Electoral Act 2022: Towards Entrenching Democracy and Transparency

By Mukhtar Ya’u Madobi

Finally, after so much dragging, delay and flexing of muscles between the Presidency and the National Assembly members, the Nigerian electoral system is set to witness a major shake-up and reformation with the recent signing into law, by President Muhammadu Buhari, the Electoral Act Amendment Bill 2022.

The Act which was signed late February, at the presidential villa, flashed our memories back to 2010, which was the last time the country’s electoral law was altered.

It can be recalled that, Buhari has previously rejected the same bill in December last year when it was transmitted to him by the member of the senate for assent. Back then, he specifically sighted inclusion of the mandatory direct primaries among the clauses as the main reason for rejecting the bill at that time. He further pointed out the disadvantages of the clause to include legal, financial and security concerns among others.

The lawmakers, upon resumption from Yuletide vacation, reworked the bill and made provisions for direct primary, indirect primary and consensus as the modes for election of candidates (Clause 84(2)). In the case of consensus, they added that all aspirants must sign that they agree with the person nominated as a consensus candidate.

Now that the bill has gotten an assent, the development has truly shown Mr. Buhari’s commitment to entrenching democracy that has been yearned for so many years. However, it is apparent to say that, Buhari signed the bill after so much outcry across the section of the country by politicians, civil society organizations, CSOs, non-governmental organizations, NGOs including human rights associations.

To that effect, in order to press home their demand, a coalition of about 26 CSOs had to issue an ultimatum, threatening Mr. Buhari to either assent to the bill or stage a mother-of-all protest at the heart of the nation’s capital territory, Abuja.

The amended bill contained a number of provisions that will unarguably inject fresh changes to the conduct of electioneering and the entire electoral system. The summary of ten key provisions of the newly signed electoral act are; (i) Clause 29(1) stipulates that parties must conduct primaries and submit their list of candidates at least 180 days before the general elections (ii) Clause 65 states that INEC can review results declared under duress (iii) Clause 3(3) states that funds for general elections must be released at least one year before the election (iv) Clause 51 says that the total number of accredited voters will become a factor in determining over-voting at election tribunals (v) Clause 54(2) makes provisions for people with disabilities and special needs (vi) Clause 47 gives legislative backing for smart card readers and any other voter accreditation technology that the INEC deploy (vii) Clause 34 gives political parties power to conduct a primary election to replace a candidate who died during an election (viii) Clause 50 gives INEC the legal backing for electronic transmission of election results (ix) Clause 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 (x) Clause 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.

However, among all the new provisions captured in the amended act, specifically, clause 84(12) was the most contentious issues that spark and generated more reaction from the presidency, to the extent that Mr. Buhari pleaded with the NASS members for its scraping, as it barred political appointees from contesting election while in office.

Findings revealed that if not for the contentious provisions barring ministers, commissioners and political appointees from taking part as delegates in primaries of political parties, and resigning their appointments three months before primaries, if they were contesting, the Electoral Bill would have been signed into law a long time ago, presidential sources have said.

“The lawmakers want us to sign our political death warrant. How can I kill myself? I can’t kill myself. Why do they want to stop ministers, “The commissioners and political appointees from being delegates at our conventions? Some of us are very loyal party members and have been contributing to the party more than the legislators.” A top official in the presidency told one of the national dailies.

Pundits analyzed that, if not expunged, four ministers and some heads of agencies are going to be affected as they are nursing the ambition to contest elections. It was learnt that, Buhari and his close aides were in a dilemma over the fate of his affected political appointees who might fall prey to this clause and resign as they continued nursing ambition to run for political office in 2023.

While signing the bill into law, Mr. Buhari said section 84(12) of the act contravened the rights of political officeholders to vote or be voted for in political party conventions and congresses.

“Section 84 (12) constitutes a disenfranchisement of serving political office holders from voting or being voted for at conventions or congresses of any political party, for the nomination of candidates for any election in cases where it holds earlier than 30 days to the national election.

“The practical application of section 84(12) of the Electoral Bill, 2022 will, if assented to, by operation of law, subject serving political officeholders to inhibitions and restrictions referred to under section 40 and 42 of the 1999 Constitution as amended.

“Arising from the foregoing, with particular regards to the benefits of the bill, industry, time, resources and energy committed in its passage, I hereby assent to the bill and request the National Assembly to consider immediate amendments that will bring it in tune with constitutionality by way of deleting section 84(12) accordingly.” Buhari said.

Similarly, in what seems as victory to Mr. Buhari and his aides, a Federal High Court sitting in Umuahia, had on Friday, March 18, 2022 nullified Section 84(12) of the newly amended Electoral Act, saying it was a violation of the provisions of the Constitution. The court, in a judgment delivered by Justice Evelyn Anyadike, held that the section was unconstitutional, invalid, illegal, null, void and of no effect whatsoever, saying it ought to have been struck out.

Earlier, Mr. Nduka Edede, a lawyer and chieftain of Action Alliance (AA) party, had approached the court, in the suit that had the Attorney General of the Federation as the Defendant. The plaintiff had asked the court to determine whether Section 84(12), when read together with Sections 66(1)(f) 107(1)(f)(137(1)(f) and 182(1)(f) of the 1999 Constitution, was not inconsistent. The court in the suit, marked FHC/UM/CS/26/2022, agreed with the submissions, and ordered that Section 84(12) of the Electoral Act was inconsistent with the rights of Nigerian citizens.

However, only time will tell, whether the lawmakers will assent to the ruling of the high court and expunge the clause or they will challenge the judgement before the supreme court for further deliberation. Until then, this particular clause will remain a thorn in the flesh of government appointees who have ambition to run for other political offices.

Another issue in the Bill is Clause 52(3) which gives the INEC the discretionary powers to transmit election results electronically where possible. Though, we all clearly know that this provision is just a mirage as several geographical locations in Nigeria do not have network coverage, thereby making its implementation infeasible.

Also in the new Electoral Act, it was stated that no individual entity must donate to a candidate more than N50,000, 000 and a candidate who knowingly acts in contravention of the section, commits an offense and is liable on conviction to a fine of 1% of the amount permitted as the limit of campaign expenditure under the Act or Imprisonment for a term not more than 12 months or both.

It is also stipulated that any individual who knowingly acts in contravention of the sub- section is liable on conviction to a maximum fine of N500,000 or Imprisonment for a term of nine months or both.

More so, in the document, election expenses incurred by a political party for the management or the conduct of an election shall be determined by the Commission in consultation with the political parties.

Despite all these contentious issues, there are still positive and progressive provisions in the Electoral Act 2022 which will no doubt help in filling obvious and challenging vacuums in our electoral system, give life and validate the noble strides and regulations made by the INEC thereby remedying to a greater extent, our major electoral issues.

Evidence can be seen from the novel provisions of the law such as Section 47 of the Act which provided and now validated the use of smart card reader which helped in reducing electoral malpractice in 2015 general elections, Section 50 which provided for electronic transmission of electoral results, Section 51 on what a Presiding Officer is authorized to do in cases of over voting in a polling unit, Section 65 on declaration of election results under duress by a returning officer, Section 34 which remedied the Kogi State situation where a Candidate died at an election but before the election results are announced, Section 84 which is aimed at re-echoing and re-entrenching  transparency in the electoral process by prohibiting aspirants or delegates from holding any public office among others.

Thus, it is apt to say that the present newly signed electoral act 2022 signified a watershed in Nigeria’s electioneering system as it will go a long way in impacting positively on Nigeria’s electoral system reform.

Nonetheless, stakeholders in the electoral system should study critically the content and implication of new innovations as contained in the new provisions for proper implementation among others.