Sunday, 3rd December 2023

How 2022 Electoral Act disappointed Nigerians

By John Akubo, Abuja
20 June 2023   |   3:24 am
Subsequently, the presidential assent on February 25, 2022, boosted people’s confidence, as it prompted a lot of youths to register when the Independent National Electoral Commission (INEC) opened a window for registration exercise.


No doubt, hope was rekindled at the news of the Electoral Act 2022 passage, which had electronic transmission of results as major input of the Act.     

Subsequently, the presidential assent on February 25, 2022, boosted people’s confidence, as it prompted a lot of youths to register when the Independent National Electoral Commission (INEC) opened a window for registration exercise.
The electoral body had assured Nigerians that the Bimodal Voter Accreditation System (BVAS) would not be compromised during the 2023 general elections.
The BVAS machine, as manufactured and configured, the Commission assured, couldn’t be tampered with. Once the procedure of identification is engaged, the machine captures and authenticates the bearer of the Permanent Voter Card (PVC) and registers the same, instantly.Deputy Director of ICT at INEC, Lawrence Bayode, even said the electoral commission had taken care of every attack targeted at the BVAS.
“I want to say again that we have done everything to ensure that the BVAS is not compromised. The data on the BVAS will be secured.
“After the poll, when the data is transmitted to our backend server, the data in transit will be secured and by the time the data gets to our backend server, the data will also be secured there.
“We have looked at the machine, and we looked at a lot of things. As I said earlier, you can not build such a system, and you won’t fortify the system to solidify it,” Bayode said.
He added that though people will try a lot to beat the system, they won’t succeed. Hence, people were rest assured that the usual ballot box snatching and the accompanying violence would become things of the past, but how mistaken they were, as they later realised too late when the politicians in their usual elements explored the loopholes in the Electoral Act to unleash many infractions against the law.
Analysts pointed to politicians, the electoral umpire and courts as perpetrating the infractions against the Electoral Act 2022. They noted that technical judgments obtained by the former Senate President, Ahmed Lawan, who superintended the making of the Act, Senator Godswill Akpabio; Ebonyi Governor, Dave Umahi; Bauchi State Governor Bala Muhammed and even the Vice President Kashim Shettima, all contributed to the failures associated with the Act.
All the individuals listed above contested the primary election to be nominated as candidate for presidency in their political parties, however, when they lost, they quickly went back to be elected as senators, or governors as the case might be.
Another major setback for the Nigerian democracy remains the enormous power the Constitution had vested in the executive governors of the 36 states, which has now become the greatest albatross of the nation’s nascent democracy.
One of the most pressing debates in Nigeria today is on the continued retention or removal of the immunity clause enshrined in section 308 of the 1999 Constitution of the Federal Republic of Nigeria.
In the February 25, 2023 Presidential/National Assembly elections, upload of results at polling units in real time was not observed by the INEC as promised, as the National Assembly election results, which took place simultaneously with the presidential elections were uploaded.
When the results were uploaded eventually days after, mutilated result sheets and cancellations with writing pen and corrections with Tipp-Ex were very obvious, no one needed further explanation as to the cause of the delay in the upload of the Presidential election results the outcome of which has left very bad taste in the mouths of many Nigerians.
Those who were not at home with the outcomes and declarations have since approached the courts, and the cases are already being looked into.
Another contradiction against the electoral act happened in Adamawa, where the Resident Electoral Commissioner, Hudu Yunusa-Ari, declared a governorship candidate winner before collation was completed against what the electoral act stipulated that only the collation officer had the power to declare winners.
Hence, INEC has been at the receiving end, with many calling out the chairman Mahmood Yakubu for failing to deliver as he promised.
Dele Farotimi, a lawyer and political activist, said, “INEC proved what it had always been, completely Nigerian, Nigerian in everything that has been bad in our country for a long time. It preferred to be ruled by impunity instead of the guidelines and others that it had promised people.”
Apparently piqued by the poor outing of INEC in the 2023 election, YIAGA Africa, a civic hub promoting democracy in Nigeria, said Yakubu’s INEC “has been captured,” as it labeled the Commission a threat to democracy.
Its Executive Director, Samson Itodo, declared the Independent National Electoral Commission (INEC) under the current leadership of Professor Mahmood Yakubu, as a threat to democracy. He said conducts of INEC officials during the country’s recent general election are proof that the electoral umpire has been captured and is incapable of conducting credible elections.
Itodo spoke while delivering a speech at a conference organised by the National Institute for Policy and Strategic Studies (NIPSS) in Abuja, citing instances in Adamawa and Abia states, among others.
“If you have an election whose policy making process has been captured, its procurement system has been captured, an electoral commission whose operational system has been captured does pose a threat to democracy; that is what we saw in the 2003 elections.
“You can not have an electoral commission whose appointees are dominated by politicians, people who have tinted and compromised records… as a people we have to rise at this critical moment to say enough is enough. This capture of the electoral commission I don’t know how INEC will be able to deliver a credible election if the managers of our political system are people who are aligned with political parties, you will not have a credible election in the circumstances.
“This is what happened in places like Adamawa, Sokoto, Abia, good that INEC responded and took some actions, but I think it is important to note that a captured INEC is a threat to democracy.
“Another issue is that we need more than technology to deliver credible elections. We need the principles of integrity to deliver credible elections. Technology did not fail in the 2003 elections. What failed is the human factor. So, we can have the best of Technology, if we have human beings who are compromised, human beings who are determined to subvert the process, there is no way technology will deliver credible elections.”
According to the whistleblower, in its preliminary report on the 2023 presidential election, YIAGA Africa had accused INEC of undermining the poll in the Southeast and South-South regions of the country due to poor planning.
“The failure of the IREV system, intended to enhance transparency could potentially impugn the integrity of the elections,” the civic hub declared while describing the presidential election as another ‘missed opportunity.’
The Director of Center for Democracy and Development (CDD), Idayat Hassan, said: “For us at the CDD, all the infractions already enumerated above stand condemned.
“In previous interventions, we made it abundantly clear that persons who engage in acts that undermine the integrity of the elections should be held to account.
“As for the role of the judiciary in cases, which are sub judice or in which the courts have given judgment, accountability normally takes the form of post judgment explanation, which the Supreme Court normally gives for such landmark cases. 
“While some of the judgments given in the pre-election cases of double nomination certainly raised eyebrows, we will have to evaluate the reasoning behind the verdicts first before commenting.
“We, however, expect that as part of the push for accountability, those institutions concerned should provide explanations for their verdicts as they normally do in landmark cases.
“That is the only way to build public confidence, especially in a post election environment that has become heavily polarised on account of the trust deficit precipitated by the perception problems that have trailed the elections.
“And to further add, civil society and media must shadow the judiciary more instead of just reporting judgments delivered. However, it is important to state that while every infraction must be addressed, there are some that are about the culture of impunity that has become a feature of our electoral space.
“Such brazen subversion of extant laws and regulations guiding the conduct of elections should be met with serious sanctions.
“The conduct of the Adamawa State Resident Electoral Commissioner, Hudu Ari, falls squarely into this category. As a matter of fact, his despicable and patently illegal conduct took our electoral process back to the dark ages, when results were illegally declared without due consideration for the laws and the votes of the electorate.
“Actors like Ari should be severely sanctioned to send the right message that the country will not condone acts, which in effect undermine the supremacy of the will of the electorate.
“While it is commendable that he has now been suspended following the petition to the President by INEC, the next critical step is for the Commission to bring him before the court to answer for his infractions.
“Also, his collaborators, especially security officials who took part in the brazen attempt to undermine democracy in Adamawa, should be similarly made to have their day in court.
“It is only by robustly prosecuting such offenders that we can sanitize our electoral process and win back the confidence of a skeptical public, which is losing confidence.”
The Adamawa issue: First, there was the problem of appointment into the commission that we also did not pay attention to. Secondly also they exploited the Electoral Act.
“Section 25 of the electoral act talked about the appointment of the Returning Officer, collation officer in an election. Sections 64, 65 of the Electoral Act, also speak further about the power of the returning officer to make declaration, 65 talks about reviewing of results that are declared under duress.
“If you go to section 147 of the Electoral Act, it talks about the delegation of powers of the commission. It said without prejudice to other provisions of the electoral act, the commission may delegate any of its powers, or function to any electoral Commissioner, Resident Electoral Commissioner (REC) or any other officer of the commission or any other officer appointed under the provision of the Act subject to the condition or limitation, which it may consider necessary or expediently, delegation shall be construed to limit the right of the commission to a first power, that is talking about any other officer of the commission could have done what that INEC REC did, but again that is also in contravention of the section that I have listed out earlier that gives power to the returning officer.
“What the REC in Adamawa did was the usurpation of the power of the Returning Officer to make the return, secondly it was also a process that was not concluded, so it was a gross abuse of privilege, a gross abuse of office because they had only counted for 10 LG and were yet to count for the remaining 10 and the man went ahead to make such declaration.

“The declaration is evil, the declaration is criminal, it is capable of bringing democracy to its knees. We are lucky that the people of Adamawa did not react violently, that they were able to maintain the peace until INEC reversed itself in such a decision that was made.
“But then, to go back to all of these, the issue in Adamawa did not just start that Saturday. In the first instance, there are complaints around INEC and how it is applying its own guidelines and the Electoral Act.
“If you go back to the election that happened on March 18, there were concerns also raised from other states. In Kaduna for instance, the difference between the two candidates was just 10, 000 votes, in Ogun the difference between the two major parties was 19,000 votes, and in Enugu the difference was 3,000 votes and INEC made declarations.
“In Adamawa, the difference was 31,000 votes, INEC asked for a supplementary election. Why are we going to be having the same election, but different applications of laws in different states?
“That is the problem. What we see here is that there is so much discretion that is allowed in the commission. All you will be hearing is that guideline, INEC shall. Some of these issues should be the matter of the electoral act.
“We may have to begin to think of how to take off those powers from the INEC election guidelines, election, and then issues of concern in the electoral act.
“The other thing is about the appointment of the REC, these appointments were made by the President, secondly if you recall before the election in July or August of 2022, the President submitted names of 19 nominees to the senate for confirmation as Resident Electoral Commissioners.
“The civil society raised concerns about some of the nominees. Specifically, the one that was recommended from Sokoto State, who had contested in the election in 2015 under the APC in Sokoto State, the one also from Abia State, was alleged to be partisan.
“We raised the concern to the senate. Of course, the senate did not consider it, and we saw what happened after the deployment.
“The Sokoto nominee was deployed to Jigawa State and the people protested that appointment in Jigawa State and we went in to the election and before the election INEC noticed some of those problems and decided before the election in Sokoto on March 18th, they suspended the REC, before the election in Abia also they suspended the REC.
“There were complaints about the REC in Adamawa before then. Why wouldn’t INEC apply the same rule? What INEC simply did in Adamawa was to move the ICT director from Adamawa to the Center and never did anything about the REC.
According to him, they will employ people who will go through the electoral act to look for the loopholes. He cited section 84, which deals with the right mode for conducting party primaries; direct, indirect, and now we got option for consensus.

“During the electoral reform conversation, the civil society requested for the review of section 64 to tighten up some of those things that had to do with internal party processes like campaign financing, nomination fees for candidates.
“For the civil society, especially for groups that supported the ‘not too young to run bill’, we thought it would be an opportunity to lower the cost of nomination to allow more young people or people that don’t have the resources as big as others to be able to participate.
“The whole idea for us was to see how we could improve inclusion in the process.”
“Ahmad Lawan is one of the cases being cited, if you recall there was a primary election that brought in Machina and then everybody knew Machina was the man and later what his party went back to conduct another primary, that happened sometimes in June.
“At a point INEC did not display any candidate until Machina went to court to seek interpretation of that, then the party submitted Ahmad Lawan’s name. Of course, INEC will only take the one that the party submits.
“There was a Lacuna because in the first instance, I am not sure INEC even attended the primary. The electoral act stipulates that it is only the primaries that INEC attended that will be recognised.
“That opened a big issue one on the part of INEC because they did not do well. They could have rejected that and referred them to the primaries that it witnessed. One begins to wonder sometimes whether there are different laws for certain people.
“Clearly, what happened was the case of the internal party processes which the electoral act failed to take care of.”

In this article