A Peep Into Proposed Electoral Act Amendments

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Prof. Mahmood Yakubu

Some of the provisions in the proposed amendment to the electoral act might interest you, writes Chuks Okocha

Asshatu Jubril Dukku, last week, presented a preview of the much-expected electoral bill to the House of Representatives. The reform Bill contained series of innovations that could improve election management in the country, if eventually passed into law.

The bill, which has since passed the second reading at the floor of the House, was first introduced in July 2020. The Bill seeks to repeal the Electoral Act No. 6, 2010 and enact the Independent National Electoral Commission Act 2020, to regulate the conduct of federal, state and area council elections and for related matters.

The bill, among other things, make provisions for the restriction of the qualification for elective office to relevant provisions of the Constitution of the Federal Republic of Nigeria 1999 (as amended); use of Card Readers and other technological devices in elections and Political Party Primaries.

It will also seek to provide a timeline for the submission of list of candidates, criteria for substitution of candidates, limit of campaign expenses, and will address the omission of names of candidates or logo of political parties.

According to the Dukku, who is also the Chairman of the House of Representatives Committee on INEC, the amendments to the current act become necessary, because of the flaws observed in the electoral system.

She explained that it was no longer news that the electoral experiences since 1999 show a strong correlation between an efficient and effective electoral legal framework and the conduct of free, fair and credible elections.

Amendments to the electoral laws, she stated were long identified as priority legislation by the National Assembly, because of the need to consolidate on the gains of the nation’s democratic achievements and to also address the lacuna identified in the electoral legal framework.
Giving reasons why the electoral act must be amended, the House committee chairman on INEC said a typical example was the case of the Kogi State governorship election in 2015, where a leading candidate died before the declaration of results.

In addition to this, she said there were concerns that the legal framework on certain issues should be well settled ahead of the 2023 elections such as the use of technological devices like the Card Reader and electronic voting system, criteria for substitution of candidates, disclosure of source of funds contributed to political parties, replacement of lost or destroyed permanent voters card, penalty for the possession of fake voters’ card, dates for conducting primary election shall not be earlier than 150 days and not later than 120 days before the date of election, etc.

Accordingly, the bill therefore sought to address many loopholes in the electoral system by way of amending over 300 clauses (including new provisions) of the Electoral Act 2010.

These amendments include sections of the Electoral Act 2010 amended by the 8th National Assembly, which was not assented to by the President due to some typographical errors observed in the Bill and a draft proposal from the Independent National Electoral Commission (INEC).

According to the proposed amendments Section 3(2) (a) which provides definite timeline for the release of fund to the Commission for the discharge of its statutory duties, the amendment is an insertion, which states that, “the funds for General Election shall be released to the Commission not later than 180 days to the date appointed for the elections” after the word “Commission” in that section.

Under Conduct and Postponement of Election in Emergency, section 26 (3) and (4) is amended as: “Where an election has commenced and there is reason to believe that there is or has been substantial disruption of election in a polling unit or constituency or it is impossible to continue with the election occasioned by threat to peace and security of electoral officials and materials, the Commission shall suspend the election and appoint another date for the continuation of the election or the process thereof.”

In the amendments proposed, where the Commission appoints a substituted date in accordance with subsections (2), (3) and (4) of this section, there shall be no return for the election until polling has taken place in the area or areas affected.

Also, Under Oath of Neutrality By Election Officers, section 28 (1) is amended as follows: “All Staff, Electoral Officers, Presiding Officers, Returning Officers, Security Officials and Staff taking part in the conduct of an election shall Affirm or Swear to an Oath of Loyalty and Neutrality indicating that they will not accept bribe or gratification from any person, and Shall perform their functions and duties impartially and in the interest of the Federal Republic of Nigeria without fear or favour.”

In Section 30 under Notice of Election, it is amended with a new subsection (4), which states that: “There shall not be substitution of candidates in a by-election except, where a candidate of a political party in a by-election dies, the party shall submit to the Commission the name of its substitute candidate within 48 hours of the death of the candidate in the form prescribed by the Commission.”

Section 34 under Publication of Nomination, is amended by inserting new sub-sections (2) and (4), which states that: “Any candidate, who observes his name or that of his party missing on the list published in accordance with subsection (1), shall notify the Commission in writing, signed by himself and supported with an affidavit not later than 21 days to the election.

Other proposals contained in the amendments sighted by THISDAY, are “Where the candidate fails to notify the Commission in accordance with subsection (2), the candidate shall be deemed to have waived his right.

Others are that the Commission shall produce ballot papers for the relevant elections in accordance with the list published after corrections in conformity with subsection (2).”

Section 36 (1) under Death of a Candidate is amended as follows: “If after the time for the delivery of nomination paper and before the commencement of the poll, a nominated candidate dies, the Chief National Electoral Commissioner shall, being satisfied of the fact of the death, countermand the poll in which the deceased candidate was to participate and the Commission shall appoint some other convenient date for the election within 14 days. And a new subsection (3) is provided, thus:

“(3) If after the commencement of polls and before the announcement of the final result and declaration of a winner, a candidate dies,
(a) The Commission shall, ‘being satisfied of the fact of the death, suspend the election for a period not exceeding 21 days;
(b) The political party whose candidate died may, if it intends to continue to participate in the election, conduct a fresh primary within 14 days of the death of its candidate and submit the name of a new candidate to the Commission to replace the dead candidate; and
(c) Subject to paragraphs (a) and (b) of this subsection, the Commission shall continue with the election, announce the final result and declare a winner.”

In the proposed changes, the amendment in section 38 under Failure of Nomination is new insertion of subsections 25, which provides that, “Where there is a valid nomination by at least one political party, failure of a political party to validly nominate a candidate does not constitute ground for extension of time for nomination or postponement of election.

“Polling Agents, who are in attendance at a polling unit, are entitled, before the commencement of the election, to have originals of electoral materials, including ballot papers, result sheets, ballot papers’ account and verification documents and other electoral forms to be used by the Commission for the election inspected, and this process may be recorded in writing, on video or by other means by any Polling Agent, accredited observer or official of the Commission.

“Where it is determined that there has been a substantial compliance with this provision in respect of the polling unit, the elections at that polling unit shall not be invalidated.”

The amendment sought prescribed sanctions where necessary. It said, a Presiding Officer, who contravenes subsection (3) or (4) commits an offence and is liable on conviction to at least a term of one year imprisonment or a fine of N1,000,000, or both.

Section 42 (1) and (2) under Establishment of Polling Units is amended as follows: “The Commission shall divide each Local Government Area into Registration Areas not being less than 10 and not more than 20 as the circumstance of the Local Government Area may require. The Commission shall establish sufficient number of polling units in each Registration Area/Electoral ward and shall allot voters to such polling units.

Section 49 (1) and (2) under Issue of Ballot Paper is amended as: (1) a person intending to vote in an election shall present himself with his voter’s card to a Presiding Officer for accreditation at the polling unit in the constituency in which his name is registered.

(2) The Presiding Officer shall use a Smart Card Reader or any other technological device that may be prescribed by the Commission, for the accreditation of voters, to verify, confirm or authenticate the particulars of the voter in the manner prescribed by the Commission.

A new subsection (3) provides that, where a smart card reader deployed for accreditation of voters fails to function in any unit and a fresh card reader is not deployed, the election in that unit shall be cancelled and another election shall be scheduled within 24 hours.”

Section 52 (1)(b) under Conduct of Poll By Open Secret Ballot is amended as follows: “(b) The Commission may adopt electronic voting or any other method of voting in any election it conducts as it may deem fit.”

Section 53 (2) and (3) under Over Voting is amended as, “Where the votes cast at an election in any polling unit exceed the number of accredited voters in that polling unit, the result of the election for that polling unit shall be declared null and void by the Commission and another election may be conducted at a date to be announced by the Commission, where the result at that polling unit may affect the overall result in the Constituency.

The amendments being sought further stated that, where an election is nullified in accordance with subsection (2) of this section, there shall be no return for the election until another poll has taken place in the affected polling unit.

Section 85 (1) under Notice of Convention, Congress, etc, is amended as follows: (1) Every registered political party shall give the Commission at least 21 days’ notice of any convention, congress, conference or meeting convened for the purpose of “merger and fusion” and electing members of its executive committees, other governing bodies or nominating candidates for any of the elective offices specified under this Act.

There’s a new subsection (5) which provides that: “Failure of a Political Party to notify the Commission as stated in subsection (1) shall render the convention, congress, conference or meeting invalid.

Section 90 (1) under Power To Limit Contribution To A Political Party is amended as follows: “The Commission shall have power to place limitation on the amount of money or other assets, which an individual can contribute to a Political Party or candidate and to demand such information on the amount donated and source of the funds.

A new subsection (2) provides that: “Any individual, candidate or Political Party, who exceeds the limit placed by the Commission in subsection (1) of this section shall be guilty of an offence and shall be liable on conviction to: (a) in case of a Political Party, a line not exceeding N10,000,000 and forfeiture of the amount donated. In case of an individual, a tine of 5 times the amount donated in excess of the limit placed by the Commission.

There’s the Section 91 under Limitation On Election Expenses. It is amended as follows: (1) Election expenses shall not exceed the sum stipulated in Sub-Sections (2), (3), (4), (5), (6) and (7). On election expenses, the maximum election expenses to be incurred by a candidate at a presidential election shall not exceed N5,000,000,000.00.

“The maximum amount of election expenses to be incurred by a candidate in respect of governorship election shall not exceed N1,000,000,000.00. The maximum amount of election expenses to be incurred by a Candidate in respect of Senatorial and House of Representatives seat shall not exceed N100,000,000.00 and N70,000,000.00 respectively.

“In the case of State Assembly election, the maximum amount of election expenses to be incurred by a candidate shall not exceed N 30,000,000.00.

“In the case of a chairmanship election to an Area Council, the maximum amount of election expenses to be incurred by a candidate shall not exceed N30,000,000.00 and in the case of Councillorship election to an area Council, the maximum amount of election expenses to be incurred by a candidate shall not exceed N5,000,000.00.

Section 91 (1) under Limitation on Political Broadcast and Campaign By Political Parties is amended as: “For the purpose of this Bill, the period of campaigning in public by every political party shall commence 150 days before polling day and end 24 hours prior to that day.”