This article by Jide Ojo gives an overview of the Electoral history and laws in Nigeria since 1923, and more importantly, a critique of the controversial Section 52(2) of the Electoral Act Amendment Bill 2021 passed by both Chambers of the National Assembly last week, concluding that the proviso that the transmission of election results by INEC should be subject to the clearance of NCC and NASS is unconstitutional, and therefore, null and void
Introduction
Periodic election, is one of the cardinal principles of democracy. Nigeria’s electoral journey started in 1923, after the coming into force of Clifford Constitution of 1922. In the 98 years of Nigeria’s electoral history, many negative adjectives such as fraudulent, violent, and expensive, have been used to describe the country’s polls. Yet, it is only through elections, that political leaders are expected to emerge in a democracy. Recall that it was a rigged 1964 /1965 General Election, that led to the first military coup of January 15, 1966. After the return to civil rule 13 years after, that is, in 1979, the Second Republic was short-lived, as the military shot itself back to power on December 31, 1983 citing rigged elections in Ondo, Oyo and some other parts of the country, and also due to corruption by the political class.
In order to organise, undertake and supervise all elections in Nigeria, the 1999 Constitution of the Federal Republic of Nigeria established two electoral management bodies (EMBs). The first was the Independent National Electoral Commission which was established by Section 153(f) and States Independent Electoral Commissions established by Section 197(1)(b) of the Constitution. Having birthed these EMBs, the grundnorm also prescribed roles and functions of these bodies, as well as the laws guiding their operations. While some of the laws guiding operations of INEC and SIECs are in the Constitution, the bulk of the laws are either in the Electoral Act for INEC and State electoral laws for the 36 State Independent Electoral Commissions. These EMBs are also at liberty to come up with regulations, guidelines, codes and manuals, all in a bid to enable them conduct credible, free, fair and successful elections.
Brief History of Nigeria Electoral Laws
The National Assembly (NASS), from time to time, has altered the Constitution and Electoral Act, in order to enhance and improve the performance of INEC in the onerous task of conducting national and State elections. While there have been four alterations to the Constitution in the 22 years of this Fourth Republic which started in 1999, there have been four electoral Acts as well, with several amendments. There was 2001 Electoral Act, 2002 Electoral Act, 2006 Electoral Act and 2010 Electoral Act. The 2001 Electoral Act was short-lived, due to certain controversial clauses contained therein. One of such was the National Assembly’s plan to make laws for the conduct of Local Government elections, which was challenged by Attorney-General of Abia State, and was ruled in favour of Abia State by the Supreme Court, that NASS has no power to make laws for the conduct of LG elections.
The 2002 Electoral Act was then passed, and used for the conduct of 2003 General Election. That too, contained an obnoxious section, trying to order the sequence of election for INEC. The Commission went to court, and the court agreed and struck out that section, saying that NASS has no such power to order sequence of elections for INEC.
The 2006 Electoral Act, also had its own controversial section. Conference of Nigeria’s Political Parties, went to court to challenge the sharing of grants to political parties. Justice Abimbola Augie of the Federal High Court in December 2006, ruled that that section of the Electoral Act 2006 was at variance with provision of Section 228(c) of the Constitution, which stipulated fair and equitable sharing of grants meant for political parties.
INEC has conducted three General Elections, using the Electoral Act 2010. These are the 2011, 2015 and 2019 General Elections. While the Act was amended in 2015, it was not signed into law by President Goodluck Jonathan until very close to the elections of that year. In fact, as at the time of the 2015 General Election, the amended 2010 Electoral Act had not been gazetted. There was another attempt to amend the 2010 Electoral Act in 2018, but the President, Muhammadu Buhari on four different occasions refused to assent to the Bills. INEC then had no choice, but to fall back on the 2010 Electoral Act for the conduct of the 2019 General Election. However, it is important to state that, the 8th National Assembly was able to successfully alter the 1999 Constitution for the fourth time. Among other election related amendments of 2018, was the Not-Too-Young-to-Run law, law giving INEC power to deregister political parties, law extending time to conduct run-off Presidential elections from seven to 21 days.
Current Attempt to Amend the Electoral Act 2010
Given the 2018 failed attempt to amend the Electoral Act 2010, the 9th National Assembly in 2019, inaugurated a joint Committee on electoral reform made up of Senate Committee on INEC headed by Senator Kabir Gaya, and House of Representatives Committee on Electoral Matters, headed by Hon. Aisha Dukku. There was also a technical Committee made up of the NASS Committee on Electoral Reform, representative of INEC and representative of Office of Attorney-General, while the Policy and Legal Advocacy Centre provided technical support to the Committee. It is worth mentioning that the 9th National Assembly promised three times on when they would pass the electoral amendment Bill, and thrice they failed. They first pledged to pass it in December 2020, they failed; they shifted to first quarter of 2021 and also failed to deliver; they then promised to pass the Bill before the end of the second quarter of 2021, they equally did not keep their promise.
Meanwhile, I have it on good authority, that the report of the joint Committee on electoral reform was ready since March 2021. However, the Bill was not passed until Thursday, July 15 in the Senate, while the House of Representatives passed their own version on Friday, July 16, 2021.
The controversial Clause 52(2) of the Electoral Act Amendment Bill,
despite the promise of the 9th National Assembly to pass the electoral reform Bill that Nigerians will be proud of, many compatriots felt let down given the proviso inserted in Section 52(2) of the Bill passed by the Senate, which says that INEC must get clearance from the Nigeria Communication Commission (NCC), which must also be approved by the National Assembly for electronic transmission of election results. This is a landmine. A booby-trap. It is unconstitutional, ultra vires, null and void.
My view is very much in consonance with that expressed by the Governor of Sokoto State, Aminu Tambuwal, who is a former Speaker of House of Representatives, and also a Lawyer. He said in a statement: “For the avoidance of doubt, Section 78 of the Constitution provides that ‘The Registration of voters and the Conduct of elections shall be Subject to the Direction and Supervision of Independent National Electoral Commission’. “In the Third Schedule, Part 1, F, S.15: INEC has power to Organise, Undertake and Supervise all elections. 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 of results are critical parts of the Conduct, Supervision, Undertaking and Organisation of elections in Nigeria. Of course, NASS 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’s decision to subject INEC’s constitutional power to conduct elections to NCC, is consequently, patently VOID, unconstitutional and unlawful.”
It beggars belief why the Senate also wants INEC to come back to it for final approval, after getting clearance for electronic transmission of results from NCC. It is noteworthy, that members of Parliament are Politicians who will be standing for elections that INEC will be conducting. Indeed, what the Senate has tried to do is self-serving, and for their personal aggrandisement. I am of the considered view that, the Senate should have passed the Bill the way House of Representatives did.
Recall that the House passed the controversial Section 52(2) of the Bill last Friday, July 16 by allowing INEC to determine when, where and how voting and transmission of results will be done. It stipulates thus: “Voting at an election and transmission of results under this Bill, shall be in accordance with the procedure determined by the Commission.”
Conspiracy Theories and Questions
The action of the Nigerian Senate, and by extension, the National Assembly on the Electoral Bill 2021, smacks of mischief and deliberate orchestration of confusion. The question is being asked, as to why the National Assembly did not keep to its earlier promise of passing the Bill latest by the first or second quarter of 2021? Why did the Federal lawmakers wait till the last day on which they would proceed on their annual two months’ vacation, before passing the Bill? Why did the two chambers not pass the same version as agreed on, at the technical Committee level? Which version of the two chambers will prevail when the Conference Committee is constituted to harmonise their positions on the two versions? Will the President sign the Bill, if the Senate’s version is presented to him?
The truth is that, what played out in the National Assembly on the Electoral Bill is a well-rehearsed drama, meant to frustrate any electoral amendment ahead of 2023 General Election. The scenario that is likely to play out is that, having passed this Bill with the controversial Section 52(2), the Conference Committee may not be constituted until NASS resumes from vacation on September 14, 2021.
By that time, the President will be ready to present Appropriation Bill 2022 which will take the time of the Federal lawmakers, as they will want to pass it on time for the President to sign before December 31, 2021, since we are now back to January to December budget cycle. Even if they squeeze time to pass the harmonised version before the end of the year, the President may not sign.
Recall that in 2018, after NASS passed the Electoral Bill and sent it to President Buhari in February of that year, the President on March 3, 2018 vetoed the Bill, citing three grounds: The first being that the amendment to the sequence of the elections in Section 25 of the Principal Act may infringe on the constitutionally guaranteed discretion of INEC to organise, undertake and supervise all elections in Section 15(a) of the Third Schedule of the Constitution; second, that the amendment to Section 138 of the Principal Act to delete two crucial grounds upon which an election may be challenged by candidates, unduly limits the rights of candidates in elections to a free and fair electoral review process; third, that the amendment to Section 152 (3)-(5) of the Principal Act may raise constitutional issues, over the competence of the National Assembly to legislate over Local Government elections.
As eloquently stated by the Governor of Sokoto State, Aminu Bello Tambuwal, asking INEC to get clearance from NCC and NASS before it can deploy electronic transmission of result is Mala Fide and unconstitutional, as it is against the provision of Section 78 of the Constitution. It can be recalled that, in 1979 in the Unongu v Aper Aku case which had to do with a provision of the Electoral Act 1978, which sought to fix time frames for the conduct of elections by the defunct FEDECO, it was held by the Supreme Court, that an electoral law cannot seek to prescribe to FEDECO how it could go about a mandate given to it by the Constitution. Since then, that has been the position of the law. This is the more reason that I have confidence that the President will not sign the Electoral Bill 2021, if the version passed by the Senate were to be the version sent to him for assent. Should this be the case, we are then back to the 2018 situation where the President refused to assent to the Electoral Bill on four different occasions.
Conclusion
Nigerians were looking forward, to a more transparent and accountable 2023 election. However, with what just played out at the National Assembly last week on the Electoral Bill, many citizens are likely to be disenchanted with the electoral process and refuse to register to vote, and even if they did register, they may not come out to vote or even participate in the entire electoral process. Many Nigerian youths are of the opinion that electronic balloting and electronic transmission of results hold the key to solving the opaque and fraudulent collation process. Unfortunately, they may have to wait for a longer time, before that dream is realised.
Jide Ojo, Columnist, TV Show Host, Author, Development Consultant and Public Affairs Analyst
