Retooling Electoral Act for transparent primaries, free and fair polls
Getting a practical Electoral Act to moderate elections remains one particular way through which politicians wage secret battles against credible polls in Nigeria. Observers have said that Nigerian politicians are selfish and hypocritical because their greatest preoccupation is how to hold unto power at all times, by all means, without minding whose ox is gored. This is obvious by their actions and inactions that have always lacked patriotism and altruism since the return of democracy in 1999. They are desperate and can do anything including manipulating the laws to suit their interests at the expense of other Nigerians.
The above narrative captured what happened in the amendment of the 2006 Electoral Act ahead of the 2011 general elections. Ahead of 2011 general elections, National Assembly members amended the 2006 Electoral Act, which was signed into law by President Goodluck Jonathan and it became 2010 Electoral Act as amended. This 2010 Electoral Act as amended was used for party primaries and general elections in 2011.
After the Act was signed into law, the then INEC Resident Electoral Commissioner in Cross River, now in Akwa Ibom, Mr. Mike Igini raised the alarm over some sections inserted into the 2010 Electoral Act by the lawmakers that will stifle free and fair primaries in political parties and castrated the polls body from performing its function as an unbiased umpire during party primaries.
Speaking on the 2010 Electoral Act amendment in Abuja, Igini said the electoral process was in danger, stressing that top officials of INEC, including the then chairman, Professor Attahiru Jega, have just discovered that when they approached the National Assembly for amendments to enable the body shift the 2011 elections to April, extraneous clauses were inserted to render it ineffective.
According to Igini, the amendments have led to “castration of INEC,” making it unable to enforce internal democracy in various political parties. In a one page address titled: “Amended Electoral Act 2010: The Death Of Section 87 (9) And The Internment Of Internal Party Democracy,” he said: “It is noteworthy that as an electoral management body, INEC has been working under legal uncertainty as the Electoral Act was undergoing amendment being the guiding statute for conducting electoral processes. However, having perused within the last 24 hours the gazetted copy of the Electoral Act, 2010 of December 29 as amended, it has become clear that the dictatorship intent in elitism has triumphed over the overarching pluralism that Nigerian people clamour for in matters of internal democracy.
“To be clear, Section 87 (9) of the preceding Electoral Act, 2010 clearly underscored the inherent ability of INEC as a commission to arbiter timeously on contentious party nominations which do not follow stated party guidelines by specifying in Section 87 (9) of the old Electoral Act that: ‘Where a political party fails to comply with the provisions of this Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue.
“Whereas, in the amended Electoral Act, 2010, this provision has been expunged by the lawmakers; more significantly, to nail the coffin of Section 87 (9), the lawmakers introduced a new provision to Section 31 (1) which completely strips INEC of any say in the matter of disqualification of nominees submitted by political parties. This new provision states that: ‘Every political party shall, not later than 60 days before the date appointed for a general election under the provisions of this Bill, submit to the commission in the prescribed forms, the list of candidates the party proposes to sponsor at the elections, provided that the commission shall not reject or disqualify candidates for any reasons whatsoever.
“By using this blanket phrase ‘any reasons whatsoever’, the lawmakers have stripped INEC, the supposed umpire, of the ability to determine the qualification or status of any candidate submitted by a party, irrespective of any circumstances surrounding a candidate’s status, the party now dictates, how, who and why a candidate can contest in an election in which they are participating, even if INEC has doubts, it must seek legal interpretation in a court that has no timeline and cannot stop a party’s candidate from taking part in an election conducted by INEC.
“This is akin to a referee being asked to play the role of a spectator regarding who participates in an election. This development can only spell doom for internal democracy of parties which, as we all know, has been the primogeniture crisis for much of the conflict that has bedeviled development of parties and therefore the development of a sustainable democratic culture in our country because an open elitist field only selects candidates who have in most cases, not gone through proper party democratic approbation, as we are currently witnessing in the crises within most parties.
“When such candidates pass through such imposition, they also hope to go through the main elections by violent or forceful means. Any wonder why we have to constantly manage politicians who want to win at all costs at great cost to the public finances? Sadder still is the fact that this rape on the democratic process was enabled by lawmakers many of whom are now victims because over 50% of them are unlikely to return and have become casualties of the undermining of the pluralist controls which were inherent on INEC and the courts and which has been stripped without any time frames for remedial actions by section 31(1) and 87(10) of the new Electoral Act 2010.”
An example that played out in 2011 was that of Kano State Congress for Progressive Change (CPC) governorship candidate. Though INEC maintained that the Kano CPC gubernatorial primary election was won by Mohammed Sani Abacha, who polled the highest votes, the party insisted on fielding the name of retired Colonel Lawal Ja’afaru Isah as its candidate. The commission had no choice and after some show of resilience, caved in to pressure and legal handicaps by accepting the name of Isah. Invariably and by implication, a party can forward the name of a candidate who never even contested in the primary election.
While Igini’s alarm was of importance and concern then, nobody, including the lawmakers and prominent Nigerians took him seriously. That was how and why political parties used all sort of undemocratic means to choose their candidates for the 2011 elections and INEC accepted it. Because of the experience and challenges posed by some provisions of the 2010 Electoral Act, INEC ahead of the 2015 general elections, made strenuous effort by submitting proposal for amendments to the National Assembly.
Speaking on the provisions in the 2010 Act that require urgent amendments, the then INEC chairman, Professor Attahiru Jega, said: “With regards to political party primaries and the nomination of candidates, there is a provision in the 2010 Electoral Act which actually creates conflict and confusion in terms of ensuring and regulating internal party democracy.
“Section 31 of the Electoral Act says when a party does a primary and submits the name of the candidate to INEC, INEC should not reject that name submitted by the party. Then, there is Section 87 of the same Electoral Act which states that candidates of the political parties should emerge through democratic process.
“Now both the Electoral Act and the constitution have mandated INEC to monitor political party primaries. So any time a political party conducts primary, we send people to monitor – we hear different reports of how it happened – to see whether they have complied with the party’s constitution, to see whether they have complied with the Electoral Act and to see whether they have complied with the constitution.
“In 2011, we had situations when we would send monitors, they would come and produce a report. We would know who emerged in the primary through democratic means, as Section 87 of the Electoral Act says, but the names that the parties send to INEC were totally different.“Some of them, for example, will ignore number one and send number three, or they will even ignore the list and send somebody who does not even participate in the primary and of course a provision in the Electoral Act created that ambiguity and confusion and there is nothing we could do. If we did not accept, they would accuse us of interfering in the internal activities of political parties.”
But unfortunately and for reasons best known to the politicians, efforts by the National Assembly members to amend the 2010 Electoral Act ahead of 2015 elections failed, following President Goodluck Jonathan’s failure to sign the bill into law at the appropriate time. This made political parties and INEC to rely on the provisions of 2010 Electoral Act to conduct party primaries and the 2015 general elections.
With less than seven months to the 2019 general elections, President Muhammadu Buhari has not signed the 2018 Electoral Bill as amended, which has been before him for sometime now. This is despite the fact that by INEC’s timetable for the 2019 polls, party primaries commence on August 18, 2018 and ends October 7, 2018 for national and state elections while that of the FCT Area Council is slated for between September 4 and October 27, 2018.
This development calls for worry as there is a tendency that the bill may not be signed into law by Buhari before the commencement of party primaries on August 18. Whether Buhari’s failure to sign the bill is intentional or not is not known yet. If the bill is not signed into law before the parties’ primaries commence, it means that political parties and INEC will rely on the provisions of 2010 Electoral Act as amended to conduct their primaries and elections in 2019 respectively.
With this, political parties leadership will as usual manipulate their primaries by imposing and substituting candidates at will, while INEC will only bark, but cannot bite.Expressing concern over the delay, Igini said that political parties were about going into primaries to nominate candidates for the 2019 elections with the same 2010 Electoral Act that provides in Section 31 that “the list of the candidates that a party proposes to sponsor at the election, the commission shall not reject or disqualify candidates for any reason whatsoever.”
He said: “I am worried, if not disturbed that President Buhari may not be able to assent to the new 2018 Electoral Act that contains profound changes that would tremendously re-define the process of party primaries for the nomination candidates for the 2019 elections.“We are likely to have more of the same kind of primaries outcome lacking internal democracy that would engender rancour and disarray among party members. We have just few days to the commencement of the primaries across the nation and the governing Act is the extant one. lf (the proposed provisions contained in) the new bill is signed after these primaries, it cannot operate retroactively and so we might just be headed to utter chaos that bedeviled the 2015 elections.
“Already some parties have factional disputes, which are bound to be worsened if we don’t get the pending new Act awaiting the assent of the President. Remember that nothing has changed in terms of attitude and character of the political elites.”Speaking in the same vein to The Guardian, a political scientist and university teacher, Dr. Chuka Mboru, called on Buhari to quickly sign the pending 2018 Electoral Bill into law before the commencement of party primaries on August 18.
Mboru said: “Politicians are the problem of Nigeria. They are not selfless leaders. They are very manipulative and insincere. Nigeria needs paradigm shift in leadership recruitment. It is obvious that not signing the pending bill into law within the timeline will be to the advantage of the parties leadership that have always seen parties primaries as a means of making easy money and imposing candidates of their choice.“If they have realised that the new electoral bill will make them to conduct transparent primaries and INEC conduct free and fair elections, they will frustrate its signing and continue with business as usual.”
The Guardian investigations showed that some fundamental changes that will guarantee free and fair primaries and elections by political parties and INEC were made in the pending Electoral Act No.6 2010 (Amendment) Bill 2018 waiting for Buhari’s assent. Highlights of some of the amendments include-There shall now be full biometric accreditation of voters with Smart Card Readers and/or other technological devices, as INEC may introduce for elections from time to time. Presiding Officers must now instantly transmit accreditation data and results from Polling Units to various collation centers. Presiding officer who contravene this shall be imprisoned for at least 5 years (no option of fine). All Presiding Officers must now first record accreditation data and polling results on INEC’s prescribed forms before transmitting them. The data/result recorded must be the same with what they transmitted.
INEC now has unfettered powers to conduct elections by electronic voting. Besides manual registers, INEC is now mandated to keep Electronic registers of voters. INEC is now mandated to publish voters’ registers on its official website(s) for public scrutiny at least 30 days before a general election and any INEC staff who is responsible for this but fails to act as prescribed shall be liable on conviction to 6 months’ imprisonment. INEC is now mandated to keep a National Electronic Register of Election Results as a distinct database or repository of polling unit by polling unit results for all elections conducted by INEC. Collation of election result is now mainly electronic, as transmitted unit results will help to determine final results on real time basis. INEC is now mandated to record details of electoral materials – quantities, serial numbers used to conduct elections (for proper tracking).
Others include-A political party whose candidate dies after commencement of an election and before the declaration of the result of that election now has a 14-day window to conduct a fresh primary in order for INEC to conduct a fresh election within 21 days of the death of the party’s candidate. Political parties’ polling agents are now entitled to inspect originals of electoral materials before commencement of election and any presiding officer who violates this provision of the law shall be imprisoned for at least one year. No political party can impose qualification/disqualification criteria, measures or conditions on any Nigerian for the purpose of nomination for elective offices, except as provided in the 1999 Constitution.
The election of a winner of an election can no longer be challenged on grounds of qualification, if he (winner) satisfied the applicable requirements of sections 65, 106, 131 or 177 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and he is not, as may be applicable, in breach of sections 66, 107, 137 or 182 of the Constitution of the Federal Republic of Nigeria, 1999. For example, a person’s election cannot be challenged on the ground that he did not pay tax as this is not a qualifying condition under the Constitution. All members of political parties are now eligible to determine the ad-hoc delegates to elect candidates of parties in indirect primaries. The capacity of party executives to unduly influence or rig party primaries has been reasonably curtailed, if not totally removed. Parties can no longer impose arbitrary nomination fees on political aspirants.
The bill passed prescribes limits for each elective office as follows: (a) One Hundred and Fifty Thousand Naira (N150, 000) for a Ward Councillorship aspirant in the FCT; (b) Two Hundred and Fifty Thousand Naira (N250, 000) for an Area Council Chairmanship aspirant in the FCT; (c) Five Hundred Thousand Naira (N500, 000) for a House of Assembly aspirant;(d) One Million Naira (N1, 000,000) for a House of Representatives aspirant; (e) Two Million Naira (N2, 000,000) for a senatorial aspirant; (f) Five Million naira (N5, 000,000) for a gubernatorial aspirant; and (g) Ten Million Naira (N10, 000,000) for a presidential aspirant.
Relying on the powers of the National Assembly in Paragraph 11 of Part II (Concurrent Legislative List) of the Second Schedule (Legislative Powers) to the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Senate also passed measures reforming procedures regulating Local Government Elections. State Independent Electoral Commissions can no longer conduct elections that do not meet minimum standards of credibility. Any INEC official who disobeys a tribunal order for inspection of electoral materials shall be imprisoned for 2 years, without an option of a fine and several others.
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