Having thrice failed to fulfill its promise of delivering an effective Electoral Act to Nigerians, the National Assembly now has days to provide the bill. IMOLEAYO OYEDEYI examines how the delay in the passage of the Act may affect upcoming elections and the Nigeria’s democracy.
Barring any last-minute change in plans by the Independent National Electoral Commission (INEC), the next general election in Nigeria will be held on Saturday, 18 February, 2023. But barely a year and some months to the all-important poll, the legal framework needed to effectively govern its conduct still begs for legislative attention at the chambers of the ninth National Assembly.
INEC had pledged to tighten loose ends and lapses observed in the conduct of the 2019 election. In doing so, it called on the lawmakers to rework the Electoral Act to empower it carry out promised reforms in election conduct. A body of civil society community has also forwarded the proposals they considered necessary to tidy the electoral process.
Some of these proposals, however, may not have the required salutary effects unless and until certain changes are made to key documents governing the conduct of elections, such as the Electoral Acts, the ground norm and the 1999 Constitution as amended.
A lot of stakeholders were hopeful that the current ninth National Assembly would make the amendment of the Electoral Act a top priority given the fate that befell it in the build up to the 2019 elections.
The stakeholders had also hoped the National Assembly would expeditiously pass the Act to enable INEC test run the fresh amendments in off-cycle governorship elections coming up in Anambra on November 6 and in Ekiti and Osun in 2022, June and July. But with the process already set in motion for the Anambra election, the opportunity of giving effect to the new law has been missed.
What’s new in the proposed amendment?
The bill, which seeks to repeal the Electoral Act 2010 and enact the Independent National Electoral Commission Act 2020 to regulate the conduct of federal, state and area council elections for related matters, was passed by the NASS on July 24 and transmitted to President Muhammadu Buhari on August 3. But the president refused to sign it on the premise that the law could jeopardise the 2019 general election.
President Muhammadu Buhari had excused his non-assenting the bill to the time it was brought for his signature. He had argued that the electoral process had already begun with the extant Act and signing a new one in the middle of the process was not good enough.
“Pursuant to section 58 (4) of Constitution of the Federal Republic of Nigeria 1999 (as amended), I am declining assent to the Electoral (Amendment) Bill principally because I am concerned that passing a new electoral bill this far into the electoral process for the 2019 general election which commenced under the 2015 Electoral Act, could create some uncertainty about the applicable legislation to govern the process. Any real or apparent change to the rules this close to the election may provide an opportunity for disruption and confusion in respect of which law governs the electoral process,” the President said in a statement he sent to NASS in 2018.
Despite generating mixed reactions with his blatant disavowal of the passed bill, Buhari would later redirect the NASS to take a fresh look at a number of clauses in the bill, especially Sections 5, 11, 18 and 36. But after failing to meet up with its first two deadlines (December 20, 2020 and March 2021) set in 2018 for the reassessment and amendment of the bill, the NASS came under heavy criticism from different parts of the country.
Top among the cogent factors distressing Nigerians over the failure of the NASS to rework the Electoral Act is the growing insecurity and killings at election venues and mass disenfranchisement of citizens. In the 2015 poll, no fewer than 106 Nigerians lost their lives, while only 43.65 per cent out of over 87 million of them who registered actually turned out to vote during the election. More dishearteningly, about 626 persons were killed across the country in the six months between the start of the 2019 election campaign and the commencement of the general and supplementary elections according to the Nigeria Civil Society Situation Room. To confirm the worrisome level of voters’ turn-out, only 49.78 per cent of voters voted during the election out of 84 million, who registered for the poll.
The various calamities that plagued the past two general elections in the country obviously didn’t go well with INEC. Perhaps, that was why the commission cried out to NASS in April this year that the delay in the passage of the Electoral Act is drastically affecting its preparations for the 2023 poll, which observers have said must be effectively done to enhance democracy and engender good governance in the country.
Speaking during a public hearing on the Electoral Offences Commission Bill in Abuja in April, the INEC Chairman, Professor Mahmoud Yakubu, said in order for the commission to achieve its plans needed to actualize the success of the next general election, a speedy passage of the Electoral Act is needed.
”There should be clarity and certainty about the electoral legal framework to govern the 2023 general election. The public hearing on the Bill was being done 13 years after the recommendation of the Uwais Committee in 2008. And beyond that there had also been so many reports basically calling for action on electoral offenders,” Yakubu said.
”INEC is saddled with a lot of responsibilities ranging from the registration and regulation of political parties to conduct elections to registration of voters, delineation of constituencies, conduct of elections, by-elections, referendum recall and the elections appear unending.
“So it is important as we consider this bill to take into consideration those enormous responsibilities that the commission discharges. We look forward to the day when highly placed sponsors of thuggery, including chieftains of political parties and candidates will be prosecuted,” he added.
But in less than three weeks to the INEC’s cry in Abuja, a coalition of civil society organisations (CSOs) lambasted the leadership of the NASS for the delay in the passage of the bill.
The coalition, comprising Yiaga Africa, Centre for Liberty, Movement for Socialist Alternative, Raising New Voices, Electoral Hub, NESSAction, Leadership and Accountability Initiative, Legal Arise Nigeria Youth and Voter Education Nigeria, staged a peaceful protest at the NASS complex in May, asking the NASS leadership to spearhead a speedy passage of the bill in order to prove to Nigerians that they are not part of an emerging conspiracy within the current ruling political elite to scuttle the conduct of the 2023 elections.
In an interview with Sunday Tribune recently, one of the leaders of the groups who participated in the protest, Ariyo-Dare Atoye, said: “I coordinate the group and we have close to about 10 partners under the group. The whole essence of the protest is to let the National Assembly and Nigerians know that the most important legislative business that should be and is before the National Assembly is the passage of a new Electoral Act that guarantees electronic transmission of results, transparency and credibility of our elections.
“We want the National Assembly to know that there is no way Nigerians will have confidence in their ability and sincerity to amend the 1999 Constitution without concluding the process of having a new Electoral Act that started about two years ago and which they failed to pass on two occasions. We want Nigerians to put the National Assembly to task and possibly pause every process towards the amendment of the 1999 Constitution until the Electoral Act is passed.
But after failing to meet its first two deadlines, the leadership of NASS again set June, 2021 as another deadline for the passage of the bill. But instead of meeting up with this, the legislators failed again, much to the displeasure of political observers in the country, who feel that the needless delay in the passage of the bill pose serious threat to the success of both the November 6 governorship election in Anambra State and the elections that will come after it. To save the assembly from more severe backlash from Nigerians, the Senate President, Lawan, last week pleaded for more time. He said before the end of July, the needed electoral reform would be passed.
“I want to inform Nigerians from this platform that the next two months will witness very remarkable legislation passed by this National Assembly. The two chambers have worked so hard to ensure the passage of the Petroleum Industry Bill.
“Equally important is to ensure the passage of the Electoral Act Amendment Bill and of course the amendment of the Constitution. Between now and July, Mr Speaker we would be on this long road and by the grace of God, before we go on summer recess, we would take a break after we pass these very important bills for the betterment and development of our country,” Lawan said.
“That is what we promised Nigerians: that we are able to continue to pass legislation that would bring better security to the people of this country, that our economy is able to provide for everyone, that our young Nigerians are able to actualize their dreams. This is a task we have to keep our eyes on. That we remain focused no matter what.
“We have a date with history that we have been given that opportunity, the trust and mandate to preside over the two chambers, we should not allow any opportunity by anyone to take us away from the mission of making this country better. It takes challenges but challenges are likely to be everywhere, depending on the circumstances, but we can do better when we remain committed and focused on resolving these challenges.
“And with this, I want to assure you that I and the entire Senate would continue to support you and the House because we have a conjoined fate. We want you to succeed and you have been succeeding,” the Senate President added.
But as it stands now, a member of the House of Representatives Committee on INEC and joint HoR/Senate committee on Electoral Matters, Honourable Solomon Bob, said it is doubtful whether the NASS will still be trusted by Nigerians to deliver the Electoral reforms within the short time remaining before the imminent elections in the country, especially the one for 2023.
Speaking recently during Sunrise daily programme on Channel Television, the lawmaker said, “I wish I could tell you what is holding back the Electoral Act from being passed, but I don’t know. And this shouldn’t be because I am a member of the committee. The development is really unhealthy. Last year, our leadership at NASS went about promising Nigerians to deliver electoral reform. But right now, what I can say is that they are working back on their promises.”
“On our part at the level of the committee, we have drafted the bill. We initially started with public hearing, after which, we went into the drafting properly. In fact, I never had a full Christmas celebration with my family as I was asked to come back for the committee’s work. And since then, we have done everything needed on the bill. But I still don’t know what is delaying its signing. I suspect there is something sinister going on in the chambers. Nigerians really need to put pressure on the NASS leadership,” he said.
Explaining how the non-signing of the bill has been detrimental to the country’s democratic development, the executive director of the Civil Society Legislative Advocacy Centre (CISLAC), AuwalTijani, said the non-passage of the Electoral Act has resulted in the loss of confidence of Nigerians in the country’s political process.
“We all know that the lack of effective electoral reforms has drastically soiled the confidence of Nigerians in the country’s electoral process. And for NASS to restore this confidence and provide a solid ground for INEC and the Nigerians people to participate in the electoral process especially in 2023, we must prioritise and make sure that the Electoral Act is amended. Anything short of this will further dent the confidence of Nigerians in the system.
“There is no reason whatsoever for NASS to have delayed the passage of the bill till now when the general election is just two years away. If the excuse that they gave the last time was that of typographical error, why haven’t they corrected this since? Honestly, this delay is destroying the democracy that they and all other politicians in the country are enjoying,” Tijani expressed.
He said the NASS knew quietly well that one of the reasons they need to amend the electoral Act is the need to enable INEC to function as a true independent body, adding that the exclusion of youths in the political process, despite being the largest part of the country’s population, is another key factor calling for quick amendment to the electoral Act before the 2023 election process begins.
“Another that needs to be taken care of in the amended Act is the use of technology because there is no way we can be doing things in the analogue way and expect results in this cyber-centric dispensation. We need to give legal backing to the use of card readers and all because the courts have been ruling that their use in the 2019 election is not backed by any legal framework.
“Again, the Diaspora has been agitating for participation in the electoral process which is legitimate because they cannot continue to be excluded in the process, despite contributing economically and socially to the country. Even smaller countries like Niger include their Diaspora in their electoral processes. We need to really reform and amend the electoral Act to give it credibility and encourage Nigerians to participate in our political process,” Tijani added.
Explaining some of the flaws in the 2010 Electoral Act which the country currently operates, #FixPolitics, a citizens-led research-based initiative, said the Act is weak, problematic and filled with irregularities, asking the NASS to tackle its grey areas, some of which, it said, include its section 2: functions of the commission, section 6: establishment of offices in each state and FCT, section 9: continuous registration and Section 12: qualification for registration, among others.
According to the initiative, other sections in the 2010 Electoral Acts that must be repositioned include: “Section 44 – Format of Ballot Papers; Section 52 – Conduct of Poll by Open Secret Ballot; Section 87 – Nomination of Candidates by Party; Section 119-157 – Electoral Conduct and Section 127 – Voting by Unregistered Persons.”
“Concerning ‘Section 2 – Functions of the Commission’, we propose that the NASS should take on the role and responsibility of calling for a referendum on a new constitution. The NASS should facilitate the process through which the Nigerian people can exercise their constitutional sovereignty to give themselves a constitution. This role is not only consistent with principles of constitutional democracy; it is also a validation of the provisions of the Nigerian Constitution.”
“We also proposed a reduction of the time provided in ‘First schedule –Rules of Procedure for Election Petitions: Sections 12, 14, 16, 18 & 142’. Paragraph 12(1), which gives a respondent 21 days within which to respond to a petition, can be shortened to seven days. Paragraph 16(1) which provides a petitioner five days within which to respond to new facts by the respondent, can be shortened to 48 hours,” it recommended.
With the missed opportunity of Anambra election, INEC still has the window of the Ekiti and Osun elections coming up next year. All the National Assembly require to fix the Act is within its powers to do and further delay may have far reaching implications for election in 2023 where it will not be tidy to test the fresh proposals for the Act.
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