Controversy over 2018 Electoral Act

President Muhammadu Buhari and the National Assembly may be preparing for a showdown over the contentious 2018 Electoral Act. The president has declined assent and the legislature is threatening to override his veto. What is the way out of the faceoff? Group Political Editor EMMANUEL OLADESU examines the arguments for and against the Bill.

The 2018 Electoral Act Bill has deepened the gulf between President Muhammadu Buhari and the National Assembly. Both arms of government are building on their records of mutual suspicion and antagonism. Will the president rescind his decision to refuse assent to the bill, following pressures mounted on him by critical stakeholders, or maintain his stand to the end? Will the Senate veto the president’s decision or seek dialogue with the Presidency over the contentious issues?

The president is empowered by the 1999 Constitution to refuse assent. But, ordinarily, the power should be exercised in the national interest. President Buhari has exercised his veto power four times, to the consternation of the legislators. Also, the National Assembly is at liberty to override his veto. But, the move, although largely legal, should not be devoid of legitimacy. Will the parliament get the required two-third majority to accomplish that?

The Bill has become a major bone of contention, owing to the 2019 calculations. The controversy over the refusal of assent has polarised the country. Since President Buhari and the leadership of the National Assembly belong to rival political parties, many All Progressives Congress (APC) and Peoples Democratic Party (PDP) chieftains tend to view the logjam through partisan lenses.

The proposed amendment, according to the National Assembly, is expected to improve the conduct of elections by the Independent National Electoral Commission (INEC). While the president is not against the amendment, he has counselled that its implementation should commence after next year’s elections. Information and Culture Minister Alhaji Lai Mohammed explained that President Buhari withheld assent to avoid likely confusion that may be consequent on the timeframe for its implementation.

“I am declining assent to the Bill principally because I am concerned that passing the nee 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,” said the president.

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

Echoing his boss, President Buhari’s Senior Special Assistant on National Assembly Matters Senator Etim Enang alluded to an Economic Community of West of West African Countries (ECOWAS) protocol, which forbids constitutional amendment in member-countries six month to elections. Recalling that former President Olusegun Obasanjo ratified it, he said President Buhari is bound by it.

Rejecting the presidential veto, PDP lawmakers are threatening fire and brimstone. “We will do our best to override his assent,” said Biodun Olujimi, a senator from Ekiti Central District, who added: “This is because 70 percent of the INEC budget has to do with the funding of card readers and other equipment needed for the election.”

An APC lawmaker, Senator Kabiru Marafa, disagreed.  He chided the opposition for its jittery over the use of card readers, adding that it underscored an ulterior motive. He predicted that the move to override the president’s assent will fail. Marafa’s argument is that getting the two-third majority will be a herculean task. Besides, he expressed concern over INEC’s capability to start implementing the new provisions. In his view, the electoral agency may not be able to cope with new responsibilities and conditions imposed by the amendment. “INEC, at the moment, has a lot of issues to contend with. Why should we overburden them with new amendments that would make its work more cumbersome? Why can’t we wait till after the 2019 elections before we introduce new electoral laws?” he queried.

The legislative/executive faceoff notwithstanding, a cloud of uncertainty is not hovering over next year’s elections. The electoral agency has ruled out any legal lacuna, if the implementation of the amendment is postponed. INEC Chairman Prof. Mahmud Yakubu said the body can organise credible elections, based on the 2010 Electoral Act. His media aide, Rotimi Oyekanmi, cited time constraints, saying: “It would have been impossible, for instance, to implement 100 per cent electronic voting because of the time frame. “The commission is not bothered and will not be distracted by the hue and cry over certain issues and decisions taken by the president and the National Assembly. The commission is focused on organising the 2019 elections using the extant laws, using the laws that are valid as at today,” Yakubu stressed.

Presenting the report on the review of the bill, the Chairman of the Senate Committee on INEC, Suleiman Nazif, said the man objectives of the bill was to provide for the use of technological devises for the conduct of elections, to provide a timeline for the submission of candidates’ list, identify the criteria for substitution of candidates, and address the problems related to omission of candidates’ names and logo of political parties.

There are six critical items or issues revolving around the bill, which make it significantly different from 2010 Electoral Act. These are the formalisation of the legal basis for the use of card readers, electronic transmission of results, time-frame for submission of candidates’ list, limit of campaign expenses, cross referencing errors, electoral sequence and complaints about the time-frame for implementation.

The core proposal is the smart card readers. It is novel to the extent that it is accorded a legal backing. Although it was used by INEC in 2015 poll, the Supreme Court disputed its legal basis, pointing out that it is not in the electoral law. The card readers were used along with incident forms. But, faulting the method, former Nigeria Bar Association (NBA) President Olisa Agbakoba (SAN) recalled that it enabled non-accredited persons to vote, thereby questioning the credibility of elections.

Section 49 (1) of the 2018 Act states: “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 registered. In subsection (2), it is stated that “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.”

However, the card readers were not insulated from technical failure that often increased anxiety during voting. Thus, in anticipation of failure that may occur, subsection (3) states that “where a Smart Card Reader deployed for accreditation of voters fails to function in any unit and a fresh Smart Card Reader is not deployed, the election in that unit shall be cancelled and another election shall be scheduled within 24 hours.”

Also, Clause 14 is proposed to amend Section 49(4) of the Act that deals with the failure of a card reader. According to the proposed amendment, “where a smart card reader deployed for accreditation of voters fails to function in any polling unit and a fresh card reader is not deployed three hours before the close of the election in that unit, the election shall not hold, but be rescheduled and conducted within 24 hours thereafter, provided that where the total possible votes from all the affected card readers in the unit or units does not affect the overall result in the constituency or election concerned, the commission shall notwithstanding the fact that a fresh card reader is not deployed as stipulated, announce the final results and declare a winner.”

Votes do not count until they are counted and declared as counted. Indeed, counting of votes and forms have always generated controversy. This may be due to the limitations of the existing law. Section63(1, 2, 3 and 4) of the 2010 Act, states that “the Presiding Officer shall, after counting the votes at the polling unit, enter the votes scored by each candidate in a form to be prescribed by the Commission as the case may be.

“The form shall be signed and stamped by the Presiding Officer and counter-signed by the candidates or their polling agents where available at the polling unit.

“The Presiding Officer shall give to the Polling Agent s and the police officer where available a copy each of the completed forms after it has been duly signed as provided in Subsection 2 of this section.

“The Presiding Officer shall count and announce the result at the polling unit.”

Section 65, which deals with post-election procedure and collation of election results, also states that “after the recording of the result of the election, the Presiding Officer shall announce the result and deliver same and election materials under security to such persons as may be prescribed by the Commission.”

To many stakeholders, a major dark side of the 2010 Act is the absence of the electronic transmission of election results from polling units. Manual transmission, apart from slowing down the collation process, has not been found to be totally fraud-free as records are susceptible to manipulation between polling units and collation centres. Hailing the 2018 Act for addressing the vital omission, Agbakoba noted that “electronic transmission will remove rigging and enhance the credibility of vote count.”

But, skeptics have also expressed reservations about the proposed method. Fears are rife that the computer can still be manipulated by unscrupulous electoral officers eager to do the bidding of desperate candidates.

According to the 2010 Act, “every political party shall not later than 60 days before the date appointed for a general election under the provisions of this Act, submit to the Commission in the prescribed forms the list of the candidates the party proposes to sponsor at the election.

But, Clause 24 amends Section 87(13) of the 2010 Act, which deals with the deadline for the primary. It states that “the dates of the primaries shall not be earlier than 150 days and not later than 90 days before the date of the election to the elective offices.”

Nazif explained that the same section stipulates a specific period within which party primaries are required to be held since the unintended consequences left the electoral commission with only nine days to collate and compile lists of candidates and political parties for the various elections. “This is because the earlier Electoral Act Amendment Bill did not properly amend Sections 31, 33 and 85 of the principal Act that stipulates time for submission of lists of candidates for elections,” he added.

On the death of a candidate, Section 36(1) of the 2010 Act states: “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 or the Resident 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.”

The amendment may have been informed by the crisis arising from the death of the Kogi State APC governorship candidate for 2014 poll, Prince Abubakar Audu, whose running mate, James Faleke, was not allowed to replace him as candidate in the supplementary election and a former aspirant, Yahaya Bello, was drafted into the race.

The section is amended by inserting, after sub-section 2, new sub-sections 3, which states that “if after the commencement of polls and before the announcement of the final result and declaration of a winner, a nominated candidate dies; (a) the Commission shall be 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 continue to participate in the election, conduct a fresh primary within seven days of the death of its candidate and submit 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.”

The Bill has met a roadblock. The flexing of muscles between the presidency and the National Assembly continues. A PDP lawmaker indicated last week that the PDP caucus was reaching out to aggrieved APC lawmakers who lost the battle for re-nomination to join the resistance to the presidential action.

The APC leadership is monitoring its members, a source said. “The National Working Committee of our party will meet in few days to assess the situation and get our National Assembly caucus to speak with one voice on the Bill,” he said.