Everything you need to know about Nigeria’s electoral law as amended
Apart from the recently passed and assented PETROLEUM INDUSTRY ACT, 2021, the ELECTORAL ACT 2022 is no doubt, probably the 2nd most controversially and widely anticipated law of modern Nigeria. This is because of its importance to every Nigerian and every resident of Nigeria whose economic and socio-political fates are inextricably tied to the policies, actions and inactions of those who get elected to various political positions pursuant to the Electoral Act. Due to many inherent pitfalls, the need for an outright repeal of the now-repealed ELECTORAL ACT NO. 6 of 2010 as amended (herein called the old Act) arose as soon as it was assented to in 2010 or perhaps, even earlier. These lapses that saturated the said old Act were there for all to see; many courts including the Supreme Court of Nigeria consequently relied on it to pass judgments that many Nigerians are arguably not proud of.
It is therefore in a bid to cure those manifest absurdities occasioned by the old Act and to bequeath to Nigerians, electoral legislation that better addresses those loopholes in the old Act that the 8th Nigeria National Assembly led by Senator Bukola Saraki enacted the Electoral Act 2010 (Amendment) Bill of 2018 and sent to the President for assent ahead of the 2019 elections but unfortunately, the President withheld his assent and the National Assembly was unable to veto him; thereby leaving the Independent National Electoral Commission (INEC) with no choice than to conduct the 2019 election with the troubled Electoral Act No. 6 of 2010.
In 2021, the 9th National Assembly under Ahmed Lawan after some alterations yet again represented the Electoral Bill 2021 to the President who after consultations with his justice minister and other stakeholders yet again withheld his assent and rather pointed out inter alia his discontentment with the abolition of indirect primaries and consensus candidature in favour of direct primary. Following his withholding of assent and being unwilling or unable to veto the President, the National Assembly simply axed the ‘offending’ provisions and represented the same to the President who eventually reluctantly signed same on the 25th day of February 2022 as the ELECTORAL ACT 2022.
What the new Nigeria’s electoral law means to the Nigerian electoral system
The innovations introduced by the newly assented Electoral Act 2022 (hereinafter called THE NEW ACT) largely presage a lot of possibilities to our electoral system; they give Nigerians reasons to be optimistic that at least, the INEC is now better empowered than ever before to carry out their constitutional mandate of conducting an election that is free, fair and credible. Amongst other things, the new Act introduced the following ten (10) novel sections of special interest.
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1. Early provision of funds – section 3(3): Although funding has never been an issue in the past, the new Act provides that funds for general elections must be released at least one year before the election. This provision has made certain, a time frame of one year within which INEC shall have funds made available to her for the purpose of aiding her early preparations of general elections.
2. Early submission of candidates’ names to INEC: Undersection 31 (1) of the old Act, not later than 60 days to the day of election was provided for political parties to submit their candidates’ list to INEC. Under the recent Nigeria’s electoral law, however, section 29 (1) provides for the same to be done not later than 180 days before the general elections. The enlarged time ensures that INEC is given more time to prepare and imprint candidates’ data on their sensitive materials ahead of the election. This is also particularly important because complaints of omission of parties’ logo or candidates’ name on the ballot paper by INEC was rife in the past which had regrettably led to the nullification of elections by courts.
3. Notices: The length of notices in the new Nigeria’s electoral law has also been increased by the new Act – publication of nominated candidates (increased from at least 30days before the election to 150 days before the election) see section 32 (1) of the new Act; communication of nominated candidate’s withdrawal by a political party to INEC (from not later than 45day to election to not later than 90days before the election) see section 31 of the new Act; INEC’s notice of election (from not later than 90 days to not later than 360 days). The implication of the foregoing increment of time for notices is that INEC is also given more time to prepare and to adjust to any unforeseen change in plan.
4. Replacement of a candidate that dies during an election – section 34: Perhaps, section 34 of the new Nigeria’s new electoral law introduced one of the most interesting innovations into our electoral system. It gives political parties the power to conduct a primary election to replace a candidate who dies during an election. The proviso to the section is even more innovative. It provides thus: “…provided that in the case of Presidential or gubernatorial or Federal Capital Territory Area Council election, the running mate shall continue with the election and nominate a new running mate.” The foregoing proviso is particularly important because of the Kogi State dilemma of November 2015.
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Prince Abubakar Audu (APC) had taken a commanding lead over the then incumbent governor, Captain Idris Wada (PDP) in the then-ongoing 2015 Kogi State gubernatorial election. Due to the irregularities that trailed the election, voting was cancelled in 59 polling units, a development that led to the declaration of the election as inconclusive. However, before the announcement of the results of the rescheduled election, Prince Audu died thereby throwing the election into a constitutional crisis.
Attempts up to the Supreme Court by his then running mate, Hon. James Abiodun Faleke, to inherit Audu’s position/votes were futile as the APC preferred another person over him and eventually replaced late Audu with the current Governor, Yahaya Bello to Faleke’s utter disappointment. Section 34 of the new Act has therefore laid to rest, a controversy such as the November 2015 Kogi’s.
5. Legal backing to the use of smart card readers – section 47: another innovation introduced by the new Act which is commendable is giving legal backing to the use of smart card readers or other technological devices that may be deployed by INEC to accredit and authenticate voters’ record.
Recall the in WIKE V PETERSIDE & ORS (2016) LPELR – 40036 (SC), the Supreme Court had sadly rejected the use of smart card readers in favour of the use of the manual Register of Voters. Legally speaking, the position of the Supreme Court in the case was quite understandable. The old Act in section 49 (2) only made provisions for the Register of Voters and as necessary as it might be, it was not the duty of the courts to introduce the technological innovations through its judgment. That NYESOM WIKE (PDP) was the governor of Rivers State between 2015 and 2019 was largely thanks to the preference of their lordships of Register of Voters ahead of smart card readers. The new Act has now also settled this area and taken further steps to technically discard the (manual) register of voters.
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6. Proof of overvoting – section 51: proof of overvoting and the consequence of same have been made a whole lot clearer by the new act which empowers the presiding officer to cancel the results of any polling unit which produce a number of votes that exceed the number of accredited voters.
7. Electronic transmission of results – section 50: Although section 50 did not specifically mandate INEC to transmit results electronically, the new Nigeria’s electoral law nevertheless left the window wide open for INEC to determine whether it would transmit results electronically or not. If implemented, this would be sure, one of the most interesting innovations of the new Act.
It is worthy of note that this feature has already been experimented with during the 2021 Anambra State gubernatorial election and many Nigerians including myself who followed the innovation welcomed the idea. Real-time electronic transmission of results would go a long way to minimising the incidences of forcing electoral officials at gunpoint to write results in favour of a party at collation centres. It will also reduce the propensity of INEC staff to be induced into altering results knowing that the results are already at the central database and perhaps, within the public domain where INEC chooses to share its portal with the public as was done during the Anambra election.
8. Provisions for persons that are abled differently – section 54: The new Nigeria’s electoral law made provisions for special people that constitute part of the voting populace who are abled differently or with special needs to be able to vote independently and without interferences of others and were otherwise impossible, to be assisted in such a manner that their wishes are respected. For instance, the new act provides for braille or an enlarged picture of parties’ logos for visually impaired voters.
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9. INEC’s power to review results declared under duress – section 65: Prior to the new Nigeria’s electoral law, the law was that once an election result is declared, it can only be reversed by an Election Petition Tribunal and not INEC. As a result of this old position, unscrupulous politicians coerce INEC staff at gunpoint to declare them winners and would be happy to meet the opposing candidate (who could have even been the real winner) in court.
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For instance, in 2019, INEC withheld the certificate of return of Senator Rochas Okorocha of Imo West Senatorial District on the ground that the Returning Officer was forced to declare him (Rochas) winner of the Imo West Senatorial Election. Rochas sued INEC claiming that INEC had no powers to withhold his result regardless of the alleged duress. In his ruling, Hon. Justice Okon Abang of the Federal High Court, Abuja, berated INEC for withholding the said certificate of return and further declared that it was only the court, not INEC that could make an order nullify an election once it has been declared. Under the current Act, INEC would have had the power to nullify the said election within 7days regardless of the earlier declaration.
10. Disqualification of political appointees from voting in a primary election – section 84 (10): the new Act, plausibly in a bid to ensure that the sitting chief executives do not deploy their armies of appointees to vote according to their instructions, made a provision disqualifying appointees from voting. As well thought out as this section appears to be, I am not a fan of it. This is because I am convinced that it is downright unconstitutional and leaves a loophole that is a recipe for a deluge of the potential of litigations.
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Section 40 of the 1999 Constitution of the Federal Republic of Nigeria as amended provides that “Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests”. It is therefore difficult to see how this section does not impede on the political appointees’ right to not just belong to a political party but also to participate in the party’s political activities including the primary elections. The foregoing section is perhaps, the only flip to what is otherwise a very commendable masterpiece by the 9th National Assembly.
From the foregoing, it is beyond doubt that many innovations introduced by the 2022 ELECTORAL ACT some of which are already discussed above, if implemented bode well for Nigeria’s electoral system. There is a popular cliché that Nigeria is good at making policies but very poor at implementing them. We hope that this is not the case this time around because Nigeria’s economic redemption largely lies in her political class. Getting our electoral process right by electing credible, capable and patriotic individuals into political offices is the stepping stone to getting Nigeria working again – the legal framework has arrived; it is left for Nigerians to arrive with it.