A defining moment for the 9th Assembly

The 2023 general election is still several months away. But, the need to put in place a law that will guide the conduct of the election is one thing that Nigerians have looked forward to with lots of zeal. This is so considering the fact that the 2015 Electoral Act had to be used for the conduct of the 2019 general elections when the Electoral Act could not be amended as a result of the refusal of President Muhammadu Buhari to sign the law as passed. So, when news filtered in about the provisions contained or not contained in the document being considered by the National Assembly, Nigerians sat on their edge waiting anxiously for the document. TONY AKOWE and SANNI ONOGU examine the new Electoral Act bill as passed by both chambers of the National Assembly and the controversy that followed

The 2019 general election was conducted with the 2010 Electoral Act as a result of the refusal of President Muhammadu Buhari to sign the amendment to the Electoral Act. One of the contentious issues in the 2019 bill was the electronic transmission of election results. So, when the National Assembly begun the amendment to the law to put in place an Electoral Act that will guide the conduct of the 2023 elections, electronic transmission of results came to the front burner.

With the insistence of the Independent National Electoral Commission (INEC) that it has the capacity to transmit election results electronically, not many Nigerians expect otherwise. However, the National Assembly, in a leaked document, rejected electronic transmission. There were protests by Nigerians who felt that the lawmakers were doing the wrong thing. But, members of the National Assembly disowned the document. The Senate president even told his colleagues that he received over 900 messages in one day on the issue. As if deliberately, both chambers of the National Assembly decided to lay and consider the report on the last legislative day before their 2021 annual vacation.

However, it has been a flurry of denials and explanations since the Senate and the House of Representatives passed the Bill. While opposition lawmakers (PDP) staged a walkout during the consideration of the bill by the house, the majority of PDP lawmakers led by the Minority Leader Enyinnaya Abaribe succeeded in dividing the Senate for the first time in the life of the 9th Assembly. Out of the 80 Senators at the session, 52 made up 50 APC and two PDP lawmakers voted for electronic transmission with a condition that INEC must approach the Nigerian Communications Commission (NCC) to get a clearance which must be approved by the National Assembly to do so. The conditionality attached to the clause made Nigerians to believe that APC lawmakers voted against electronic transmission for a reason. But APC senators have continued to insist that they approved the proviso to ensure that Nigerians living in areas where there is no internet network coverage are not disenfranchised during elections. The House of Representatives, on the other hand, voted to allow INEC the discretion to decide what mode to use to transmit results. What this means is that the commission was free to use electronic transmission where possible and use manual where electronic transmission is not possible.

 

Why Senate is foot-dragging:

While the Senate position is contained in Section 52 (3), the house position is contained in Section 52(2). Justifying the position of the Senate, its President, Ahmad Lawan said: “When the majority of senators voted against immediate application or deployment of electronic transmission from the polling units, to the ward, to the local governments, states and federal, they didn’t say they do not believe in electronic transmission (of election results). All of us in the Senate, 109 of us, believe that at one point, our electoral process must deploy electronic transmission so that it eases and enhances the electoral process and give it more credibility and integrity. But when you have not reached that stage where you could deploy the electronic transmission from every part of the country, then you have to be very careful. No matter what anybody may say, you cannot have about 50 per cent of Nigerian voters not participating or not getting their votes counted in elections and say it doesn’t matter, that we have to start the electronic transmission. We know the evils of not transmitting results electronically.

“But, compare the evils of electronically transmitting just half of the electoral votes from Nigerians and say you have elected a president with 50 per cent only. Others have voted but their results or their votes could not be electronically transmitted. This is disenfranchising Nigerians and we are not going to support this kind of thing because essentially, we are supposed to be fair to every part of Nigeria and when we voted, every part of Nigeria voted for and against (the amendment). What I mean here is that you have senators from the northern part of Nigeria who voted for electronic transmission.”

Like in the existing act, Section 52(1) says: “Voting at an election under this bill shall be by open secret ballot.” But efforts by the Speaker of the House of Representatives, Femi Gbajabiamila to cause an amendment to the provision to make for open ballot alone failed. Gbajabiamila had told his colleagues that the freest election in Nigeria’s electoral history was the election conducted through the open ballot system. He argued that the open secret ballot system was prone to manipulation.

 

Most controversial provision:

However, Section 52(2) of the bill became the most controversial provision  during the consideration of the bill. Before the report was laid for consideration, the news had gone viral that electronic transmission of results had been removed from the law. The lawmakers denied the document that went viral. However, the provision as recommended by the House Committee on Electoral Matters states that “voting at an election and transmission of result under this bill shall be in accordance with the procedure determined by the commission”.

But, both in the Senate and the House of Representatives, the provision for electronic transmission became very contentious, with opposition lawmakers insisting on it alone. While the Senate eventually voted to reject the recommendation, but make provision for the Nigeria Communication Commission (NCC) to be involved in the process of determining transmission of result, the house, after two days of contentious and rancorous deliberation opted to allow INEC to decide the mode of transmitting election result at any given time. The Senate gave a condition for electronic transmission. It subjected INEC’s use of electronic transmission to clearance from NCC to be approved by the National Assembly.

While an amendment to the section by Deputy Minority Leader, Toby Okechukwu was rejected through a voice vote, which was contested by the lawmakers, another amendment by James Faleke that transmission of results should be done both manually and electronically was also rejected. After two days of contentions, the section was passed after some members of the Minority Caucus walked out of the chamber after the Presiding Officer failed to divide the House as demanded by some members. It was obvious that even though some members of the All Progressives Congress (APC) wanted electronic transmission, they were afraid to openly identify with the clamour. But, the minority caucus played into the hands of the majority when they walked out on realising that calling for the rescission of Section 52 from the previous day would mean admitting that they had already agreed to it. The section sailed through as the House tried to play safe by ceding the decision to INEC.

 

Response to popular desire:

However, Senator Michael Opeyemi struggled to put records straight and disabuse the minds of Nigerians concerning reports that APC senators voted against electronic transmission of election results by INEC. The Ekiti lawmaker said: “In order that no one who knows me and what I have always stood for would be in doubt as to where I stand, I wish to place on record that I am fully in support of the passage of Section 52(3) of the proposed Electoral Act (Amendment) Bill, which seeks to give the Independent National Electoral Commission (INEC) powers to transmit election results electronically. Let it be known also that I am specifically a member of the Senate Committee on INEC, which, in addition to electronic voting contained in Section 52 (2), recommended and ensured the inclusion of this electronic transmission clause 52 (3) in our report submitted to the Senate for deliberation and passage. The said report, known as the Electoral Act (Amendment) Bill carries both my name and signature. We did this in response to the popular desire of a cross-section of Nigerians, including stakeholders who participated in our public hearing, as well as in recognition of and compliance with global best-practice standards in electoral law and procedure.

“The distinguished senator representing Niger East Senatorial District, Senator Aliyu Sabi Abdullahi, expressed concern that the words ‘electronic transmission of results where and when practicable’, as used in our report, was rather nebulous and could lead to arbitrary intervention and implementation. He also opined that the Nigerian Communication Commission (NCC), being the regulatory institution in charge of communication infrastructure across the country, should be made to work with INEC in determining the ‘where and when practicable’ desire in our report to ensure that voters in rural communities without access to communication network are not disenfranchised or the results of their elections compromised, relying on a report that only about 43 per cent of the Nigerian rural communities so far have access to communication network service.”

The Nation findings reveal that the report was initially to be laid before the house on February 23, 2021 but was stood down without any reason. When asked why the laying of the document was deferred  considering that Nigerians were anxiously waiting for it, house spokesman, Benjamin Kalu told reporters that the leadership only wanted the report laid and considered on a day when many members will be present because of the sensitive nature of the Bill.

 

Novel provisions:

A close study of the new Electoral Act (amendment) Bill showed that there are a plethora of novel provisions meant to deepen and strengthen the electoral process. The bill as passed by both chambers created a special fund for the commission known as Independent National Electoral Commission where funds from the Federal Government for its functions, interests, aid, grants or any money accruing to the commission will be paid into. Also, funds going to the commission for the conduct of the general election is expected to be released to the commission not later than one year to the date of the election.

However, like in the existing law, the annual estimate (budget) of the commission is to be submitted to the Ministry of Finance not later than August 31 every year and not the National Assembly like in the case of other agencies. The implication is that the National Assembly may not be saddled with the responsibility of appropriating funds for the operation of the commission probably because it draws its funds from the first line charge under the 1999 Constitution (as amended).

A close study of the bill showed a lot of similarities with the copy that has been making the round which the parliament had disowned. For example, Section 8(5) as contained in both copies stopped members of political parties from securing appointment with the commission in any capacity without disclosing their membership of the party. Anyone who is found guilty of such an offence will be liable on conviction to a fine of N5million.

Also contained in both documents is the fact that voter registration, update and the revision will stop 90 days to any election that will be covered by the law, while the Commission is to make a list of registered voters in a year available to political parties within the first 60 days of the year, while the display of voters’ register must be done 90 days before an election. Notice of election is to be published 360 days before the date of an election and to be published in each constituency where the election is to be held. To be in possession of more than one voter’s card is now an offence under the law and will attract a fine of N100,000.

Display of voters register shall be 90 days before an election. The old law did not specify the number of days before an election when the voters’ register was to be displayed, but stipulated 14 days as a maximum number of days the display will last.

By the provision of the current bill as passed by both chambers, vote-buying and selling is now a crime just as being found with a voter’s card that is not in the name of the bearer will now be a crime. The law says that to sell or offer to sell voter cards “whether in your name or not in your name; or offer to buy by yourself or on behalf of another person are a crime and any individual involved in that action is liable to a fine of N2million and an entity involved will be liable to a fine of N5 million”.

 

More powers for INEC:

In addition, the inclusion of fake names in the voter register is to attract a fine of N500,000. Also, forcing anyone, under duress or threat, or inducing anyone not to register or vote or hinder another from registering as a voter attracts a fine of N500,000 upon conviction.

The bill also makes provision for situations where elections could not be conducted in certain areas as a result of any form of emergency. It provides that in case of an emergency that will affect the conduct of the election, INEC must make sure that those displaced are not disenfranchised. It gave the commission the power to postpone an election when there is likely to be a breach of peace in any area and fix another date for the conduct of such an election in such an area. It also allowed INEC to declare results if it is satisfied that the outcome of the election in an area where an election is suspended will not alter the general outcome.

Security agents and other officials such as electoral officers, presiding officers and returning officers involved in the conduct of an election are now to swear an oath of loyalty and neutrality not to accept any form of bribe or gratification.  Violators of such oath of loyalty and neutrality are to be charged with dereliction of duty and punished in accordance with relevant laws of the country.

For political parties, the bill declined agitations by parties to be granted the permission to substitute candidates in a by-election. The parties are only allowed to substitute their candidate for bye-elections if a candidate dies. “The parties are not to substitute candidates for a bye-election except in the case of death while the parties are expected to submit a list of their candidates for the general election to INEC not less than 180 days to election accompanied with an affidavit that he has fulfilled all requirements for the election as against 60 days contained in the 2010 Electoral Act which has now been amended. In addition, “political parties that present candidate for election who does not meet the qualification commits an offence and is liable to a fine of N10 million” as against N500,000 contained in the old law. It also prescribes that only registered voters can nominate a candidate for election, while candidates nominated for an election can only withdraw from such election not later than 90 days before the election.

 

Loopholes plugged:

In the case of death of a candidate, the new bill made adequate provision to take care of such situation which was not captured in previous laws. Section 36 of the law states that: “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 (stop) 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”. Subsection 3 states that “if after the commencement of polls and before the announcement of the final result and declaration of a winner, a candidate dies, the commission shall, being satisfied of the fact of the death, suspend the election for a period not exceeding 21 days. In the case of election into a legislative house, the election shall start afresh and 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”.

Conscious of the 2015 experience in Kogi State after the death of Prince Abubakar Audu, the lawmakers imputed into the law, a proviso that allows the running mate to continue with the election. It said: “in the case of presidential or governorship election, the running mate will continue with the election and nominate a new running mate.”

In addition, the bill provides that the commission shall ensure that persons with disabilities, special needs and vulnerable persons are assisted at the polling units through the provision of suitable means of communication such as Braille, large embossed print and electronic devices among others. Besides, the punishment prescribed for vote-buying and selling, the law makes provision for punishment for electoral officers involved in the collation of false results. The bill stipulates in Section 64 (9) that “a returning officer/collation officer who intentionally collates or announce false results is liable to a fine of N5 million or three years in jail or both on conviction”.

Similarly, any electoral officer who endorsed an election conducted without the prescribed form shall be liable to a fine of N200,000. While allowing for registration of new political parties for political associations that have met the conditions set out in the act and the constitution, it restricted such registration to a period of 12 months before the general election as against six months in the existing Act. Such parties that meet the requirements are to be notified by the commission within 60 days, while they are to be notified within 90 days if their application is rejected and the reason for such rejection. It also states that any association that has met the requirement for registration, but was not registered by the commission and was not informed of its rejection is to be deemed registered and can carry on as a political party. However, false information by such association seeking to be registered will be liable to a fine of N5million, while the individual executive members of such association will be liable to a fine of N3million or two years in prison.

 

Pre-election matters:

Also, any violation of Section 227 of the constitution will attract N5 million for the first time; N7 million for subsequent offences and N500,000 every day the offence continues. Similarly, aiding and abetting of a party in contravention of Section 227 of the constitution shall be liable to a fine of N5 million or five years in prison or both. Parties wishing to merge are not to give a nine-month notice as against the former 90 days, of their intention to merge and such notice is expected to be signed by the national chairman, secretary and treasurer of the merging parties.

For the conduct of party primaries, the report by both chambers rejected the proposal by INEC to limit the amount to be collected by the political parties as nomination fees. It, however, said parties are to conduct either direct or indirect primaries for the nomination of their candidates for election. It also set conditions to be met for such mode to be valid. It states that “a political party that adopts the direct primaries procedure shall ensure that all aspirants are given equal opportunity of being voted for by members of the party. A political party that adopts the system of indirect primaries for the choice of its candidate shall adopt the procedure outlined in the bill. However, the bill also provides that “notwithstanding the provisions of this bill or rules of a political party, an aspirant who complains that any of the provisions of this bill and the guidelines of his political party has not been complied with during the selection or nomination of a candidate of the political party for election may apply for redress to the Federal High Court of State or FCT within whose territorial jurisdiction the election was conducted”.

However, the new law strips the courts of “power to stop the conduct of party primaries or general election or the processes thereof under this bill pending the determination of the suit”. Also, political appointees are not allowed to function as automatic voting delegates at the convention or congresses for nomination of candidates “except if he/she is an officer of a political party,” while any party holding funds outside Nigeria in contravention of Section 225 of the Constitution is deemed to have committed an offence and liable to a fine of N5 million for the retained fund or assets. The law also limits to N50million, the amount of money or assets that can be contributed by individuals or groups to funding a political party and any political party that contravene the provision which limits donation shall pay a fine of N10 million in addition to forfeiting the amount donated, while the individual will be subjected to a fine of five times the amount donated in excess of the limit placed by the commission.

 

Code of conduct for parties:

Worried by huge expenses on elections, the bill also placed a limit presidential election spending and pegged it at a maximum of N5billion, governorship election at N1billion while senatorial and House of Representatives election expenses was fixed at N100million and N70million respectively.  State Assembly candidates, chairmanship candidates and councillorship candidates are not left out as they are not allowed to spend above N30 million and N5 million respectively. Contravention of this provision is expected to attract a fine of one per cent of the amount permitted as the limit of campaign expenditure or imprisonment for a term not more than 12 months or both. It also states that “an accountant who falsifies, or conspires or aids a candidate to forge or falsify a document relating to his expenditure at an election or receipt or donation for the election or in any way aids and abets the contravention of the provisions of this section commits an offence and is liable on conviction to a fine of N3million or imprisonment for a term of three years or both”.

It stopped parties from keeping what is regarded as anonymous money, while making it compulsory that the names and addresses of persons or entities who contribute any money or asset in excess of N50million is sent to the commission.  The use of abusive language directly or indirectly likely to injure religious, ethnic, tribal or sectional feelings is now prohibited even at campaign grounds.