Electoral Act 2022- A New Path Towards Credible Elections in Nigeria and Matters Arising.

ABSTRACT

The foundation of credible elections is rooted in strong institutions emboldened by well drafted legislations, sufficient political will, quality voter’s education and discipline. Over the years, there has been clamor for our electoral act to be amended all in the bid to give Nigerians more control over the process of choosing who occupies what office and when. As is usually the case, politicians develop mechanisms, adopt new strategies to maneuver the progress that our electoral reforms intend to achieve. After every election, our draftsmen discover albeit too late, the loopholes and Lacunas that have been explored by key players in the system to shortchange the will of the people. Hence, reforms and more reforms becomes the only way to arrest these shortfalls and to make the next election truly credible with an attempt to improve on what has been and probably Introduce new mechanisms all geared towards ensuring that will of the people Prevail.

The Electoral Act 2022, which has been assented to by His Excellency President Muhammadu Buhari remains one of the foremost highlights of his administration. After many months of the delays, back and forth, political consultation, debates and controversies, The Act was finally assented to on the 25th day of February 2022. However There was a caveat by his Excellency Muhammadu Buhari that section 82 (12) of The Electoral Act be reconsidered as in his opinion, it deprives public office holders of constitutional rights to vote and voted for as guaranteed by the Constitution of the Federal Republic of Nigeria. This presentation is an attempt to analyze all sides of the argument, to highlight relevant changes that have been made, to review the Judgment that followed the new Act and to evaluate the existing status quo. It shall seek to consider viz:

• The relevance of election in every polity.
• Indicators of free and fair election.
• The role of INEC in delivering credible elections.
• Pitfalls of election in Nigeria.
• The necessary reforms as highlighted by the Electoral Act of 2022.
• The controversy surrounding the new electoral Act of 2022 and Analysis of the litigation involving the Electoral Act of 2022.
• A review of the decision of the court in respect of Electoral Act 2022
• 2023 political theatrics: perspective for all Nigerians.
• Conclusions and recommendations.

The relevance of election in every polity.

Since the era of the leviathans, when the society decided to surrender its rights and put an end to Hobbesian states of nature and in essence, recognizing the relevance of a structured government. Elections have become an important feature of democratic Governments around the world. Conceding that Democracy is the government of the People by the people for the people, the people stands at the heart of every democratic arrangement. The people choose who will represent their overall interest and become their mouthpiece and spokesperson when issues of national concerns are discussed. Thus, the legitimacy enjoyed by every representative government stems from the will freely given and vested on them by the people to represent them and their interests. Unlike in military dictatorship, elections can be categorized as the litmus paper of democracy and a credible, free and election is the yardstick of legitimate government all over the world.

Indicators of free fair and credible election.

To attain a free, fair and credible election, every Democratic government is saddled with the responsibility of creating an atmosphere where people can freely exercise their franchise without fear or favor. This starts from the making of good electoral laws by the legislature, which are devoid of religious, ethnic, political jingoism, nepotism, sentiment, bias and Prejudice. The laws on Election, should be handled by Statesmen who have the interest of the nation at heart and not bigots who will make laws that cannot reflect The will of the people or produce the end result, which is a free fair and credible election.
The second arm is the strengthening of electoral institutions, including INEC and other agencies saddled with the task of delivering credible elections in Nigeria. These include – the security agencies, Media houses, Election observers, Non Governmental Organisations, logistics company and other ancillary groups, like Transporters, the Corp members Etc.

One of the primary indicators or prerequisite of a free fair and credible election is the independence of INEC. without sufficient Independence both structurally, politically and FINANCIALLY, It will be almost impossible to deliver a free fair and credible election in Nigeria. The reason being that they will be subservient to only that party or group that it pays allegiance to, that influences its day-to-day activities, fund its projects by any measure, appoints its leadership or controls its operational modalities.

There has been persistent clamor from various angles calling for total Independence of the commission as a self-funding Institution moreso, that the leadership of the commission should not be appointed by the president. The argument is to reduce the influence that they may have on the overall conduct and outcome of the election.

Another indicator of a free, fair and credible election is one where every vote counts. With the introduction of Technology, it is expected that cognizance will be given to every vote cast and that no one is deprived of their voting rights based on their sex, race tribe, religion or condition of their birth. Rather, attempts should be made to include erstwhile excluded categories of persons, like the people in Diaspora, inmates and disabled people in the system and ensure that they exercise their franchise without let or hinder.

Furthermore, security of lives and property during the period of electioneering, before, during and after voting is a major indicator of a free, fair and credible election. If people are under the fear of harm, they will barely want to exercise their franchise. The activities of criminal elements, touts and thugs recruited by political players who go about causing Mayhem during election is one of the major discouragement to voters and the chief reason for low voter turnout in many election. The deployment of security agencies to polling unit should focus primarily on protecting Voters, the election materials and paraphernalia rather than intimidating voters to vote in a particular way or manner.

The process of transmitting results from polling units to the collation centers are very big part of the process, many things usually go wrong at this end and more often than not, is where the will of the people are shortchanged. The introduction of card readers, E-transmission of results, recognition of use server are all geared towards addressing this issue. The fact that election results are doctored, rewritten after voting and documentation has been done, really cast a doubt as to The credibility of elections in Nigeria.

The role of INEC in delivering free, fair and credible elections.

Having been vested with the sole mandate of conducting elections in Nigeria, INEC should stand up to their responsibilities and should recognize the fact that they hold a very critical position in building our democracy. As an institution of government, they are empowered by the Law to mobilize Manpower, assemble resources and develop strategies, juxtapose this together to deliver free, fair and credible elections to Nigerians who have over the years, looked up to them with the hope of delivering on their mandate.

From the federal to the state level, INEC staff should maintain a high level of diligence and commitment to duty. They should not be susceptible to economic and other ancilliary gains from political players to subvert the will of the people. Persons with high level of integrity and not subject to external influence should man the leadership of INEC at every level. Otherwise, it will only be a castle in the air to have a free, fair and credible elections in Nigeria.

Pitfalls of elections in Nigeria.
• Lack of proper funding and mismanagement of funds is one of the pitfalls of elections in Nigeria.
• Insecurity and violence before, during, and after elections in Nigeria which is indeed condemnable has almost become a feature of our elections
• Bribery and corruption by political players including the voters and the voted have become a stumbling block to getting it right in Nigeria. Those seised with the responsibility of conducting elections in Nigeria should rid itself of corrupt elements who frustrates the will of Nigerians to produce candidates who will represent their interest and only the best interest of all Nigerians.
• Logistic failure and lack of manpower to execute the election process has been a recurring issue and should be handled as a matter of urgency.
• Technical and structural defect in the collation and transmission of election results should be adequately resolved and we must implement the sections of the new electoral act that had provided for electronic transmission of Election results.

Reforms introduced by the Electoral Act 2022.

The new Act against the backdrop of the above listed pitfalls have now made critical provisions aimed at addressing them. Below are 10 key provisions of the new Electoral Act as highlighted by Clifford Ndujihe viz:

1. Section 29(1) stipulates that parties must conduct primaries and submit their list of candidates at least 180 days before the general elections.

2. Section 65 states that INEC can review results declared under duress.

3. Section 3(3) states that funds for general elections must be released at least one year before the election.

4. Section 51 provides that the total number of accredited voters will become a factor in determining over-voting at election tribunals.

5. Section 54(2) makes provisions for people with disabilities and special needs.

6. Section 47 gives legislative backing for smart card readers and any other voter accreditation technology that the Independent National Electoral Commission (INEC) deploys.

7. Section 34 gives political parties power to conduct a primary election to replace a candidate who died during an election.

8. Section 50 gives INEC the legal backing for electronic transmission of election results.

9. Section 94 allows for early commencement of the campaign season. By this provision, the campaign season will now start 150 days to the election day and end 24 hours before the election.

10. Section 84 (12) stipulates that anyone holding a political office – ministers, commissioners, special advisers, and others – must relinquish the position before they can be eligible to participate in the electoral process either as a candidate or as a delegate

The controversy surrounding the new electoral Act of 2022 and Analysis of the litigation involving the Electoral Act of 2022.

It’s no longer news that the Section 84 (12) of the Electoral Act of 2022 has generated intense debates. The President via a letter sent to the National Assembly stated “I write to draw your kind attention to some salient issues contained in the act and to seek your immediate legislative action thereon. I have carefully studied the recently assented electoral act amendment 2022 and must admit that there are positive provisions that could revolutionalise election process in Nigeria, particularly through the introduction of technology that will guarantee the constitutional rights of citizens to vote effectively.”

He, however, added that the practical application of section 84(12) “subjects serving political office holders to inhibitions referred to under Section 40 and 42 of the 1999 Constitution, as it is imperative to note that the only constitutional expectation from serving political office holders that qualify by extension as public officers within the context of the constitution is resignation, withdrawal or retirement, at least 30 days before the date of the election, as provided in different Sections of the 1999 Constitution.”

Thus, he applied to the National Assembly to review the said section. Heated arguments have been raised for and against the provision and a matter was instituted at the Federal High Court in Umuahia for the determination of the matter.

As is with every issue of National concern, many have attributed the rejection of the said section to some political reasons and have gone ahead to shortlist persons who are billed to benefit from the deletion of the as section. While there is no doubt as to the political influence that underscores the rejection, regards must be had to the provisions of the Constitution including sections 107 (1) (f) , 147 ( 1) (g) and 182 (1) ( g) of the Constitution of the Federal Republic of Nigeria, 1999 ( as amended) that clearly stipulates resignation to take place 30 days before elections.

The implication of Section 82(12) of the Amended Electoral Act is that it will deprive a great number of political office holders or appointees of their right to political participation where they choose to keep their role. Take for instance, where party primaries are to hold 6 (six) Months before election, they are expected to relinquish their position before being part of the process. It is our view that retaining section 82(12) of the Electoral Act 2022 will create unnecessary administrative vacuum of national proportion which will serve no fruitful purpose.

We contend also that the way and manner the judgment was procured casts serious doubt on whether due process was followed. Be that as it may, the decision of the court on the issue is sacrosanct and it remains to be seen, the argument of persons who seek to retain the contested section and identify the merits there. Until appealed, the section will have no force of law.

A review of the decision of the court in respect of Electoral Act 2022. 

Delivering judgement on the suit challenging the constitutionality of the provision, the judge, Evelyn Anyadike, held that the section was “unconstitutional, invalid, illegal, null, void and of no effect whatsoever.” Adjudging the provision to be in conflict with the Nigerian constitution, the judge held that it “ought to be struck down as it cannot stand when it is in violation of the clear provisions of the Constitution.” Her Lordship ordered the Attorney General of the Federation to “forthwith delete the said Subsection 12 of Section 84 from the body of the Electoral Act, 2022”.

Her Lordship held that the Nigerian constitution stipulated that appointees of government seeking to contest elections must resign at least 30 days to the date of the election. Thus any other law mandating such appointees to resign or leave office at any time before that “is unconstitutional, invalid, illegal null and void, “to the extent of its inconsistency to the clear provisions of the Constitution”. The judge, in the judgement on the suit marked, FHC/UM/CS/26/2022, agreed with the submissions of the plaintiffs that Section 84(12) of the Electoral Act was inconsistent with the rights of Nigerian citizens.

In the judgment, the judge granted the reliefs sought as follows: “I declare that Section 84(12) of the Electoral Act,2022 cannot validly and constitutionally limit, remove, abrogate. disenfranchise, disqualify and oust the constitutional right or eligibility of any political appointee, political or public office holder to vote or be voted for at any convention or congress of any political party for the purposes of nomination of such person or candidate for any election where such person has ‘resigned, withdrawn, or retired’ from the said political or public office, at least 30 days before the date of the election.”; “ I declare that the provisions of Section 84(12) of the Electoral Act, 2022 which limits, removes, abrogates, disenfranchises, disqualifies, and oust the constitutional right and eligibility of any political appointee, political or public office holder to vote or be voted for at any convention or congress of any political party for the purposes of nomination of such person or candidate for any election, where such person has ‘resigned, withdrawn or retired’ from the said political or public office, at least 30 days before the election, is grossly ultra vires and inconsistent with Section (6) (6) ( a & b) , 66 (1) (f); 107 (1) (f) , 147 ( 1) (g) and 182 (1) ( g) of the Constitution of the Federal Republic of Nigeria, 1999 ( as amended) and therefore unconstitutional, invalid, illegal, null and void and of no effect whatsoever”; “I hereby nullify and set aside Section 84 (12) of the Electoral Act, 2022, for being unconstitutional, invalid, null and void to the extent of its inconsistency with Sections 66 (1) (f); 107 (1) (f) , 147 ( 1) (g), and 182 (1) ( g) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended )”; and “I hereby order the Defendant ( The AGF) to delete the provision of Section 84(12) from the Electoral Act, 2022 with immediate effect.”

2023 political Theatrics: Perspectives for all Nigerians. 

2023 Elections will no doubt be one of the most critical in our national polity. The palpable fear and chaos that characterize elections in Nigeria will resurface once more. Unfortunately, the seven years of President Muhammad Buhari Presidency have brought to full glare, the faultlines that have beleaguered our political system which is further emboldened by religious and ethnic bigotry. The issue of National cohesion, Unity and harmony has remained a mirage. This present administration have been caught in the quagmire of public discontentment for repeatedly reinforcing ethnic and tribal sentiments in total disregard to federal character. The calls for succession has become louder than ever, the free fall of our economy and rising poverty rate will affect voter behavior come 2023 that is if Nigerians have learnt from present experience.

Africa and Nigeria in particular has become bad examples of Representative Democracy. Political offices have become highly incentivized in the wrong way with alot of vices open for venture. Due to the obvious lacunas in our electoral system, credible persons with outstanding records who do not wish to breach common rules of civility have stayed clear from politics and this affects the quality of leadership that we continue to get and have in Nigeria. Electoral reforms is therefore a veritable tool to arrest the menace. The Innovations brought to bear by the New Electoral Act must be explored by relevant stakeholders to ensure that we have a 2023 Elections that will produce nothing but the will of the Nigerian people. As part of what will become President Muhammad Buhari’s Legacy, the political will to enforce this Act to the later must be seen to be sufficiently available and not to be compromised. This will give room for political sanity, limit the incidences of abuse and protect the integrity of the process.

The Economy, persistent security challenges, disenchanted populace thorn between ethnic loyalty and national unity will shape the entire landscape of 2023 election. The election will largely be dependent on the choice of presidential candidates presented by the leading parties APC and PDP and of course the FORMULAR that produces them. As usual, we expect waves of defections from one party to another all in the bid to secure political power. And because of the high rate of poverty in Nigeria, stomach infrastructure and empowerment will Commence soon. Cheap political stunts will soon become the order of the day as candidates will begin the usual struggle to outperform their opponents in sanctimonious display of affection, care and love to an entire population that they have ignored for the past 36 months.

Conclusion/Recommendations

If we must gain optimally from the Electoral Act of 2022, we must introduce a renewed interest to get things right. The issue of election Violence will Mar any gains that the Act may have set out to offer. Again, The Election observers must move away from brown envelope this time and ensure that in every nook and cranny, that the letters of the Act is followed to the last inch. The INEC officials, Adhoc staff and other relevant agencies involved In the process should and must avoid external influence employed toward violating electoral rules for personal or party gains. They must remain apolitical and insist on upholding the will of the Nigerian people. The use of thugs, touts to intimidate voters should not surface in this dispensation. Nigeria should really have gone above that level where outcomes of elections are determined by bullets Instead of ballots. The will of the electorates should prevail though heavens fall. That way, we will have the best hands on the job who will move the country away from the edges of collapse due to many years of maladministration, misappropriation of funds and lack of focus, plan and strategic leadership. Finally, every Nigerian of voting age should arm themselves with their voters card because, the die is cast.

About the Author

Njoku David Chibueze, Esq is a Legal Practitioner and the President, Legal Ideas Forum Int’l.