2019: Matters Arising from Senate Amendments to the Electoral Act, 2010 – By Samson Itodo

By Samson Itodo

The Nigerian Senate has received encomiums for providing national leadership in the timely and progressive conclusion of its amendments to the Electoral Act, 2010.  It took the Senate 1 year[1] to conclude its amendment process and submit a 27 clauses amendment to the electoral act[2]. A cursory look at the amendments will suggest that the Nigerian Senate is responsive, strategic and committed to electoral reforms. Whilst the Senate must be commended for undertaking such a herculean task of rejigging our electoral system, it is important to undertake a critical examination of the amendment and ascertain if its responds to our current electoral reality.  The senate amendments can be summarized under the following strategic themes;

1. Deepen the Integrity and Neutrality of INEC

The Senate amended several sections of the act to protect the integrity and impartiality of INEC as a non-partisan entity. These amendments are expected to boost stakeholder’ confidence in the electoral process thereby promoting the acceptability of electoral outcomes. The amendment to Section 8 of the Principal Act deters INEC officials from partisanship and it prescribes 5 years’ imprisonment or a fine of at least N5,000,000 as penalty for any person with affiliation, connection or membership of a political party who refuses to disclose his membership status to secure appointment with the Independent National Electoral Commission in any capacity. This amendment is in line with Section 156 of the 1999 Constitution as amended. It also reinforces Section 28 (1) of the principal Act on the neutrality of electoral officials.

2. Increased use of technology for elections

The introduction of technology for elections enhances electoral integrity. This is exemplified by the plethora of amendments aimed at mainstreaming technology in the administration of Nigerian elections. The Senate enshrined the use of card reader or any other technological device which INEC deems fit for the accreditation of voters. It also legalizes electronic voting and electronic transmission of results and accreditation data.

3. Improved access to electoral data and information

In an attempt to promote openness and transparency, the Senate legalizes publication of important electoral data and information like voter register to increase public access and facilitate public scrutiny of election data. The Senate in its amendment provided for the establishment of a National Electronic Register of Elections Results to be established by INEC.  Under Section 43 of the amendment act, party agents and accredited election observers have now been legally empowered to inspect original copies of election materials before the commencement of an election. The materials include ballot papers, results sheets, ballot paper account and verification documents.

In the new Section 44, INEC is required to invite political parties 20 days to an election to inspect their identity on samples of election materials to be used for an election. The parties are provided a 2 days’ timeline to approve or disapprove of its identity on samples of election materials. Failure to disapprove or participate in the inspection exercise does not constitute sufficient claim for exclusion in an election.

4. Enhanced electoral procedure and time frame

In its wisdom, the Senate thought it apt to revise the timeframe for conclusion of all matters relating to registration of voters, update and revision of voter register from 30 days to 60 days to an election. 60 days was the original timeframe in the Principal Act until the National Assembly acceded to the request of the Professor Jega-led INEC to amend the timeframe to 30 days in the second alteration to the 2010 electoral act. Then the alteration received legislative approval to enable eligible Nigerians register to vote in the historic 2011 elections.

In the Electoral (Amendment) Act, 2015, Section 18 (1) and (2) was amended to increase the timeframe of replacement of lost, destroyed, defaced, torn or damaged card voter card from 30 days to 60 days. The Senate amendment is expansive to the effect that all matters relating to voter registration is concluded 60 days before any election. This will provide INEC sufficient time to focus on other priority issues like electoral logistics, deployment, trainings, voter education etc.

One landmark amendment by the Senate is the amendment to Section 53 of the Principal Act on over voting. The amendment is to the effect that the votes cast in a polling unit will be nullified, if the number of votes cast during an election in that polling unit exceeds either the number of accredited voters or registered voters in that polling unit.

A new procedure was introduced in the results collation and announcement value chain. By virtue of Section 67 of the amendment, collation officers and returning officer are statutorily required to verify and confirm election results before the announcement of election results. A detailed procedure for resolving disputes arising from collated result or the result of an election from any polling unit is also provided for in the Senate amendment.

5. Electoral offences

The Senate stiffened the penalty for obtaining party registration by providing false or misleading information. In such an event, INEC will have the certificate of registration cancelled and the association will liable upon conviction to a fine of N5,000,000. Its officers (executive and principal officers) shall be liable to a fine of 1,000,000 each or   6 months’ imprisonment or both. The Senate introduced stiffer penalties for INEC officials for non-compliance with laid down procedure or acts capable of undermining the integrity of the electoral process.

6. Internal party democracy

As much Nigeria tries to advance in her democratization process, the lack of internal democracy in political parties remains a major setback. Efforts have been made to strengthen internal party democracy in the past. Incidentally, the Senate introduced an expansive new provisions with 26 new subsections, making it the section with the largest number of new subsections. The amendment sought to deepen internal democracy through open, inclusive and transparent candidate selection process. The amendment by the Senate prohibits parties from imposing nomination qualification and disqualification criteria, measures, or conditions on any aspirant or candidate for any election in its constitution, guidelines, or rules for nomination of candidates for elections, except as prescribed under sections 65, 66, 106, 107, 131, 137, 177 and 187 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). This bold and innovative amendment will promote inclusion, transparency and constitutionalism.

7. Limitation on campaign expenditure

It also prescribes the limit to be imposed by political parties on candidates seeking election as fees, charges or dues, with this amendment, Political parties can no longer impose arbitrary nomination fees or charges. The amendment introduced the following limits;

1. N150,000 for a Ward Councillorship aspirant in the FCT;
2. N250,000 for an Area Council Chairmanship aspirant in the FCT;
3. N500,000 for a House of Assembly aspirant;
4. N1,000,000 for a House of Representatives aspirant;
5. N2,000,000 for a Senatorial aspirant;
6. N5,000,000 for a Governorship aspirant; and
7. N10,000,000 for a Presidential aspirant.

8. Substitution of candidate in the case of death or withdrawal

In the new amendment to Section 33 of the Principal Act, if a candidate dies or withdraws his/her candidacy, the party affected shall within 10 days conduct fresh primaries and submit a fresh candidate to INEC. In section 36, the Senate sought to fill the lacuna in the law in relation to cases where a candidate in an election dies after the commencement of poll but before the declaration of election result. INEC is empowered to suspend elections in those instances for a period not exceeding 21 days. The affected party is permitted to conduct fresh primaries and present a new candidate to replace the dead candidate within 14 days. Furthermore, only the Chief National Electoral Commissioner (INEC Chairman) can countermand a poll and appoint a convenient date for an election where a nominated candidate dies before the commencement of an election.

9. Election Petition

In its bid to promote electoral justice, the Senate amended Section 138 of the Principal Act to expand grounds for electoral petitions. In addition to non-compliance with the Electoral Act, any act or omission at variance with INEC manuals, guidelines, regulations, procedures and directive constitutes a ground for petitioning an election. In the same vein, an election shall not be invalidated if there’s substantial compliance with INEC manuals, guidelines, regulations, procedures and directive. The Senate also proposed that an election cannot be challenged on grounds of qualification, if the winner of that election satisfies the criteria for that election as prescribed in the constitution.

Section 142 was amended by the Senate to fast-track the hearing of election petition. The amendment renders oral evidence unnecessary in the event that a party who alleges non-compliance with the provisions of the Act and the INEC manuals, guidelines, regulations, procedures or directives lists the documents in an election petition. Section 151 of the Principal Act was also amended to prescribe punishment for a breach of an order of a court or tribunal directed at INEC in respect of inspection or production of electoral materials.

10. Regulation of local elections and State Independent Electoral Commissions

To guarantee the conduct of free, free and credible elections, the Senate proposed an amendment to extend the application of the Electoral Act to State Independent Electoral Commission. It mandates SIECs to conduct all local government council elections in strict compliance with the spirit and tenets of the 2010 Electoral Act as amended.

Matters Arising from the Senate electoral amendment 

1. Ouster clause

`           The amendment by the Senate in Section 87 (24) and (25) seems to oust the jurisdiction the Court in matters relating to party primaries. Specifically, the courts are precluded from halting the conduct of party primaries, congresses or general election pending the determination of any suit. The proposed amendment reads;

24. Notwithstanding the provisions of this Act or rules of a Political Party, an aspirant who complains that any of the provisions of this Act or rules of a Political Party has not been complied with in the nomination of a candidate of a Political Party for election, may apply to the Federal High Court or the High Court of a State or the FCT for redress.
25. Nothing in this section shall empower the Courts to stop the holding of ad-hoc delegates elections, primaries or general election or the processes thereof under this Act pending the determination of the suit.

This proposed amendment is contrary to the provision of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Section 4 (8) of the Constitution is instructive;

Save as otherwise provided by this Constitution, the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law, that ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law.

Nigeria is a constitutional state. A constitutional state is the one with sublime belief in constitutional government, i.e., the one run on the strict and unequivocal insistence on the principles and practice of government regulated by a constitution. Constitutional states, first and foremost, recognize the supremacy of the constitution as the most fundamental and philosophical law of the state defining as it is the rights and duties of persons and institutions. From this principle grew the tradition of stating as early as possible in the preliminary sections (usually Chapter 1) of any democratic constitution that: “This Constitution is supreme and its provisions shall have binding force on the authorities and persons throughout the country.” The twin doctrine of separation of powers and checks and balances provides guarantees for power sharing and democratic accountability. A constitutional state, in effect, is ideally a state where the rule of law reigns supreme and where the conduct of state operation or governance is run on the basis of the stance of the law or the constitutions.

All institutions; legislative, executive and judiciary derive their powers from the constitution. Any power exercise out of the constitution is null and void. Legislative powers cannot be exercised inconsistently with Constitution. In Nafiu Rabiu V. The State and A.G. Abia State V. A.G Federation, the Supreme court has consistently upheld the supremacy of the Constitution as the supreme law of the land. In the words of the late Justice Udo Udoma ‘The function of the Constitution is to establish a framework and principles of government…”

The Senate ought to have been guided by the provisions of the constitution is making amendments to the electoral act. Section 4 (8) of the Constitution bars the National Assembly or a State House of Assembly from making law that either ousts or purports to oust the jurisdiction of a court of law or of a judicial tribunal established. The new section 87 (24) and (25) is an ouster clause and should be expunged. Ousting the jurisdiction of a court undermines the Constitution and it is antithetical to constitutional democracy.

2. Can the National Assembly Legislate on Local Government Elections?

The Senate in its wisdom sought to entrench democratic elections at the local government level by expanding the application of the Electoral Act to local government elections. This is against the background of the overbearing influence and control of state governors on the State Independent Electoral Commission (SIEC). SIECs are a constitutional creation responsible for organizing elections into local government councils within the state. Section 197 and Paragraph 4 of Part II of the Third Schedule to the Constitution establishes the SIEC as one of the State executive bodies.

The contending issue in this amendment is whether the National Assembly has the power to make laws with respect to the procedure for the conduct of local government council elections considering the fact that the State Independent Electoral Commission is one of the State Executive bodies established under section 197 of the Constitution with power to organize, undertake and supervise local government elections?

In response to the question as to whether the National Assembly has the powers to make laws for the procedure for the conduct of local government council elections, the answer is that by the combined provisions of paragraphs 11 and 12 of the Second Schedule to the Constitution, the National Assembly is empowered to make laws for the federation in respect of the procedure to regulate elections to local government councils. Specifically, paragraph 11 of the Second Schedule to the Constitution states that the National Assembly may make laws for the Federation with respect to the registration of voters and the procedure regulating elections to a local government council. Paragraph 12 on the other hand states that nothing in paragraph 11 shall preclude a House of Assembly from making laws with respect to election to a local government council in addition to but not inconsistent with any law made by the National Assembly. When paragraphs 11 and 12 are together, the effect is that the National Assembly and State Houses of Assembly may make laws concerning local government council elections but the catch is that in the event of a conflict between a law made by the National Assembly and a law made by a State House of Assembly concerning local government council election, the state law shall be void to the extent of its inconsistency. Therefore, to the extent that the new insertions as proposed by the Senate relate to the procedure for conduct of local government council elections, the Senate acted within its constitutional legislative competence.

3. Sufficiency of documentary evidence

Section 142 of the principal Act is amended by inserting a new section 142A. The new section states that:

                             “ It shall not be necessary for a party who alleges non-compliance with the provisions        of this Act and the published manuals, guidelines, regulations, procedures or directives      issued by the Commission for the conduct of elections to call oral evidence if originals or certified true copies of electoral documents or materials used by the Commission to conduct the elections in the polling units (s) where the non-compliance is alleged are listed in a petition and tendered at the trial at of the petition in proof of the non-compliance complained of”.

The section dispenses with oral evidence where the petitioner pleads and tenders original or certified true copies of the documents or materials used to conduct the elections in the area or areas in dispute. The amendment accords with the position of the Evidence Act that certified true copies of public documents can be tendered from the Bar if they are pleaded. The new section saves time as well as help to fast-track hearing of election petitions.

4. Over legislation

There is a growing tendency of legislators to over legislate in its bid to provide for all forms of eventuality. The Senate in its current amendment of the electoral act have excessively legislated in certain respect especially in relation procedure for elections. However, it must be pointed out that over legislation has its dark sides, not only does it requires a large agency and resources to enforce, it could potentially stifle the electoral commission. Most times, over legislation benefits the lawmakers, for instance, the present amendments created several offences with stiffer penalties for INEC officials. In fact, certain offences did not carry the option of fine but outright imprisonment upon conviction. One begins to wonder why the Senate refrained from stiffening penalties for offences such as buying of votes, bribery and conspiracy, intimidation, electoral violence, etc. in this current amendment.  However, it is good to note that the judiciary has the right to annul legislations. We can only hope that the law will continue to transform itself.

In conclusion, these proposed amendments by the Senate will no doubt facilitate electoral justice and accountability. It is hoped that the House of Representatives will conclude their ongoing amendment process since we are just over 408 days to the 2019 general elections and hopefully adopt most of these laudable Senate amendments. It is important to underscore the need to review these amendments to ensure their compliance with constitutional provisions and applicability within the Nigerian electoral landscape. It is also important that all the amendments done so far be harmonized into one single document at the end of this ongoing review process.

Samson Itodo is an elections and constitution-building enthusiast and he works with the Youth Initiative for Advocacy, Growth & Advancement (YIAGA). He tweets @DSamsonItodo.

[1] For the record, the bill titled Electoral Act No. 6, 2010 (Amendment) Bill, 2017 (SB.231 &234) was presented for first reading on March 10, 2016; second reading March 17, 2016 and third reading and passage on March 30, 2017.

[2] Hereinafter to be referred to as the act.

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