Credible polls: Unease over Electoral Act amendment




Buhari confers with the Senate President Ahmed Lawan and Reps Speaker Femi Gbajabiamila during the former's previous visit to the National Assembly

… We’ve achieved what we set for ourselves – Lawan

‘…You lack powers to legislate on e-transmission of results’

…Approval for election rigging – PDP

…It’s coup against the people – IPAC

…For political elite’s interest – Ojo

Electoral laws remain extremely important in a democracy; it is the compass that guides the electioneering process. As the National Assembly makes some amendments, ABDULRAHMAN ZAKARIYAU writes on the concerns raised by the citizens ahead of the 2023 general elections.

Over the years Nigerian elections have been characterised by ballot-snatching, vote-buying, changing of results, violence, under-age voting, bloodshed and other forms of unlawful acts that in most cases discredit the outcomes.

The immediate past chairman of the Independent National Electoral Commission (INEC), Prof. Attahiru Jega, while commenting on the nation’s electoral laws, said, “All over Africa to some extent, throughout the developing world, the electoral process is failing to entrench good governance and stable and sustainable democratic political systems as a result of what can be termed as a deficit of electoral integrity.”

Consequently, the Abubakar Bukola Saraki-led the 8th Senate made some amendments to the electoral system three times, but President Muhammadu Buhari in 2018 withheld his signature on the grounds that it was too close to the 2019 general elections.

And determined to make some changes, the 9th Assembly re-introduced it and the chairman of the Senate Committee on INEC, Kabiru Gaya, and his counterpart in the House, Aishatu Dukku, and their colleagues swiftly set to work on the legislation to address the challenges and accommodate new ideas and innovations through the Electoral Amendment Act.

Notably, the much-anticipated bill seeks to repeal and re-enact the 2010 Electoral Act as well as resolve issues concerning INEC’s introduction of modern technologies into the electoral process, particularly accreditation of voters, electronic voting and electronic transmission of results from polling units.

Expectedly, the section which accommodated the electronic voting and transmission of results generated a lot of rancour between senators and representatives.

The contentious sections, the drama

The electoral amendment report in the Senate contained 154 sections and out of this, the provision of Section 52 (3) of the Electoral Act (amendment) Bill 2021 was the most contentious. The section deals with the electronic transmission of results of elections, which was one of the major recommendations from Nigerians including INEC. It reads, “The Commission may transmit results of elections by electronic means where and when practicable.”

During the hearing, the Senate Deputy Whip, Sabi Abdullahi, swiftly moved to amend the section, proposing that “the Commission may consider electronic transmission provided the national network coverage is adjudged to be adequate and secure by the Nigerian Communications Commission and approved by the National Assembly.”

The amended version adopted by the Senate after voice votes and votes counted during division states, “INEC may consider the electronic transmission of results provided the National Network coverage is adjudged to be adequate and secure by the Nigerian Communication Commission (NCC).”

Interestingly, the section which took the Senate about three hours to consider and approve, first created a stalemate when Senator Albert Akpan Bassey (PDP, Akwa Ibom North-east), countered the amendment made by Abdullahi. Bassey Akpan sought the retention of the provision as originally proposed by the committee which was, however, voted against when put to voice votes as ruled by Senate President Ahmad Lawan.

However, after the ruling, the Senate was in a stalemate for about 15 minutes, which led to a hurried closed door session. As the lawmakers failed to reach a consensus on the matter at the closed door session which lasted about one hour, the minority leader, Enyinnaya Abaribe, rose through Order 73 of the Standing Rules to call for a division on amendment sought by Senator Akpan.

Following this, therefore, the clerk of the Senate, Ibrahim El-Ladan, presided over the election by calling the senators one after the other on a state by state basis.

Remarkedly, at the end of the physical voting which lasted about 40 minutes, a total of 80 senators voted, out of which 52 voted for the amendment made by Senator Sabi Abdullahi and 28 voted for the original provision of the clause. As announced by the clerk, 28 senators were absent during the division and voting session.

Interestingly, while all the 52 senators who voted for the amendment belonged to the ruling All Progressives Congress (APC), 26 out of the 28 who voted against the amendment belonged to the Peoples Democratic Party (PDP).

Other amendments

Other amendments include Section 68 of the legislation that reads, “The decision of the Returning Officer shall be final on any question arising from or relating to the unmarked ballot paper, rejected ballot paper and declaration of scores of candidates and the return of a candidate…“provided that the Commission shall have the power within seven days to review the declaration and return where the Commission determines that the said declaration and return were not made voluntarily or was made contrary to the provisions of the law, regulations and guidelines, and manual for the election.”

Section 64(2) reads, “A decision of the Returning Officer or the Commission under subsection (1) may be reviewed by a Tribunal or Court in an election petition proceeding under this bill.”

Also, the limit of election spending was increased in the new bill passed by the Senate. Section 91 of the bill now allows presidential candidates to increase their cash ‘haul’ from the current N1 billion to N5 billion while governorship candidates can mobilise N1 billion from the hitherto N2 million.

While senatorial candidates can now legally raise N100 million from the previous N40 million, then candidates to the House of Representatives can now accept N70 million from the current N30 million. And for the State Assembly, candidates are now free to secure N30 million from the previous N10 million.

Lawan’s take

The President of the Senate, Dr. Ahmed Lawan, in his remarks, said with the passage of the Electoral Act Amendment Bill, they have “achieved what we have set for themselves.” He stated this in a statement signed by his special assistant on press, Ezrel Tabiowo.

The statement read in part, “We have achieved what we have set for ourselves. We would all recall that at the beginning of the Ninth Senate, we resolved to have a legislative agenda. (And) in our legislative agenda, the Petroleum Industry Bill and amendment of the Electoral Act 2010 are pillars of what we have set for ourselves to do.

“Today, we have achieved those two issues. Secondly, the Electoral Act amendment, we have gone through a serious and probably torturous process to reach where we have to bypass it. There was no victor, no vanquished in this affair. Everyone did what he or she did for the full commitment and realization that what we want is the same thing, but the paths we have taken are different.

“We want an electronic transmission system for our electoral process, however, we want to ensure that no Nigerian is disenfranchised in this process, and time will come when all parts of Nigeria will have the coverage that we all need to deploy our technology to ensure electronic transmission of election results.

“This has come to settle the issue of what INEC can do and what INEC cannot. We have given INEC an electoral Act amended to enhance its performance.”

Tambuwal’s declaration

Meanwhile, the Sokoto state governor, Aminu Tambuwal, has declared as unconstitutional the decision of the Senate on the electronic transmission of election results.

The former speaker of the House of Representatives in a statement said, “The decision of the Senate to subject INEC’s constitutional power to conduct elections to the Nigerian Communications Commission (NCC), and National Assembly is patently unconstitutional. For the avoidance of doubt, S.78 of the Constitution provides that, “The Registration of voters and the conduct of elections shall be subject to the direction and supervision of the Independent National Electoral Commission.” In the Third Schedule, Part 1, F, and S.15: INEC has the power to organise, undertake and supervise all elections.”

It read further, “The Constitution further provides that INEC operations shall not be subject to the direction of anybody or Authority. Unquestionably, the mode of election and transmission are critical parts of the conduct, supervise, undertaking and organisation of elections in Nigeria. Of course, the National Assembly has the power to flesh out the legal framework but that has to be consistent with the Constitution.

“These constitutional powers have been solely and exclusively prescribed by the constitution to INEC, and cannot be shared with the NCC, or any other Authority, and certainly not a body unknown to the Constitution. The Senate decision to subject INECs constitutional power to conduct elections to NCC is consequently patently unconstitutional and unlawful.”

PDP’s angst

In its reaction, the Peoples Democratic Party (PDP) stated that the approval of electronic transmission of election results with conditionalities was allegedly for mass rigging of 2023 elections by the APC.

The party in a recent statement by its national publicity secretary, Kola Ologbondiyan, declared that, “The action of the APC senators is an atrocious assault on the sensibilities of Nigerians, who looked up to the Senate for improvement in our electoral process in a manner that will engender free, fair and credible process.

“The APC and its senators, in their desperate bid to annex the Independent National Electoral Commission (INEC), seek to route a statutorily independent commission to the approval of an individual masquerading in the Nigeria Communication Commission (NCC); an agency under executive control in addition to an extra endorsement of the legislature, before conducting elections.    

“It is, to say the least, a preparation for mass rigging of elections across Nigeria by the APC, which must be firmly resisted.”

Yiaga Africa’s view

In his comments, the executive director of Yiaga Africa, Samson Itodo, said the Senate took an ignoble path in respect to Section 52 by adopting the committee’s recommendation.  Itodo, who stated this when he appeared on Channels Television’s Breakfast Show, Sunrise Daily, said, “As a Nigerian I feel it is embarrassing, disgusting and quite shameful what transpired at the Senate.

“What we saw is a determination of some individuals to block a fundamental critical amendment that will deepen the integrity of our elections. And it’s quite sad because what the senators did was to vote against the will of Nigerian people after speaking and demanding that INEC should be given the power to use its discretion to determine the procedure for voting, as well as the transmission of results.

“We also saw what I consider a constitution overreach and breach, where the desperation and of some political class, particularly some legislators, in trying to undermine the independent of INEC and undermine our electoral process by subjecting the decision and powers of INEC to approval by a government agency that is unknown to the Constitution.”

An analyst’s take

A public affairs analyst, Jide Ojo, in his submission, said what transpired in the National Assembly was not in party’s or national interest, but for the interest of the political elite in the country.

Ojo, in a phone conversation with this reporter, said, “For me it’s a letdown. It’s a betrayal of the people’s trust. And they have failed to deliver, because what they delivered is dead on and is not something you can bank on for credible 2023 elections.

“So, for introducing that controversy and asking INEC to go and get an approval of NCC, then get the final nod from the National Assembly shows how selfish the National Assembly is. They have thrown cord in whatever good intentions they have.”

“Ultimately, when that version of the Senate is sent to the president, the President will definitely veto it. And I know there may likely be a repeat of what happened in 2018. In 2018, when the National Assembly introduced 3 controversial clauses, one of them was 25 (1) where the day INEC should conduct election over three zones and that election of the National Assembly should come first, followed by that of the president and then governors and others. And the president said no, you do not have that power to alter the focus of elections for INEC; that was three years ago. So, why should they now think they can subvert INEC’s independence by asking it to get approval from NCC and National Assembly.

“This obviously means that even if the president is persuaded to sign it, the court will reject that bill. And I can tell you that there are so many people who will go to court to challenge the National Assembly. So, we will be having litigation before pre- election and that will bring about a lot of uncertainty.”

He said further, “With what played out in the National Assembly, it is obvious that the difference between APC and PDP is like the difference between six and half a dozen.

“But having said that, what the National Assembly is doing is to work in the interest of the political elite in Nigeria inclusive of APC, PDP and others. It’s all about their collective interest as political elite who want to perpetuate themselves in power.”