Electoral Law Crisis: Buhari, NASS face off imminent

Between February this year and today, four different versions of Amendments to the 2010 Electoral Act were drafted by the National Assembly and forwarded to President Muhammadu Buhari for assent, but the president on Friday declined assent to the Bill, about 70 days to the next year’s general elections. TAIYE ODEWALE, ISE-OLUWA IGE, BODE OLAGOKE, ABDULRAHMAN ZAKARIYAU and KEHINDE OSASONA, in this report, examine the intrigues, the politics and the power-play.

Card Reader in trouble
Efforts made to give legal backing to the usage of card reader in the nation’s electoral process failed on Friday with refusal of President Buhari to assent to the 2010 Electoral Act (Amendment) Bill 2018 forwarded to him for the fourth time by the National Assembly.

The National Assembly in a bid to get a new Electoral Act for the conduct of the 2019 general elections, harmonised all the provisions contained in the first, second and third versions of the Bill in the fourth one forwarded to the President for assent.

During passage of the Bill at both chambers of the National Assembly, all the observations raised against some provisions of the previous ones were said to have been removed while legalisation of the usage of card readers in electoral process in the country was legalised.

Usage of the device in the electoral process may now run into problem of illegality with the refusal of assent to the Bill by the President.

The President, according to his Senior Special Assistant on National Assembly Matters (Senate), Senator Solomon Ita  Enang, has already communicated his decision on the Electoral Act to the National Assembly.

“President Muhammadu Buhari has taken decision on Electoral Act Amendment Bill 2018 in accordance with the power vested on him by the 1999 Constitution and has communicated the decision to the Senate and House of Representatives in accordance with the Law.

“The president has taken a decision in accordance with the powers vested in him by the constitution and by convention that decision can only be revealed by the person(s) to whom it is addressed.

“But the electoral bill has left (the office of) Mr. President because he has taken a decision (on it) and has remitted it back (to the National Assembly),” he said.

He noted that “the implication of that decision on the 2019 elections is that the President has taken action on the bill within the time allowed by law.”

But Enang had, on Monday, this week, urged Nigerians to disregard rumours suggesting that President Buhari would not sign the controversial Electoral Act 2018.

Enang had said Buhari was still operating within the time frame allowed by the Nigerian Constitution to either sign the bill or withhold his assent.

By the provision of the Constitution, the president is to either sign or write to the National Assembly within 30 days with respect to the legislation transmitted to him, stating his reasons for his action.

Assent refusals
The first of such refusal of assents to the 2010 Electoral Act (Amendment) Bill 2018 drafted and transmitted by both chambers of the National Assembly to President Muhammadu Buhari was the one passed on Wednesday, February 14, this year, which has re-ordering of sequence of 2019 general elections in its provisions with attendant in house-fighting on it within the Senate.

Joint committees of both chambers of the National Assembly had in their recommendations, as contained in Section 25(1) of the first version of the Amendment Electoral Bill 2018, sought to re-order sequence of 2019 general elections from the Template earlier provided and made public by the Independent National Electoral Commission (INEC) in October, last year.

While in the INEC time-table, as announced by the Chairman, Prof. Mahmoud Yakubu, Presidential and National Assembly elections were fixed for Saturday, February 16, 2019, and governorship and Houses of Assembly elections fixed for Saturday, March 2, 2019, the National Assembly in its re-ordering of sequence of the elections proposed that the National Assembly elections should be conducted first, followed by Governorship and Houses of Assembly elections with the presidential election coming last.

Though the Section, as explained then by the lawmakers, was intended to bring about credibility into the electoral process devoid of bandwagon effects which usually happen if presidential election is conducted first, but some of them, particularly in the Senate, kicked against the provision which, according to them, was allegedly targeted
at President Muhammadu Buhari.

In fact, Senator Ovie Omo-Agege (APC, Delta Central), was suspended by the Senate at the time for six months for declaring in an open interview that he and nine other senators granted the Senate correspondents, that the provisions of Section 25(1) of the amended Electoral Bill were targeted at President Buhari and would never see
the light of the day as far as Presidential assent was concerned.

Buhari’s reasons
President Buhari on Friday gave reasons to the National Assembly for withholding assent to the fourth version of the 2018 Electoral (Amendment ) Bill.

This is even as he committed blunder in separate letters written to the leadership of both chambers yesterday by referring to the 2010 Electoral Act as 2015 Electoral Act.

The President in the letter separately addressed to the Senate President, Bukola Saraki, and Speaker House of Representatives, Yakubu Dogara, appealed to the lawmakers to forward date application of the provisions contained in the Bill till after the conduct of the 2019 general elections.

The letter dated October 8, 2018, and personally signed by President Buhari read: “Pursuant to section 58(4) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), I hereby convey to the Senate, my decision on 8th December, 2018 to, decline Presidential Assent to the fourth version of the Electoral (Amendment) Bill 2018
forwarded to me by the National Assembly on the 8th of November, 2018.

“My refusal of assent to the Bill for now is principally because I am concerned that passing a new Electoral Bill this far into the electoral process for the 2019 general elections which commenced under the 2015 Electoral Act could create some uncertainties about the applicable legislation to govern the process.

“Any real or apparent change to the rules this close to the election may provide an opportunity for disruption and confusion in respect of which law governs the electoral process.

“This leads me to believe that it is in the best interest of the country and our democracy for the National Assembly to  specifically state in the Bill, that the Electoral Act will come into effect and be applicable to elections commencing after the 2019 general elections.”

Expectedly, in March, this year, when the President vetoed the Bill, the major reason he cited for doing so was the inclusion of the contentious provision of Section 25(1).

The President, in his rejection, said the inserted section in the Electoral Act violates the provisions of Section 72 of the 1999 Constitution, which empowers INEC to fix dates of elections and see to their conduct in all ramifications.

As a way of getting the required legal framework cum guidelines for conduct of the 2019 general elections on ground for INEC to operate with, the National Assembly in its second version of the Electoral Bill, removed the contentious Section 25(1) and transmitted it for assent by the President in June which was, however, not attended to in
anyway by President Buhari.

The Bill in line with constitutional provisions was allowed to die naturally by the President by not considering it within the 30 days’ duration required. It was transmitted to him on June 27, 2018, and died unceremoniously on July 26, 2018, 30 days after.

Apparently determined to get a new Electoral Act on the table for INEC for the conduct of the 2019 general elections, the National Assembly, on July 24, 2018, before embarking on its yearly long recess, passed the third version of the Bill and transmitted it for Presidential assent on August 3, 2018.

But the President, in withholding his assent on September 2, 2018, cited different reasons for doing so.

President Buhari, according to a press statement issued by his Senior Special Assistant on National Assembly Matters (Senate), Senator Ita Enang, on September 3, raised issues of drafting errors in his comment on the bill through a letter dated August 30, 2018, and communicated the National Assembly for needed correction.

Enang, in the statement titled: “Presidential Decision to Decline Assent to Electoral (Amendment) Bill 2018,” said: “His Excellency, President Muhammadu Buhari, GCFR, has by communication dated August 30, 2018, to the Senate and the House of Representatives declined Assent to the Electoral (Amendment) Bill, 2018.

“I pray for leave, that in view of public interest, the fact of the National Assembly vacation, the imperative to avoid speculation and misinformation, that I give just a few of the rationale by Mr. President. Mr. President is declining assent to the Electoral Amendment Bill due to some drafting issues that remain unaddressed following the prior revisions to the Bill.

“Mr. President invites the Senate and House of Representatives to address these issues as quickly as possible so that he may grant President Assent to the Electoral Amendment Bill.”

It further read: “A few of the outstanding issues are: There is a cross referencing error in the proposed amendment to Section 18 of the Bill. The appropriate amendment is to substitute the existing sub-Section (2) with the proposed sub-Section (1A), while the proposed sub-Section (1B) is the new sub-Section (2A)

“The proposed amendment should include a new Section 87 (14) which stipulates a specific period within which political party primaries are required to be held has the unintended consequence of leaving INEC with only nine days to collate and compile lists of candidates and political parties as well manage the primaries of 91 political parties for the various elections.

“This is because the Electoral Amendment Bill does not amend Sections 31, 34 and 85 which stipulate times for the submission of lists of candidates, publication of lists of candidates and notice of convention, congresses for nominating candidates for elections.”

But the National Assembly two weeks after precisely on September 17, moved into action towards carrying out the suggested amendments by the President through its joint committee on INEC.

Announcing the move at a joint sitting of the National Assembly Committees on Independent National Electoral Commission (INEC), Senator Suleiman Nazif (PDP, Bauchi North), said the fresh move was necessitated by the failure of the three earlier ones to get Presidential assent.

“I know that this committee is in the eye of the storm and Nigerians are desirous and expecting to hear from us. Here we are, again, trying to address the Electoral Act for the fourth time.

“Nigerians will recall that there was a first Electoral Act (Amendment Bill), the second and the third one. And if we pass this one, it will be the fourth one. I believe that what we are doing is in the best interest of this country. It will address all the fears and we will ensure that we equip INEC with what is necessary and what will ensure free and fair elections in 2019,” he said.

Both chambers of the National Assembly on October 23, passed the fourth version of the Bill containing all the required amendments requested for by the President.

The Bill transmitted to the President for assent on November 8, 2018, has the following striking provisions across all the clauses totalling 38, like legalisation of card reader and electronic transmission of election results from polling units to collation centres as new innovations into electoral processes and conduct in the country.

Others are N5 billion as expected maximum expenses to be incurred by candidates running for the position of President, just as it retained maximum expenses for governorship position at N1 billion.

There is also the upward review of maximum expenses to be incurred by candidates running for senatorial seats, from N100 million to N250 million and those running for the House of Representatives seats from
N70 million to N100 million, as amendments in Clause 25 of the Bill.

Clause 8, Section 33 of the passed Electoral Bill also has provisions for way out in the event of death of candidate of any political parties in course of election as it happened in Kogi state, in November 2015, when Abubakar Audu died as governorship candidate of the All Progressives Congress (APC).

The section reads: “Provided that in the case of such withdrawal or death of a candidate, the political party affected shall, within 10days of the occurrence of the event, hold a fresh election to produce and submit a fresh candidate to the commission for the election concerned.”

In his remarks, after the passage of the Bill, the President of the Senate, Bukola Saraki, said all observations raised by the President in the rejected versions of the Bills have been taken care off for the required assent.

He added that the Bill would go a long in improving electoral processes and conducts in the country.

PDP reacts
Meanwhile, the Peoples Democratic Party (PDP) Presidential Campaign Organisation (PPCO), in its reaction, has charged the National Assembly to save the nation from collapse by overriding President Muhammadu Buhari’s refusal to sign the amendment of the Electoral Act.

The PDP Campaign Organisation in a statement signed by its Director Media and Publicity, Kola Ologbondiyan, on Friday noted that “this legislative action has become imperative as the President’s decision is a calculated attempt to hold the nation to ransom, inject crisis into the electoral process and ultimately scuttle the conduct of the 2019 general elections, seeing that there is no way he can win in a free and fair contest.”

Ologbondiyan also claimed that “President Buhari’s repeated refusal to sign amendments passed to check rigging in the elections, raises issues of his sincerity of purpose and has the capacity to trigger political unrest and violence, which can, in turn, truncate our hard-earned democracy.”

He said: “Nigerians can recall how the Buhari Presidency plotted to plunge the 2019 elections into a needless controversy by delaying the submission of the election budget to the National Assembly, presenting it at the time the legislators were commencing their annual vacation and asking for virement of funds already approved for development projects, instead of sending a fresh supplementary budget for the elections.

“It is unfortunate that Mr. President, in his desperation to hold on to power, has resorted to taking steps that are capable of destabilising our nation, just because the people are resolute in voting him out of office democratically.”

Ologbondiyan added that: “It is also instructive to note that President Buhari is mortally afraid of the amendments because they essentially checked the All Progressives Congress (APC) rigging plans, including the use of under-age and alien voters, vote-buying, alteration of results and manipulation of voter register, for which the APC and the Buhari Presidency have been boasting of winning the 2019 elections.”

Also, the Director-General of the PDP Presidential Campaign Organisation, who is also the Senate President, Dr Bukola Saraki, has said that the President reserves the right to sign or not to sign.

Saraki said: “We have the right, authority to also demand from INEC in terms of engagement. Political parties can take a position. This is the type of election they want. In most countries, political parties meet with the chairmen of their electoral commissions and they agree.”

President meticulous – APC
In his reaction to the issue, the National Publicity Secretary of the ruling All Progressives Congress (APC), Malam Lanre Issa-Oniru, said: “We do have a President that is very meticulous and when the president takes actions; he gives reasons.

“This time is not different, he has from the report l want to believe that he has communicated with the NASS and l am sure in his letter he would state specific reasons he declined assent and by the time you look at those reasons you can only but agree that once again, the President has demonstrated leadership.”

Experts react

Prominent lawyers in the country, including a former Attorney General of Abia state, Prof Awa Kalu (SAN), and a renowned member of the inner Bar, Chief Mike Ozekhome (SAN), on Friday said the refusal by President Buhari to assent to the Electoral Bill was not an end to the move to amend the Electoral Law. Both of them said the 1999 Constitution empowered the National Assembly to pass such bill into law 30 days after the president might have refused his assent.

Chief Mike Ozekhome (SAN) said: “The Electoral Act was meant to sanitise the electoral process and infuse credibility, respectability and honour into our electoral system. It is, therefore, surprising that such a Bill meant to foster democracy can be refused by president if he genuinely means to ensure that we have a free and fair election.

“But all hope is not lost because the makers of the Constitution envisaged a situation like this. The 1999 Constitution expressly provides that if after 30 days, the president refuses to assent to a Bill, the National Assembly can pass that bill at a sitting with two third majority vote. I think therefore that the National Assembly should just wait for the 30 days to elapse and take necessary action.”

Also reacting, Prof Awa Kalu (SAN) said: “If we have a robust National Assembly, even though, it is not quite common for the National Assembly to override the president, the provision is there in the Constitution that all the National Assembly needs do is to wait for the presidential assent and if the assent does not come in 30 days,
they know what to do. However, if there is no amendment to the Electoral Act, or further amendment to the subsisting Electoral Act, what it means is that the Electoral Act 2010 remains in force.”

Also, reacting, an Abuja-based lawyer, Barrister Umar Saleh, said “since President Muhammadu Buhari has refused to sign the Electoral Act into law, NASS can go ahead and exercise its power.”

He said: “His refusal to sign the Electoral Act will definitely affect the 2019 elections. However, the national assembly can still go ahead to exercise its constitutional power.

“Don’t also forget that the Supreme Court has taken a definite position, holding that card readers cannot substitute, overthrow or replace voter registers. Its function, the apex court categorically declared, is simply to authenticate owners of voter cards, and no more.

“The implication is that the use of card reader will not be recognised in 2019, and once that happens, any contention that is brought against the use of card reader would not be backed by Law.”

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