Between Electoral Act and Credibility of Electoral System

Within the last 20 years of Democratic governance in Nigeria, the quest  for credibility of electoral system through required legislation has been made from one National Assembly to the other without the desired results in terms of fairness of the elections as shown in the recently conducted ones in  Kogi and Bayelsa states . TAIYE ODEWALE examines the issues at stake.

The first of such legislative interventions for an electoral system geared towards credibility, fairness and transparency was the 2002 Electoral Act which served as guidelines for the conduct of the 2003 general elections.

However, with perceived lapses in the conduct of the elections and that of the 2007, the 6th National Assembly came up with the 2010 Electoral Act used by the Independent National Electoral Commission (INEC) for the 2011 general elections.

The Electoral Act, 2010, which replaced a 2003 law, was first passed by the National Assembly on July 29, 2010, and signed into law by President Goodluck Jonathan on August 20, 2010.

The law provides the basic legal framework for regulating the conduct of federal, state and area councils’ elections in the country.

The first amendment, the Electoral (Amendment) Act 2010, provided for,  is the  adequate time for the Independent National Electoral Commission (INEC) to issue notices, receive nomination of candidates from political parties and ensure the proper conduct of political parties.

It also contained provisions abridging the time within which INEC should stop the registration of voters before any general election under the Act from 60 to 30 days as well as counting and declaration of results of votes cast for candidates of political parties at each of the polling units by presiding officers before proceeding to ward collation centres.

Theoretically on paper, while Nigeria has some of the most robust electoral rules of any emerging democracy; unfortunately, most of them are primarily observed in the breach by the political actors across party lines in collaboration with other stakeholders in the entire process.

One of such breaches is the campaign financing rules provided for by 2010 Electoral  Act  2010 which put the upper spending limits for candidates  of any of  the  political parties at N1 billion for the presidential contest, N200 million for governorship votes, N40 million for the Senate and N20 million for contest into the House of  Representatives.

Not only were these spending limits breached by candidates of the two main political parties in the polity; that is the Peoples Democratic Party (PDP) and the All Progressives Congress (APC) in the 2015 general elections, but also in the 2019 episode as statistically stated by some monitoring groups like the Westminster Foundation for Democracy, Centre for Social Justice, etc.

In addition, while the 2010 Electoral Act provides stiff imprisonment terms for illegal activities by INEC officials and political actors, it does not prevent persons convicted of electoral offences from re-contesting for office and not in anyway, give the required legal teeth for the electronic devices introduced by INEC in the conduct of the 2015 general elections.

The very reason the 8th National Assembly made several attempts  to make provisions for that in the 2010 Electoral Act  ( Amendment ) Bill 2018 which, however, proved abortive due to refusal of assent to the bill by President Muhammadu Buhari.

One of the key reforms found in the bill is its insistence on the use and mainstreaming of the Smart Card Reader in the electoral process.

 The bill provides that the Presiding Officer shall use a SCR or any other technological device that may be prescribed by INEC for the accreditation of voters, to verify, confirm or authenticate the particulars of the voter in a manner prescribed by the commission.

Where a SCR deployed for accreditation of voters fails in any polling unit and a fresh SCR is not deployed, the election in the unit shall be cancelled and another election shall be scheduled within 24 hours.

 The bill also states that where during the collation of results, there is a dispute regarding a collated result or the result of an election from any polling unit, the Collation Officer or Returning Officer shall use inter alia, the SCR or any other technological device used for accreditation of voters in each polling unit where the election is disputed for the purpose of obtaining accreditation data direct form the SCR or technology device.

The foregoing provisions seek to respond to the lacuna in the existing law, which crystallised in election petition decisions to that effect.

For instance, in 2015 and by extension, the 2019 general elections, the use of the SCR was provided in INEC’s Directives, Guidelines and Manuals without legal backing via provisions of the 2010 Electoral Act, which made many of the petitioners, alleged substantial non-compliance with the provisions of the Electoral Act because the SCR was not used in the accreditation process.

The petitioners in 2015 in particular, averred that election results should be set aside on the basis of the failure to use the SCR. This was the case in Edward Nkwegu Okereke v Nweze David Umahi (SC. 1004/2015); Udom Gabriel Emmanuel v Umana Okon Umana (SC.1/2016); Okezie Victor Ikpeazu v Alex Otti & 3 Ors (2016, 8 NWLR, Part 1513) and Wike Ezenwo Nyesom v Dakuku Adol Peterside & Ors, etc.

Recall that the Supreme Court reasoned as follows in Wike Ezenwo Nyesom v Dakuku Adol Peterside & Others: “The introduction of the card reader is certainly a welcome development in the electoral process. Although it is meant to improve on the credibility of those accredited to vote so as to check the incidence of rigging, it is yet to be made part of the Electoral Act. Section 138 (2) of the Electoral Act envisages a situation where the Electoral Commission issues instructions or guidelines which are not carried out. The failure of the card reader machine or failure to use it for the accreditation of voters cannot invalidate the election.”

The Section stipulates as follows – “An act or omission which may be contrary to the instruction or directive of the Commission or an officer appointed for the purpose of an election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election.”

Thus, the Supreme Court held that INEC’s directives on the use of the SCR has not invalidated the use of the manual accreditation process which is fraught with fraud.

Irked by the judgement, some learned commentators criticised the Supreme Court as aiding and abetting rigging through its interpretation of the status of the SCR.

Professor Itse Sagay in particular in a paper entitled “Farewell to Election Petitions,” stated that the thrust of the decisions “constitutes a devastating blow on democracy.”

However, in an apparent move to address the lacuna ahead of the 2023 general elections, the 9th National Assembly through the Senate on Wednesday last week put machinery in motion for legalisation of electronic devices like the Smart Card Readers (SCR) in electoral process in the country and possibly electronic voting.

Omo-Agege’s charge

This was contained in a bill for an Act to amend the Electoral Act, 2010 and for other related matters 2019, sponsored by the Deputy President of the Senate, Senator Ovie Omo-Agege and passed for second reading.

The bill, according to Omo-Agege, is a response in part to a plethora of Supreme Court decisions that directly called upon the National Assembly to act by enacting laws formalising INEC’s introduction of modern technologies into the electoral process, especially accreditation of voters.

Explaining the provisions of the bill which has 26 clauses, Omo-Agege said, “If finally passed into law, seeks to ensure that the Act clearly forbids members of political parties from taking up employment in INEC; mandates INEC to publish the voters register for public scrutiny at every Registration Area and on its website at least seven days before a general election;

“Mandate INEC to suspend an election in order to allow a political party that lost its candidate before or during an election to conduct a fresh primary to elect a replacement or new candidate; grant agents of political parties the right to inspect original electoral materials before the commencement of an election;

“Grants political parties that nominated candidates for an election a right (exercisable within a specified timeframe) to inspect its identity/logo appearing on samples of relevant electoral materials proposed to avoid incessant cancellation of elections due to exclusion of parties from election due to printers’ errors or deliberate mischief of not including the logos of some parties on electoral materials;

“Clearly mandate INEC to accommodate new technologies in the accreditation of voters during elections, as repeatedly called for the Supreme Court; defines  over voting to include situations where total votes cast also exceed total number of accredited voters;

“Provide  greater clarity and transparency in the process of reaching the final announcement of election results, starting with sorting of ballots, counting of votes, etc; mandate INEC to record and keep relevant detailed information of results sheets, ballot papers and other sensitive electoral materials used in an election, with clear consequences for violation;

Fees payable

“Enact a new Section 87 on Nomination of Candidates by Parties for Elections by prescribing maximum fees payable by aspirants and restricting nomination criteria strictly to relevant provisions of the Constitution; and clarify that under Section 138 (1)(a) of the Principal Act, a person shall be deemed to be qualified for an elective office and his election shall not be questioned on

grounds of qualification if, with respect to the particular election in question, he meets the applicable requirements of sections 65, 106, 131 or 177 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and he is not, as may be applicable, in breach of sections 66, 107, 137 or 182 of the Constitution of the Federal Republic of Nigeria, 1999;

“Provide sanctions for giving false information for purpose of registering a political party and ensure that failure by INEC and others to comply with any provision of the Act carries clear and adequate sanctions.”

Experts’ views

In separate telephone interviews with our reporter on Thursday, the chairman, Senate Committee on Judiciary, Human Rights and Legal Matters, Opeyemi Bamidele (APC, Ekiti Central) and his counterpart on Public Accounts, Mathew Urhoghide (PDP, Edo South) said provisions of the draft bill, if eventually passed and assented to by the president, will help in sanitising the chaotic electoral process.

Bamidele in particular said, “I was not in the 8th Senate and by extension, 8th National Assembly when similar moves were made but one good thing about the new move is that is coming very early and far ahead of 2023 general elections.

“The required legislative inputs would be given to the bill at the Public hearing stage, particularly as regards the need to give the required legal teeth to the electronic and technological devices introduced since 2015 and being used in the electoral process by INEC.

“Doing this will help a lot in sanitising the process and positioning the country for electronic voting in no distant time.”

Time is definitely on the side of the 9th National Assembly in running the bill through the required legislative processes and passed, but the questions are, if passed, will it be assented to by the president this time around. And even if assented to, will it in practical terms ensure the expected sanity in the electoral process going by the do-or-die attitude of political actors across party lines and compromising dispositions of other stakeholders?

Only time will tell.

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