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Revisiting controversial provision in Electoral Act Amendment Bill

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Senate President, Lawan

Disturbed by the stream of violence, bloodshed and other electoral malfeasances that have characterised the electoral process, the National Assembly in 2019 initiated moves to tackle these challenges through a rejig of the Electoral Act. At first, the focus of the amendment Bill, as presented by both chambers, was to ensure that the Independent National Electoral Commission (INEC) adopts an electronic voting method for future elections.

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Apparently because of the genuine motive behind the legislative move, it scaled through the second reading without hitches in both chambers and without serious opposition from Nigerians. Entitled, “A Bill for an Act to Amend the Electoral Act No.6 2010 and for Other Related Matters, 2019 (SB.122)”, it was sponsored by the Deputy President of the Senate, Ovie Omo-Agege, and co-sponsored by Senator Abubakar Kyari, at the senate.

In the House of Representatives, Deputy House Minority leader, Toby Okechukwu, sought an amendment to clause 52(2) of the proposed amendment to the Electoral Act, calling for the transmission of results electronically. The joint National Assembly Committee on INEC and Electoral Matters had recommended that INEC should reserve the power to transmit results by electronic means, where applicable on the day of the election.

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However, the Senator representing Niger North, Sabi Abdullahi, said the power to determine the practicability of electronic transmission should be vested in the Nigerian Communications Commission (NCC) with the approval of the National Assembly. Abdullahi had sought for an amendment to the clause providing that, “the commission may consider electronic collation of results provided the national network coverage is adjudged to be adequate and secure by the NCC.” This implied ceding parts of INEC’s mandate to conduct elections to NCC and the National Assembly.

This development was contrary to the amendment sought by Senator Bassey Akpan, which was also the same as the recommendation by the INEC Committee that presented the report. The INEC Committee report provided that INEC may transmit results of elections by electronic means where and when practicable at its discretion.

The House of Representatives in Section 52(2) of the amended Bill, gives the INEC the discretion to adopt electronic voting or any other method of voting it deems fit. However, the Section is silent on the issue of electronic transmission of results.

On its part, the Senate, in the same Electoral Act Amendment Bill 2021, recommended that the National Assembly and the NCC determine the application of electronic transmission of results. The recommendation by the Joint Committee in Section 52(3) provides: “The Commission may transmit results of elections by electronic means where and when practicable.” But the amendment agreed on eventually is: “The Commission may consider the electronic transmission of results provided the National Network Coverage is adjudged to be adequate and secure by the National Communication Commission and approved by the National Assembly.”

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This provision that was adopted and passed for presidential assent, according to legal opinions, is not only dysfunctional but also unconstitutional, as it goes against Section 78 of the Constitution, which states that “the conduct of elections shall be subject to the direction and supervision of the Independent National Electoral Commission.

Lawyers who expressed views on the Electoral Amendment Bill said the National assembly was ill-advised on the decision to cede INEC power to NCC and itself to determine the mode of elections. According to them, for the amendment to be valid, the Constitution has to be reviewed to take the powers from INEC and domicile such powers with the NCC and the National Assembly.

Ovie Omo-Agege

The lawyers argued that since the Constitution is the grund norm, no other law could take a higher position, except the Constitution was reviewed. The lawyers also said the position of the law and the Constitution were that: Section 1 and sub (1) and (3) confirmed that all other laws are subservient to the Constitution and therefore would be contrary to expected legal traditions to cede constitutional powers by act of parliament.

However, despite opposition to the Electoral Act Amendment Bill, majority of the lawmakers, voted along party line on the controversial clause. While the ruling All Progressives Congress (APC) lawmakers wanted the clause retained, the opposition Peoples Democratic Party (PDP) members wanted it expunged.

According to an Abuja-based legal practitioner, Pius Danba, the passage of the amendment bill is the worst form of abuse of legislative power in Nigeria’s constitutional democracy. Danba said Nigeria is blessed with good people but cursed with bad leaders who seem to be committed to truncating any good idea that may bring salvation, succour or good tidings to Nigeria.

He said: “Whereas Nigerians innocently sought for express provision for electronic transmission of election results, the National Assembly was daring enough to prohibit electronic transmission of results. In simple terms, the state of the law on transparent election was moved from good to worse instead of from good to better.”

The legal practitioner cautioned that if this Electoral Act Amendment Bill is assented to by the President without further alterations, then Nigeria is going to witness a relapse into growing incidences of illegal alteration of election results, inflation of votes at collation centres and falsification of results, among other malpractices.

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According to him, the political class wants a weak state of the law as passed by the National Assembly to enable them get away with corrupt practices in future elections. Danba reminded Nigerians that INEC had successfully deployed electronic transmission of results in various bye-elections conducted across the country in Plateau State, Nasarawa, Bayelsa, Lagos, among others.

He said: “In all of these bye-elections, the electronic transmission of results was able to monitor the results of the election in real time. Where results were manipulated, all saw it, but the same could not be challenged in the Election Tribunal because it (electoral transmission) was not expressly provided for in law. I also have a strong reservation about the attitude of the Judiciary that whatever is not expressly provided for in the Electoral Act cannot be enforceable. This is stifling the development of our democracy.”

Danba urged the Courts not to toe the footsteps of the National Assembly, but to give decisions that would promote democratic principles of free, fair and transparent elections without undue restriction to letters of the Electoral Act to the detriment of sacred principles of democracy enshrined in the 1999 Constitution of Nigeria.

According to Matthew Ogwuche, a legal practitioner, the electoral bill passed by the National Assembly is in breach of the Constitution because the Constitution vests INEC with the powers to organise and set guidelines for the conduct of elections. “My take is that the National Assembly usurped the powers of INEC by empowering NCC to determine the mode of transmission of election results. INEC must have and be seen to have the final say on this matter.”

For Idoko Aba, An Abuja-based legal practitioner, the proposed electoral amendment bill could spell doom for the country’s electoral process. He said: “Giving the National Assembly powers to determine mode of election as regards to transmission of results would be a bad omen for the nation’s electoral process.”
He stated further that most of the senators and the National Assembly members would do anything to come back despite some having grossly underperformed in their constituencies.

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Abah emphasised that the power to conduct elections and determine the mode of elections and all other electoral processes should reside with INEC as stipulated in the Constitution. Abah questioned the rationale for the National Assembly ceding the responsibility of determining the mode of elections to itself, while many other areas were begging for their attention to legislate for good governance.

The Abuja-based lawyer said the Constitution is the grund norm and any law contrary to the Constitution, when tested in the law court would not stand. He, therefore, advised the lawmakers to rescind the decision and review the amendment. He said the function of INEC as contained in section 15 part 1 of the third schedule of the 1999 constitution (as amended) and Section 2 of the Electoral Act 2010 gave INEC powers to organise and determine the procedure of elections in Nigeria.

He said that the electoral amendment bill was contrary to the Constitution and as such, any law that is inconsistent with the Constitution is null and void to the extent of its inconsistency.

No doubt, Nigeria’s electoral system has over the years suffered and has been bastardised and manipulated in the hands of the political class – leading to the constant loss of life and property during elections. What Nigerians are looking forward to now, is a system that conforms to international best practices.

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