must have persuaded the President into signing the law. Now, we have a new Electoral Act and one can only hope this will herald a regime of free, fair, peaceful, and credible elections and electoral process where the votes of the People will count, the majority will have their way and the minority will have their say.

Olaniyonu writes from Abuja.

ELECTORAL ACT 2022: The 12-Year-Old Trajectory of a Law

By Yusuph Olaniyonu

The decision of President Muhammadu Buhari to eventually give his assent to the new Electoral Act (Amendment) Bill 2022 ends the 12-year journey of the old law under which three general elections and many other isolated polls have been conducted.

Since after the 2011 elections, there had been agitations for the electoral law to be improved upon and amended to enable it to accommodate the use of technology and improve the electoral process. However, the conduct of the 2015 general elections in which the then Chairman of the Independent National Electoral Commission (INEC), Prof. Attahiru Jega, and his team took a bold decision by issuing regulations that introduced the card reader as a way of ensuring only persons who registered and were issued authentic voters’ card voted, made the change of the law inevitable.

Apart from the fact that the innovation that was adopted in the conduct of the 2015 polls reduced manipulation, it led to the unprecedented emergence of the opposition as the winner. However, at the courts, the use of card readers and other innovations introduced by the INEC was roundly rejected as they have no legal backing. In fact, in the case of Nyesom Wike vs Dakuku Peterside, the Supreme Court in its lead judgment read by Hon. Justice Mahmud Mohammed (JSC, as he then was) and delivered on February 12, 2016, ruled that “As held by this court, the INEC Guidelines and Manual cannot be elevated above the provisions of the Electoral Act to eliminate manual accreditation of voters. This will remain so until INEC takes steps to have the necessary amendments made to bring the usage of the card reader within the ambit of the substantial Electoral Act”.

It was therefore not surprising that the Eighth Senate under the leadership of Dr. Abubakar Bukola Saraki in its Legislative Agenda drafted and approved at its advent in 2015 included the reform of the electoral process as part of the issues it wanted to tackle. That Senate also proposed that it would amend the Electoral Act long before the next general elections so as not to get it mired in the partisan controversies and schemings that characterize the election period.

Thus, on March 30, 2017, the 8th Senate passed the New Electoral Act and sent it to the House of Representatives for concurrence. Also, five days after the passage of the law, April 4th, 2017, the Senate President, Saraki, paid a visit to the Presidential Villa to brief President Buhari on the proposed law and its provisions. He told members of the Press Corps in the Villa about his mission that day. Two days after Saraki’s visit to Buhari, he received in his office the INEC chairman, Prof. Mahmud Yakubu who came to express appreciation to the Senate for the changes made to the existing law.

Meanwhile, the passed bill, among others, provided a timeline for the submission of the names of candidates by political parties, limited campaign expenses, and addressed problems related to the omission of a candidate’s name or party logo on the ballot paper. It also approved electronic transmission of results, legalized the use of card readers, and set a new standard for the conduct of direct and indirect primaries by parties.

However, the Bill got delayed in the House of Representatives and was only returned to the Senate in February 2018 with a controversial provision on the order of polls in which the Presidential election would come last. When on February 14th, 2018, the Senate considered the bill as returned to it by the House, the chamber erupted in commotion. A group of senators believed the order of elections was targeted at Buhari and vowed to bring the institution down rather than allow the new Bill passed.

The Bill was still passed and sent to the President for assent but was rejected on three grounds. The President said the provision on the order of elections was a usurpation of INEC constitutional responsibility, that amendment to section 135 of the principal Act to two crucial grounds upon which an election may be challenged by candidates should be deleted because it unduly limits the rights of candidates and that the provision on Sections 152 (3) and 25 of the principal Act may raise the issue of competence of INEC to conduct local government polls.

On June 7th, 2018, the Senate dropped all the sections Buhari complained about and after achieving concurrence with the House of Representatives, the new Bill was forwarded to the President on July 2, 2018. The President demurred again. His Special Adviser on National Assembly Matters, Sen. Ita Enang attributed the refusal to drafting errors that remained unaddressed following the prior revision to the Bill.

On October 23, 2018, the third version was passed in which 38 clauses of the existing laws had been amended and all the issues raised by Buhari were addressed and it was forwarded to the President on November 17, 2018. The President denied the Bill his assent. His reason this time was as follows: “ Passing a Bill this far into the election process for the 2019 polls, which commenced under the 2010 Electoral Act, could create some uncertainty about the applicable legislation to govern the process” and that “any real or apparent changes to the rules this close to the election may provide an opportunity for discussion and confusion in respect of which law is governing the electoral process”. He added that the Bill should be considered for future elections after 2019.

That ended the attempts by the Eighth National Assembly to amend the Electoral Act. The ball shifted to the court of the Ninth Assembly. The National Assembly last November passed a new Bill to the President. The Bill was on all fours with the one passed by the 8th National Assembly, except the addition of a provision that direct primaries should be the only means of selecting candidates for elections by political parties. The President on December 21, 2021, again rejected the Bill based on the provision on direct primaries.

The new Bill passed on to the President on January 31st, 2022 corrected the issue of direct primaries and rather added the indirect and consensus means of selecting candidates as alternatives. However, the House of Representatives again introduced another controversial provision in which it proposes that all political appointees seeking to contest elective offices should resign long before declaring their interest. The provision led to some close aides of the President and governors moving against the Bill and urging the President not to sign it into law.

While all these presidential rejections were going on, civil society groups, youth organisations, and human rights groups continued to mount agitations, open rallies, and protests to pressurise the President into signing the Electoral Act (amendment) Bill 2020 into law.

The combination of the campaigns by these groups, the move by the political parties, and the desire to leave a good legacy must have persuaded the President into signing the law. Now, we have a new Electoral Act and one can only hope this will herald a regime of free, fair, peaceful, and credible elections and electoral process where the votes of the People will count, the majority will have their way and the minority will have their say.

Olaniyonu writes from Abuja.