INEC, Senate in renewed collaboration to plug loopholes in electoral legal framework
Elections in Nigeria are characterised by several infractions that many an electorate has lost faith in the power of the ballot in deciding who gets into office or not. As a result, the courts have become more prominent and have, in some cases, actually taken over the functions of the ballot box in deciding winners of elections. What is more worrisome is that elections have now become avenues where needless death and destruction of properties are visited on citizens who come out to cast their ballot.
Since the 2019 general elections, there have been a series of petitions, debates, protests, sack of elected officers and intimidations by loyalists of political parties all because elections failed to deliver. Both the electorate and the electoral umpire, Independent National Electoral Commission (INEC) and observers groups are left scratching their heads what went wrong.
For instance in Zamfara State, all three Senators, Tijjani Yahaya, Aliyu Bilbis, Abdulaziz Yari were sacked. Also, Dino Melaye of Kogi State, David Umar of Niger State, Dayo Adeyeye of Ekiti State, Emeka Ihedioha of Imo State and David Lyon of Bayelsa were dismissed by the Supreme Court. Also, results of the last elections are still being contested by many candidates, which have resulted in bitter political battles and legal struggles among competing parties candidates.
Meanwhile, the consequences of protracted election disputes are that the people’s welfare and good governance remain neglected and unattended to until the air of uncertainty is clear. Pundits have adduced these anomalies to the loopholes in the legal framework of the Electoral Act 2010 for the conduct of the polls in the country. The lacuna in the provisions of the extant Electoral Act 2010 (as amended), many say, is obsolete and inadequate to provide free and fair elections, as it appears to be outdated and ill-equipped to adequately address concerns that are at the heart of democracy.
These inadequacies prompted major stakeholders – INEC and the National Assembly – to embark on a retreat to chart a way forward. At a retreat, the review of the electoral legal framework, organised by the commission, European Centre for Electoral Support (ECES), and the International Foundation for Electoral Systems (IFES), INEC’s Chairman, Prof. Mahmood Yakubu, hinted that one of the crucial areas of reform in the electoral act is to deepen the deployment of technology in elections.
Earlier, Yakubu said the commission had received from the Senate Committee on INEC “A Bill for an Act to Amend the Electoral Act (No.6) 2010 and Related Matters, 2019.” The 26 clauses in the Bill, according to him, seek to amend several sections of the Electoral Act, ranging from the neutrality of electoral officials, compilation, display and storage of the voter’s register, legal recognition for electronic accreditation of voters, party primaries, and the nomination of candidates for elective offices by political parties.
Also included is a new provision to address the recurrence of the 2015 “Kogi conundrum,” where a governorship candidate died between the commencement of polls and the declaration of winner. Yakubu noted that the Kogi situation was not envisaged and was without any legal remedy under the constitution, the Electoral Act or even the commission’s regulations and guidelines.
“The new amendment also seeks to empower the commission to deepen the deployment of technology in the management of the voter’s register as well as voting and result collation processes,” he said.
INEC also proposed to the National Assembly that something should be done to address a situation where Returning Officers are compelled to declare winners under duress.
According to him, “With 809 pre-election petitions filled before the 2019 general election, the electoral legal framework should provide clear procedures for party primaries and consequences of violation.
“Similarly, the right under the law to file pre-election cases in different categories of High Courts often leads to what lawyers call “forum shopping” by litigants and conflicting judgments by courts of coordinate jurisdiction on the same case, sometimes even on matters already settled by superior courts.”
Yakubu also called for a new definition of ‘over-voting’ with emphasis on ‘accredited voters’ rather than the ‘number of registered voters’ in a polling unit. He noted that doing so would make the management of the margin of lead principle easier and considerably reduce, if not totally eliminate, the incidence of inconclusive elections and the cost associated with conducting supplementary elections.
“There are other critical areas of reform, one of which is to deepen the deployment of technology in elections,” he stressed. “Already, the commission has an electronic register of voters. It is time for a new legislation to remove all encumbrances to further deployment of technology in the electoral process, especially in the accreditation of voters and transmission of election results. This is very important to the preparations for especially the next general election.”
He noted that if the Bill is delayed, it would affect the formulation of regulations and guidelines as well as the review and publication of the manual necessary for the training of ad-hoc staff for elections.
Yakubu stated, “There is need to expedite the process, particularly because the Bill under consideration at this retreat is the one emanating from the Senate. The House of Representatives is working on its own Bill. Given the urgency of the situation, the two chambers of the National Assembly may wish to adopt the current Bill and to organise a joint public hearing for the passage of the amendments into law in earnest.
“This is more so because some of the far-reaching amendments proposed by the National Assembly would require the procurement of new equipment, training of election officials and piloting of new procedures ahead of the general election. Early and adequate preparation is critical.”
Yakubu also called for the expeditious passage of the “Bill for an Act for the Establishment of the National Electoral Offences Commission,” sponsored by Senator Abubakar Kyari and co-sponsored by Senator Ovie Omo-Agege.
“The nation can no longer afford to foot-drag on this important legislation which will provide the framework for dealing with impunity and brigandage in elections which are becoming more brazen; essentially, violators of electoral laws are not effectively prosecuted.”
On her part, Chair, House of Representatives Committee on Electoral Matters, Hon. Aishatu Dukku, hinted that in an effort to fix some of the problems in the electoral system, 41 clauses of the Electoral Act 2010, which are a consolidation of 10 member Bills, was duly amended by the 8th National Assembly and accordingly transmitted to President Muhammadu Buhari for his assent as required by law.
According to Dukku, “This process went back and forth four times in 2018 and early 2019 with the president citing his observations each time as reasons for declining his assent. The president in his letter declining assent to the Electoral Act (amendment) Bill addressed to the Speaker of the 8th Assembly also raised concerns on some section of the Bills.”
She said the country needed to look at the electoral system of developed democracies around the world to borrow a leaf.
“We need to look at how they were able to build trust in their electoral system such that it operates in such a manner that portrays the confidence people have in the system,” she said. “We need to also look into the system of our elections which is too cumbersome compared to that of developed countries around the world.”
Dukku advocated early voting and a system where a voter could get his ballot paper, vote, and mail it to appropriate channel. She frowned at the trend of contending political parties applying for review of judgments delivered by the Supreme Court as seen in the cases of governorship elections in Imo, Bayelsa, Kano, Kaduna, and Zamfara States.
“Undoubtedly, this trend will undermine our political process and may lead to chaos and a loss of confidence in our judicial process,” Dukku averred. “The need for the amendment of our Electoral Act 2010 becomes absolute necessity against the backdrop of election malpractice, widespread rejection of declared results by the people as well as loss of lives and property that usually go along with such electoral flaws.”
On his part, Lagos State Resident Electoral Commissioner (REC), Mr. Sam Olumekun noted that the establishment of special electoral offences courts, with defined time frame for prosecution, would ensure speedy administration of justice.
“In Lagos State, we had a matter that lasted for eight years,” he said.
He also submitted that the commission should critically examine the issue of conflict of interest amongst the external solicitors that represent petitioners, adding, “The commission should ensure that such solicitors do not represent any petitioner throughout the period of election petitions in the tribunals and courts of competent jurisdiction.”
Chairman, Senate Committee on INEC, Senator Kabiru Gaya, expressed hope that the repeal and re-enactment of the Electoral Bill would inject better ideas into the electoral system, especially in areas that could undermine the process of free, fair and credible elections.
“The committee strongly believes that the review of the Electoral Act will build citizens’ confidence, enhance transparency and credibility of the electoral process,” Gaya noted. “It will also entrench internal democracy within the political parties, reduce violence, expand the political scope to include women, youth and people living with disability.”
On his part, Deputy President of the Senate, Ovie Omo-Agege, hinted that the review of the 1999 constitution, which the NASS had commenced, would impact on the electoral reform exercise. He added that the National Assembly has a unique constitutional gatekeeping role for the country’s democracy.
“That sacrosanct constitutional duty of protecting our democratic order starts with ensuring that we provide the right electoral legal framework for the conduct of free, fair and credible elections by the commission,” he stressed. “Ultimately, our collective success as a constitutional democracy depends on truly credible electoral outcomes.
“Without question, the 9th National Assembly is firmly committed to electoral reform. We recognise across party lines that it is in our nation’s best interest to work together to strengthen our electoral laws and, consequently, better protect this very important and consequential democracy on the African continent.”
He assured the public that the Senate would shun all forms of selfish interest and do the needful, “For the sake of posterity, and far beyond selfish interests, it is our solemn duty as statesmen, patriots and good citizens to do this for our nation and her citizens, and it will be done by the grace of God.”
Representative of International Foundation for Electoral Systems, Hermann Thiel, noted that globally, legislators and electoral administrators are facing new challenges to the credibility and legitimacy of electoral processes.
“As technology changes, and as stakeholders find ways around the laws to further their electoral ambitions, legislators and election administrators have to constantly review laws to protect the credibility and legitimacy of electoral processes,” Thiel said. “Electoral legislation is important and is a key element of credible and genuine elections. We all know of examples, throughout the world, of elections that were conducted with less than optimal laws but led to credible election results, and of elections where courts ruled that elections were not credible even with good laws in place. Despite these examples, we also know that good legislation can help make the process more credible for all stakeholders.”
Project Coordinator, European Centre for Electoral Support (ECES), Maria-Theresa Mauro, noted that the necessity to modify laws become an imperative, especially when new technologies are discovered and introduced or when deadlines prove to be in contrast with logistics and operational requirements and needs or when the main beneficiaries – the voter’s express dissatisfaction with the electoral process.
“Electoral laws, as all laws, are not written in stone,” Mauro stated. “They are made by humans and those can change them. Modifying a legal framework has to be seen as a natural phenomena. In fact, the modification, alteration or introduction of new articles does not mean to discredit the current framework but to ameliorate it, so that the institution responsible to administer and conduct elections can better serve the voters, and by extension, the citizens.”
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