ELECTORAL LAW 2022: The biggest bipartisan victory for Buhari
A few of the full-scale ambitions of Nigeria’s new Electoral Law may not have been achieved, but most stakeholders in the electoral system have been sufficiently appeased with the recent law governing the electoral process signed by President Muhammadu Buhari, writes Nseobong Okon-Ekong
The hours leading to the signing of the re-worked Electoral Act Amendment Bill into Law were quite pensive and worrisome. Nigeria’s coalition of civil societies threatened to stage a protest march to the National Assembly to impress on President Muhammadu Buhari that he needed to give the nation a new set of laws to moderate the country’s electoral process. Addressing their concern, Presidential spokesperson, Mr. Femi Adesina, said the president would do the needful in a matter of hours. Because he did not mention a particular date, speculation was rife. Many took his statement with a pinch of the salt, going by the fact that the president had refused to append his signature to the Electoral Bill on different previous occasions, pleading one excuse or the other. It was the latest twist in a long list of controversies over aspects of the bill the president was not comfortable with including electronic transmission of election results and the type of primaries to be conducted by political parties.
The new bill was sent by the National Assembly for presidential approval on January 31, 2022. It reviewed the issue of direct primaries, by adding indirect and consensus means of selecting candidates as alternatives. Another cog was set in the wheel when the House of Representatives introduced a controversial provision that demanded all political appointees seeking to contest elective offices to resign long before making their intention public. Of course, those affected like ministers and governors frowned at the provision and lobbied the President to decline his signature.
“The Bill would also improve and engender clarity, effectiveness and transparency of the election process, as well as reduce to the barest minimum incidences of acrimony arising from dissatisfied candidates and political parties,” Buhari said, rejoicing over the bill as he signed it on Friday, February 25-2022 at the Aso Rock Villa. “It is gratifying to note that the current Bill comes with a great deal of improvement from the previous Electoral Bill 2021. There are salient and praiseworthy provisions that could positively revolutionize elections in Nigeria through the introduction of new technological innovations. These innovations would guarantee the constitutional rights of citizens to vote and to do so effectively.”
The Bill does not address everything
The bill Buhari signed does not address everything he would have loved to see, but he, nonetheless was conscious of the compromises made by all the stakeholders. He knew he could not afford to turn down the bill for the umpteenth time. It was a necessary move to douse mounting tension, restore the confidence of the opposition political parties, the electoral, civil society, particularly the Peoples Democratic Party (PDP) and gain a measure of integrity for the president and his party, the All Progressives Congress (APC), which had been variously accused of planning underhand schemes to claim victory in the 2023 national elections. Perhaps, if the president was not alive to the mood of the nation, he could have refused to sign the bill as in previous times. However, he simply noted “one provision as contained in the proposed Bill, which provision constitutes fundamental defect, as it is in conflict with extant constitutional provisions.,” while requesting federal legislators to reconsider it. The President said, “with particular regards to the benefits of the Bill, industry, time, resources and energy committed in its passage, I hereby assent to the Bill and request the Nationally Assembly to consider immediate amendments that will bring the Bill in tune with constitutionality by way of deleting section 84(12) accordingly.”
So, what does section 84(12) say? The section provides that, “No political appointee at any level shall be 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.” Thus, Buhari argues that the section, “constitutes a disenfranchisement of serving political office holders from voting or being voted for at conventions or congresses of any political party, for the purpose of the nomination of candidates for any election in cases where it holds earlier than 30 days to the national election.”
According to the president, “This provision has introduced qualification and disqualification criteria that ultra vires the Constitution by way of importing blanket restriction and disqualification to serving political office holders of which they are constitutionally accorded protection. The practical application of section 84(12) of the Electoral Bill, 2022 will, if assented to, by operation of law, subject serving political office holders to inhibitions and restrictions referred to under section 40 and 42 of the 1999 Constitution (as amended). It is imperative to note that the only constitutional expectation placed on serving political office holders that qualify, by extension as public officers within the context of the constitution is resignation, withdrawal or retirement at least 30 days before the date of the election.”
Buhari, therefore summed it up as, “Stretching things beyond the constitutional limit to import extraneous restriction into the constitution on account of practical application of section 84(12) of the bill where political parties’ conventions and congresses were to hold earlier than 30 days to the election.”
But this is not the only section that should be of concern to stakeholders, particularly the political parties and aspirants for elective offices. For instance, Section 29 (1) stipulates that parties must conduct primaries and submit their list of candidates at least 180 days before the general elections. Section 65 states that INEC can review results declared under duress. Section 3 (3) states that funds for general elections must be released at least one year before the election. Section 51 says that the total number of accredited voters will become a factor in determining over-voting at election tribunals. Section 54 (2) makes provisions for people with disabilities and special needs. Section 47 gives legislative backing for smart card readers and any other voter accreditation technology that the Independent National Electoral Commission (INEC) deploy. Section 34 gives political parties power to conduct a primary election to replace a candidate who died during an election. Section 50 gives INEC the legal backing for electronic transmission of election results. Section 94 allows for early commencement of the campaign season. By this provision, the campaign season will now start 150 days to the Election Day and end 24 hours before the election.
Sharing his thoughts on the provisions of the amended Electoral Act, Abuja-based constitutional lawyer, Dr. Kayode Ajulo explained that Section 29(1) stipulates that parties must conduct primaries and submit their list of candidates at least 180 days before the general elections. “Under the Old Act, political parties had a period of 60 days to submit the list of candidates before the general election. The trend before in the country is for political bigwigs in the parties to deliberately postpone their primaries in the bid to get candidates for their personal and aggrandizement.”
Section 3(3) states that funds for general elections must be released at least one year before the election. Ajulo said, “One can easily recall the logistics problems faced in the past by INEC to get adequate resources for ballot boxes and papers. At the last general election, approval of funds for the election were given just few days before the election.” In the case of Section 51 which says that the total number of accredited voters will become a factor in determining over-voting at election tribunals. The Abuja-based lawyer commends it as “a restatement of the judicial pronouncement of the courts with respect to the proper way of proving over-voting. The courts have held that the law is well settled that in order to prove over voting the petitioner must do the following: tender the voters register; tender the statement of results in appropriate forms which would show the number of registered accredited voters and number of actual votes; relate each of the documents to the specific area of his case in respect of which the documents are tendered; show that the figure representing the over-voting if removed would result in victory for the petitioner.
Also throwing light on the provisions of Section 34 that gives political parties power to conduct a primary election to replace a candidate who died during an election, Ajulo said, “Under the provision of Section 33 of the old Electoral Act, a political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to Section 32 of the Act, except in the case of death or withdrawal by the candidate. Worthy of note is that the provision did not specifically stipulate the time frame to make the substitution in the case of death of a candidate. One would recall that a similar situation happened in Kogi State which ended up in INEC declaring the party with the second highest number of votes as the winner of the election. By this new provision, one can easily conclude that votes cast at the poll are not for the individual but for the party as held by the courts in several decisions.
His views on Section 50 gives INEC the legal backing for electronic transmission of election results. “It is interesting to recall that the issue of election server was the highlight of the 2019 presidential election tribunal. It is pertinent to recall that it is the petitioners’ case that the results of the Presidential election were transmitted electronically into the imaginary server from all the polling units in the country. It suffices to start on the premise that such an argument is a sham. Of more importance is that what Nigerian Electoral law recognises is the Form EC8 Series, especially Form EC8A, signed by agents, collation officers, etc, at the Polling Units. The only way to prove election results in Nigeria today is by the approved forms: the EC8 series. Not by any Server or Servers. With this new provision, the perdurable question we have to consider is whether the servers would take the place of Form EC8 series. We would also have to battle the issue of data networks and availability of electronic voting for persons in the rural and remote areas.”
Section 94 allows for early commencement of the campaign season. By this provision, the campaign season will now start 150 days to the election day and end 24 hours before the election. Under the old Act, campaign season is usually a period of 90 days before the election. This new provision will allow candidates and political parties reach more people in record time before the election and to be able to determine the strength of their political reach before the election.
Taking a very calamitous position on the Electoral Act 2022, the Lead Visioner, Lagos4Lagos Movement, Dr. Abdul-Azeez Olajide Adediran (Jandor), while berating the ruling APC as a party that suppresses the will of the majority and internal democracy, noted that the president has inadvertently signed the death warrant of the APC. “We are glad that the president has bowed to the popular will of the people. We are more gladdened that the signing has signified a death knell for APC, especially in Lagos, where it has never won any election without the use of hoodlums.”
He further stated that the Ammended Electoral Act will strengthen the electoral process thereby enhancing the people’s faith in the electoral system.
Mr. Yusuph Olaniyonu, Media Aide of the immediate past Senate President, Dr. Bukola Saraki said 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. According to Olaniyonu, “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.” He said further, “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.”
The Speaker of the House of Representatives Rt. Hon. Femi Gbajabiamila said the president’s action was in line with the APC’s determination to bequeath a legacy of an improved democracy to Nigerians. The speaker noted that the new law is a collaborative effort by all stakeholders made up of Civil society organisations, Labour, the media and the Independent National Electoral Commission. “That this is what happens,” he said, “when all stakeholders work together in the best interest of the country.”
One of the immediate consequences of the new Electoral Act was the announcement of revised timetable for the 2023 national elections by the Independent National Electoral Commission (INEC).
Going by the INEC timetable, the notice for the 2023 general elections would be published on Monday, February 28, to fall in line with the 360 days stipulated in the Electoral Act 2022. This was announced by INEC Chairman, Prof. Mahmood Yakubu who also assured the public that the commission had the capacity to transmit the results of the 2023 general election electronically.
INEC chairman noted that “under the law, there are critical time bound activities from the publication of Notice of Election to the Conduct of Polls, which form the Timetable and Schedule of Activities for elections.”
He said the Presidential and National Assembly elections will now hold on Saturday, February 25, 2023 as against February 18 earlier announced, while governorship and state houses of assembly elections hold on March 11, 2023.
*First published in ThisDay on 28 February, 2022.
