Introduction: The release of the Electoral Time Table by the Independent National Electoral Commission (INEC) marks the official commencement of the 2011 elections. Nigeria and Nigerians are therefore on the path and threshold of history. It may be a history of rejuvenation or a history of damnation. It may be a history of repositioning or a history of reversal. It may be a history that Nigerians will be proud to refer to or a history that makes them bow in shame. It may also be a history couched in inchoate terms. Whichever way it goes, electoral history will be made by Nigeria and Nigerians.
The Tuesday, 7th September, 2010 release of the electoral time table no by the Independent National Electoral Commission no doubt provoked mixed and varied reactions from Nigerians and the International Community. Some saw the time table as too “loaded”, restrictive, full of landmines, booby traps and impossible to accomplish. Other Nigerians called for understanding, prayers and a rejuvenation of the “Nigerian” spirit to withstand the challenges posed by the “loaded” timetable and accomplish its intendments.
However, the Electoral Time Table throws up fundamental Constitutional, legal, moral, practical and strategic challenges that must be addressed ahead of the elections. This will enable policy makers and the different stakeholders plan ahead and map out strategies and tactics of addressing the impediments and at the end deliver credible elections. It will also make them take precautionary steps and avoid pitfalls and landmines that may derail the march to free, fair and credible elections. This is said against the background of the complexities of the electoral process which is akin to the complexities of human existence and the complexities of life. In all, stakeholders in the electoral process should strive towards elevating elections in Nigeria and the electoral process to international standards and doing things differently to avoid the same pitfalls and mistakes. Mistakes will be made no doubt. Elections will be rigged. Some people will try to corrupt the electoral process despite the sanctions. We can with the requisite knowledge and political confront them If we understand their tactics and strategy and plug the loopholes they exploit. By so doing, the 2011 elections may be “qualitatively different” from the 2007 elections and at the end Nigeria may have a semblance of free, fair and transparent elections in 2011.
The Release of the Electoral Time Table
The release of the Electoral Time Table is a Constitutional and legal process. The Law and the Constitution prescribe the time and the period for the release of the time table and the Independent National Electoral Commission does not have discretion whether or not to release the time table. The release of the time table at the time it was done was based strictly on the change in the timing of elections effected by the National Assembly in the amendments to sections 76(2), 116(2), 132(2) and 178(2) of the 1999 Constitution.
By the said amendments, National and State Assembly elections shall not be held earlier than one hundred and fifty (150) days and not later than one hundred and twenty (120) days before the date on which the House stands dissolved. Presidential and Governorship elections shall also be held on a date not earlier than one hundred and fifty (150) days and not later than one hundred and twenty (120) days before the expiration of the term of office of the last holder of that office. The combined effect of the provisions of the Constitution is that the Commission must conduct all the elections it is empowered by law and the Constitution to conduct in the month of January 2011.
Furthermore, by the provisions of section 30 of the Electoral Act, 2010, the Commission shall, not later than 90 days before the day appointed for holding of an election under the Act, publish a notice in each State of the Federation and the Federal Capital Territory stating the date of the election and appointing the place at which nomination papers are to be delivered.
If the timelines are restrictive, cumbersome, loaded and impossible to operate, it is the duty and responsibility of the National and State Assemblies to make the necessary adjustments. It is not the duty of the Independent National Electoral Commission to make laws. Their duty is to operate and act within the ambit and confines of the law to deliver credible elections.
The fundamental question however is whether the Independent National Electoral Commission can in good conscience deliver credible elections in 2011 given the period of its reconstitution and the myriad of activities it must accomplish ahead of the elections. Put differently, can the Electoral Management Body reorganise its operations, weed out its personnel with expertise in rigging elections, set the basis for the conduct a credible voters registration exercise, monitor the primaries and operations of political parties and conduct free, fair and transparent elections given the timelines already released to the public? These are the challenges that confront all stakeholders in the electoral process and we must confront the challenges and do what is right for the Nigerian people.
The Electoral Time Table and 1st Amendment.
It is now official that National Assembly elections will hold on the 15th day of January 2011, Presidential Elections on the 22nd day of January 2011 and Governorship and State Assembly Elections on the 29th day of January, 2011. Before the 1st amendment, election to each House of the National Assembly and the State Assemblies are held not earlier than sixty days before and not later than the date on which the House stands dissolved and on a date not earlier than sixty days and not later than thirty days before the expiration of the term of office of the last holder of that office in respect of Presidential and Governorship elections.
The challenge facing Nigerians is on the constitutionality of the 1st amendment to the 1999 Constitution. The National Assembly is emphatic that the 1st amendment to the Constitution is already in force while some legal practitioners and the Attorney General of the Federation insist that such an amendment can only come into force after a Presidential assent.
Presently, there are a myriad of cases in different courts of law challenging the constitutionality of the 1st amendment to the 1999 Constitution. None of the cases has been heard and none has been determined. If the Courts determine that the 1st amendment can only be operative after a Presidential assent and elections have already been conducted it means that the entire edifice on which the conduct of the election was based would collapse.
If on the other hand, the Courts hand in their decision to the effect that the 1st amendment is inoperative without presidential assent mid way to crucial time lines and there is no plan B, then there will be confusion.
There is also the possibility that the challenge to the constitutionality of the 1st amendment may go up to the Supreme Court of Nigeria and finally determined one or two years into the life of the regime that may come into force in 2011. Whichever way the decision goes, the electoral process will be enveloped in a crisis of legitimacy and anxiety.
Furthermore, if the Courts also determine that the amendment to sections 182(2) of the 1st amendment relating to re-run elections cannot take a retrospective effect and that the 2nd Oath of Allegiance and Oath of Office taken by the Governors of Sokoto, Ekiti, Adamawa, Bayelsa, Kogi and Cross River State is not a re-affirmation of the 1st Oath of Office and elections are conducted in the said states, the Courts will declare such elections as null and void and all the efforts made and energy expended in conducting and organising such elections would come to nothing.
What is to be done?
1. The different suits and matters challenging the legitimacy and constitutionality of the 1st amendment to the 1999 and those challenging the resolve of the Independent National Electoral Commission to conduct elections in places where re-run elections took place and the incumbents were returned to power should be consolidated and referred to the Court of Appeal for determination. This will abridge the time and period for their determination so that appeal can go straight to the Supreme Court.
Conduct of Party Primaries
By the Time Table, Party Primaries are to be conducted between September 11, 2010 and 30th October 2010. This is in accordance with the provisions of section 87 of the Electoral Act, 2010.
By the provisions of section 85 of the Electoral Act, 2010 a Political Party wishing to conduct any convention, congress, conference or meeting for the purpose of electing members of its executive committees, other governing bodies or nominating candidates for any elective office specified in the Act, shall give the Commission 21 days notice.
Section 87 deals with the nomination of candidates. Such nominations shall be through primaries for all aspirants to all elective positions. The procedure for election to the various positions shall be by direct or indirect primaries. A party that adopts the procedure of direct primaries shall ensure that all aspirants are given equal opportunity of being voted for by members of the party.
In the case of Indirect Primaries, a Presidential candidate can only emerge through a Special Convention in each of the 36 States of the Federation and the Federal Capital Territory, where delegates shall vote for each of the aspirants at designated centres in each State capital on specified dates. Thereafter, a National Convention shall be held for the ratification of the candidate with the highest number of votes. The aspirant with the highest number of votes shall be declared the winner and his name forwarded to the Independent National Electoral Commission.
Special Congresses shall also be held in the case of Governors, Senatorial, House of Representative and House of Assembly aspirants in the Local Government Areas for Governors and in the Senatorial Districts, Federal Constituency and State Assembly Constituency with delegates voting at designated centres. The name of the candidate with the highest number of votes shall thereafter be forwarded to the Commission as the candidate of the Party.
Where there is only one aspirant to the positions enumerated in section 87 of the Act, the Party shall convene a Special Convention or Congress at a designated centre on a specified date for the confirmation of such aspirant and the name of the aspirant shall be forwarded to the Commission as the candidate of the Party.
Furthermore, by the provisions of section 87(7) of the Act, a Political Party that adopts the system of indirect primaries shall clearly outline in its constitution and rules the procedure for the democratic election of delegates to vote at the convention, congress or meeting. This excludes political appointee at all levels that are excluded from being voting delegates at the Convention or Congress of any political party for the purpose of nomination of candidates for any election
Where a Political Party fails to comply with the provisions of the Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue. An aspirant can however approach the Federal High Court or the High Court of a State to seek redress for violations of the rules for the conduct of Party primaries.
However, section 87(11) outs the jurisdiction of Courts to stop the holding of primaries or general election under the Act pending the determination of the suit.
Furthermore, by the provisions of section 31(1) of the Act, every Political Party shall not later than 60 days before the date appointed for a general election under the provisions of the Act, submit to the Commission in the prescribed forms the list of the candidates the party proposes to sponsor at the elections. A nominated candidate may by notice in writing signed by him and delivered by himself to the political party that nominated him for the election withdraw his candidature and the political party shall convey such withdrawal to the Commission not later than 45 days to the election.
Fundamental issues arise from the provisions of the enumerated sections. The first is that most of the political parties do not have real expertise and experience in the democratic election of their candidates. The spectre of Godfathers and imposition of candidates prompted the National Assembly to more or less outlaw consensus candidature and the production of the list of candidates from the bedroom of godfathers and Governors. The primaries will task the ability of the parties and show whether internal democracy can grow and take root in some of the parties.
The time line for the primaries is also problematic because if a primary election collapses on account of disruption by individuals or groups and does not meet the requirements of INEC it may be difficult for the party to start afresh, conform to the 21 day notice to the Commission for the holding of the primaries and also beat the 60 day deadline for the submission of nomination forms. If a political party goofs or attempts to cut corners with its primaries, it may end up not fielding any candidate and this means that the political party is out and out completely.
Section 87(7) of the Law poses fundamental challenges. By the provisions of section 222(c) of the 1999 Constitution, no association by whatever name called shall function as a political party, unless a copy of its constitution is registered in the principal office of the Independent National Electoral Commission in such form as may be prescribed by the Independent National Electoral Commission. This means that the party Constitution registered with the Independent National Electoral Commission is the Constitution to be used in the conduct of Party Primaries which “shall clearly outline in its constitution and rules the procedure for the democratic election of delegates to vote at the convention, congress or meeting.”
By article 12.40 of the Constitution of the Peoples Democratic Party (PDP) the State Congress is also made up of Ambassadors, who are members of the Party from the State and Special Advisers and Special Assistants to the President and Vice President who are members of the Party from the State. These categories of persons are entitled to vote for the parties candidates in accordance with Article 17 of the Constitution of the Peoples Democratic Party.
The point of contention is whether section 87(7) of the Electoral Act, 2010 is superior to section 221(c) of the 1999 Constitution which has not been amended and which is an existing law. It seems to me that making fresh rules to provide for Special Conventions in the States where none was provided in the Constitution of Political Parties deposited with the Commission is ultra vires. It also seems to me that section 87(8) of the Electoral Act, 2010 that excludes political appointees from voting and being delegates at the Convention of Political parties is also ultra vires.
Section 87(9) of the Electoral Act, 2010 is also problematic. It allows the Commission to reject the candidate of a political party that does not meet the provisions of section 87 of the Act. The section does not specify how this can be done and whether the Commission can advise the Party to conduct fresh primaries and whether such can be done within the prescribed time lines. This is said against the background of the fact that the moment the Electoral Management Body gets involved in the qualification and disqualification of candidates, it gets sucked into the politics of the parties and this diverts its attention from the main task of conducting elections.
Section 87(11) also provides that nothing in section 87 shall empower the Courts to stop the holding of primaries or general election under the Act pending the determination of any suit filed challenging anything relating to section 87 of the Act.
The events of 2007 are still fresh in our memories when the exclusion of candidates and whether the Commission has the power to disqualify or exclude candidates almost brought the 2007 elections to grief. The lawmakers ought to have left the issue of qualifications and disqualifications to the Courts and the Tribunals and also bear in mind the fact that the 1999 Constitution has covered the field on the qualification and disqualification of candidates.
What is to be done?
1. The National Assembly should expunge the provisions of section 87(9) of the Electoral Act that gives the Independent National Electoral Commission the power to exclude candidates of political parties that fail to comply with the provisions of the Act in the conduct of its primaries as it conflicts with the provisions of sections 65, 66, 106, 107, 131,137, 177 and 182 of the Constitution relating to qualification and disqualification of candidates to the National and State Assemblies, Governorship and Presidential candidates. The National Assembly cannot impose additional qualifying and disqualifying criteria that conflicts with what the Constitution has already provided.
2. The National Assembly should expunge the provisions of section 87(11) which outs the jurisdiction of Courts from stopping the holding of primaries or general election under the Act as it is in conflict with the provisions of section 4(8) of the Constitution which provides that the exercise of legislative powers by the National Assembly or by a House of Assembly shall be subject to the jurisdiction of Courts of law and of judicial tribunals established by law, and accordingly, the National Assembly or a House of Assembly shall not enact any law that outs or purports to oust the jurisdiction of a court of law or of a judicial tribunal established by law. Section 87(11) also conflicts with sections 6(6) of the Constitution on the inherent powers of Courts established by the Constitution.
3. Political parties should strive to conduct their party primaries in a democratic, orderly and peaceful manner. They must shun violence and all acts that are capable of sending the wrong signal to investors and the International community that political parties in Nigeria are incapable of internal democratic reordering and leading the way to a new Nigeria. Candidates that are dissatisfied with the conduct of primaries should utilize the provisions of the law to seek redress in Court rather than resort to extra judicial and extra constitutional means that may throw up unintended consequences with huge implications for the survival of democracy.
4. Civil society groups and organisations should study and analyse the Constitution of all registered political parties and monitor their compliance during their direct or indirect primaries.
5. The Nigerian media should acquaint themselves with the provisions of the 1999 Constitution(as amended) and the Electoral Act, 2010 to enable them educate and inform Nigerians on issues in the Constitution and the law and assist the Nigerian people organise credible elections. The media must also be fair to all aspirants and not profile candidates to the advantage of a particular candidate.
Voter’s registration is a constitutional and statutory matter. Prior to the coming into force of the Electoral Act 2010, section 10(5) of the Constitution mandates the Independent National Electoral Commission to carry out the registration of voters, updating and revision of the register of voters not later than 120 days before any election covered by the Act. Section 9(5) of the Electoral Act, 2010 has reduced the period from 120 days to 60 days. This means that voter’s registration and everything connected with the voters register must end in the month of November 2010 and the Commission must certify the register by December 2010.
The concern here is that Nigeria is embarking on a fresh voter’s registration using the Direct Data Capture Technology. The DDC involves directly capturing personal particulars of voters including the name, age or date of birth, gender, address, occupation, thumbprints and photograph of every voters, using an electronic DDC device that stores the information and prints it out on a temporary voter’s card, which the registered voter collects immediately.
Unfortunately, the DDC cannot be used successfully at the moment to track fraudulent practices by registrants and political parties. This is because the National Assembly refused to consequentially amend the provisions of section 52(2) of the Electoral Act, 2010 which provides that “the use of electronic voting machine for the time being is prohibited”. This means that the voters’ card cannot really be used to track any fraud until the National Assembly resolve to embrace technology to track and apprehends fraudulent politicians and their collaborators in the Electoral Management Body.
Moreover, the DDC machines are yet to be imported, the staffs that will operate them are yet to be trained and Nigerians are yet to be mobilized for the registration exercise. Is it then still feasible to expect that voters’ registration using the DDC technology will be carried out within then time frame provided and be ready for the 2011 elections? Will it not be an option to use the Optical Mark Registration (OMR) forms for the registration and do another registration after the 2011 elections using the DDC machines? These are options and adjustments that can be made considering the tight timelines embedded in the Constitution and the Electoral Act.
Nevertheless, we must have faith and assist the Electoral Management Body to succeed. We must also have the courage to make amendments or accept amendments to the Constitution and the law if it becomes impossible to conduct fresh voters’ registration and some of the activities within the time frame allowed by the law.
What is to be done?
1. The National Assembly should amend the provisions of section 52(2) of the Electoral Act, to give the Independent National Electoral Commission the discretion in making a decision as to when and how to use electronic voting machines for elections. It is superfluous to capture the biometrics of registrants and still conduct manual elections.
2. The National Assembly should do a thorough audit of the provisions of the Electoral Act, 2010 to correct mistakes that may prove costly to the electoral process. For instance, section 10(4) of the Electoral Act, 2010 provides that when a general election is notified by the Commission pursuant to section 31of the Act, the current official register of voters certified by the Commission shall be the official voters register for those elections. Section 31 of the Act deals with the submission of list of candidates for election and their affidavits by political parties while section 30 deals with the Notice of elections which section 10(4) refers to. It is instructive to note that it is section 31 of the Electoral Act, 2006 that deals with the notice of elections.
3. The Independent National Electoral Commission should make sure it does not register more than 500 persons at any registration unit as registering large number of persons in one unit makes the unit unwieldy and gives room for manipulation and inflation of votes. The Commission should also have the courage to proactively inform the Nigerian people if it becomes impossible to conduct the registration of voters using the DDC technology. What is important is to capture all eligible registrants in a transparent and credible manner whether such is through OMR forms or through DDC.
4. Religious leaders should use their different platforms to mobilize and sensitize the electorates on the advantages and imperatives of registering to vote at the 2011 elections.
5. The media, the political parties, the National Orientation Agency and the Independent National Electoral Commission should mount aggressive civic and voter education to re-engage the Nigerian people with the electoral process.
6. Political parties should on no account seek to influence, encourage or in any way register fictitious individuals, under age individuals or persons that are not qualified to be registered. In cases of infringement of the law, all those caught must be proceeded against and prosecuted in accordance with the law.
The Sequence of Elections
The sequence of elections is a function of the amendment to the provisions of section 26 of the Electoral Act, 2006. Under the provisions of section 26 of the Electoral Act, 2006, the Independent National Electoral Commission determined the sequence of elections and has a discretion on which election comes first.
With the coming into force of the Electoral Act, 2010, section 25(1) of the Electoral Act, 2010 provides that “Elections into the offices of the President and Vice-President, the Governor and Deputy Governor of a State, and to the membership of the Senate, the House of Representatives and the Houses of Assembly of each State of the Federation shall be held in the following order-
(a) Senate and House of Representatives;
(b) Presidential Election;
(c) State House of Assembly and Governorship elections.
The National Assembly should have allowed the Independent National Electoral Commission to fix the sequence of elections because they are constitutionally empowered to do so. It is also a dicey matter and a subject of great debate whether the amendments made are constitutional considering the fact that the third schedule to the Constitution empowers the Independent National Electoral Commission to organise, undertake and supervise all elections to the said offices.
The members of the National Assembly also cleverly removed the Senate and House of Representatives election from the bandwagon that may follow the Presidential elections. The Governorship and House of Assembly elections may respond to the bandwagon of the Presidential election as opposition has become a leprous disease in Nigeria. It would have been better to conduct all the elections in one day or schedule all the other elections except the Presidential election on the same day.
What is to be done?
1. The sequencing of elections is part of the constitutional responsibilities of the Independent National Electoral Commission to organise, undertake and supervise elections and this discretion should be left to the Commission. The law should be amended after the elections to restore this right to the Commission.
2. Civil society groups and the Nigerian media must educate the Nigerian people on the benefits of making informed choices during elections rather than relying on some mundane and opportunistic considerations in making choices.
3. Political leaders should allow democracy to flourish by allowing the Nigerian people to vote for leaders of their choice.
The Issue of Polling Agents
By section 45(1) of the Electoral Act, 2010 each Political Party may by notice in writing addressed to the Electoral Officer of the Local Government or Area Council, appoint a polling agent for each polling unit and collation centre in the Local Government/Area Council for which it has a candidate and the notice shall set out the name and address of the polling agent and be given to the Electoral Officer at least 7 days before the date fixed for the election.
Section 43(3) and (4) goes ahead to provide that the Polling Agents shall be entitled to be present at the distribution of the election materials from the office to the polling booth. Subsection 4 also provides that a Polling Agent shall be entitled to be present at the distribution of election materials, voting, counting and the collation of election results.
These provisions reinforce the provisions of section 134(1) of the Act which requires that election petitions shall be presented within 21days after the date of the declaration of results of the election. The implication of this is that political parties must take the issue of recruitment and training of party agents seriously. Unfortunately, most of the political parties exist in the air and are not rooted in the people. They are unable in the circumstance to recruit volunteers to act as party agents.
The lesson here is that a serious political party that in truth wants to bid for power and believes in its abilities can follow election materials and the conduct of elections from beginning to the end and behave and act as if it had lost the elections before it even started. In such circumstances, if the election is stolen, it will have solid materials and evidence to file its petitions within a few days of the announcement of results.
What is to be done?
1. The Independent National Electoral Commission must insist on the enforcement of the provisions of section 45(1) of the Electoral Act requirement the prior submission of the list of party agents and their particulars 7 days before elections. This will domicile each agent to one polling unit and prevent political thugs from gaining access to polling units and roaming around constituencies causing trouble and mayhem.
2. Civil society groups, the Independent National Electoral Commission and Political Parties must train Party Agents on the provisions of the Constitution and the Electoral Act. They should also be trained on the limits and parameters of their duties and the consequences’ of breach of the provisions of the law.
3. Political parties must also send party agents to monitor every process of the electoral process in accordance with the provisions of sections 43(3) and (4) of the Electoral Act.
4. Civil society groups must train, properly map out constituencies, organise and send observers and or monitors to polling units in different parts of the country. Without properly mapping out and training, observers may not conform to the professionalism and standards required of domestic observers and may come under the influence of extraneous forces with dubious intentions.
The Security of Electoral Officials
One of the big issues in the electoral process relates to the security of Poll Officials. International Standards in election management requires that security officers on electoral duty shall not be armed. On the basis of this, armed security officials and sometimes soldiers guard the perimeter of polling stations and major highways on Election Day. This position must be re-evaluated. This is because, there is no way a Presiding Officer that is not sure of his or her security will announce results at the polling unit.
A Presiding Officer that is a stranger to a locality, does not hear or understand the language of the locals, does not know the exit routes out of the areas of service, does not have sufficient money and in doubt of the presence of agents of other political parties will only feel bold to do what is right with adequate security. When the security officer is in bathroom slippers, does not even have a baton and does not have money to hire a motor bike to a rural area, it is a recipe for disaster. We must make provision for some armed presence in the polling units.
Although section 65 of the Act provides that after the recording of the results of the election, the Presiding Officer shall announce the result and deliver same and election materials under security to such persons as may be prescribed by the Commission. It is still debatable whether unarmed security personnel are those being referred to as they are mere civilians without instruments of coercion. Nigeria may eventually get to the level of not having any police personnel around the polling units and elections may still be credible. With our level of sophistication in fraudulent elections, the time is not ripe to disengage armed security personnel completely from the polling units.
What is to be done?
1. The Military and the Mobile Police should provide perimeter security around polling units. This will give Youth Corp members acting as poll officials the courage and determination to do what is right and proper and in accordance with the law.
2. The Independent National Electoral Commission should take out group life and accident insurance for all Corp members engaged in electoral duty. The stakes are high and it is important to protect these categories of persons from the hazards of electoral duty.
Resolution of Electoral Disputes
Amendments to section 239 altered the dynamics of electoral dispute resolution. It gives the Court of Appeal original jurisdiction regarding questions whether any person has been validly elected to the office of President, Vice President, Governor or Deputy Governor. Furthermore, by the amendments to section 233, appeals now lie from decisions of the Court of Appeal to the Supreme Court as of right on questions whether any person has been validly elected to the office of President, Vice President, Governor or Deputy Governor, whether the term of office of the President, vice President, Governor or Deputy Governor has ceased and whether the office of President, Vice President, Governor or Deputy Governor has become vacant.
Prior to the amendments, Election Petitions Tribunals exercised original jurisdiction in Governorship Petitions while appeals terminate at the Court of Appeal. To speed up the resolution of electoral disputes, the National Assembly amended section 246, the sixth schedule and section 285 to the Constitution to provide for the following:
1. That appeals shall lie as of right to the Court of Appeal from decisions of the National and State Houses of Assembly Tribunals and their decisions relating to such petitions shall be final, provided that an interlocutory application may be decided during the delivery of judgment.
2. That the National and State Houses of Assembly Election Tribunal shall consist of a Chairman and two other members.
3. That an election petition shall be filed within twenty one days after the date of the declaration of results of the elections;
4. That an election tribunal shall deliver its judgment in writing within one hundred and eighty days from the date of the filing of the petition.
5. That an appeal from a decision of an election tribunal or court shall be heard and disposed of within sixty days from the date of the delivery of judgment of the tribunals;
6. The court in all appeals from election tribunal may adopt the practice of first giving its decisions and reserving the reasons to a later date.
These provisions are also repeated in sections 134 of the Electoral Act. The law is that where the Constitution has covered the field as to the law governing any conduct, the provisions of the constitution is the authority statement of the law on the subject. Section 134 of the Electoral Act is therefore void on grounds of duplicity and lack of legislative incompetence.
Furthermore, sections 246, the sixth schedule and section 285 to the Constitution and section 134 of the Electoral Act, 2010 infringe on the principles of separation of powers as entrenched in the constitution. The National Assembly has no power to dictate to the judiciary how to conduct its affairs, just as the judiciary cannot fix a time limit for the proceedings of the National Assembly. The National Assembly is therefore incompetent to dictate to the judiciary the time frame within which to conclude election petitions without a consequential amendment of sections 6 and 36 of the Constitution dealing with the powers of the judiciary and guaranteeing fair hearing for aggrieved persons and individuals.
Moreover, as at now the Court of Appeal has a total of 70 Justices and two have just been elevated to the Supreme Court. There are 35 States Governors with over 60 political parties. If 5 Justices of the Court of Appeal sit on one petition, it means there will be only 14 panels. These Justices will also entertain appeals from National and State Assembly elections. They simply cannot cope with the challenges.
What is to be done?
1. The Court of Appeal does not have the geographical spread and complement of Justices to cope with the volume and myriad of petitions that will come before them during and after the elections. More judicial divisions of the Court must be established and the law amended to significantly increase the number of justices of the Court of Appeal.
2. The National Assembly must expunge the provisions of sections 133 and 134 of the Electoral Act as they are repetitions of the provisions of sections 246, the sixth schedule and section 285 to the Constitution
3. The leadership of the Supreme Court and the National Judicial Council must also appoint its full complement of 21 justices to cope with the volume of appeals that may arise from Presidential and Gubernatorial Appeals.
Nullification of Elections
The National Assembly amended section 147 of the Electoral Act, 2006 which is now section 140 of the Electoral Act, 2010. By section 140(2) of the Act, where an election tribunal or court nullifies an election on the ground that the person who obtained the highest votes at the election was not qualified to contest the election, the election tribunal or the Court shall not declare the person with the second highest votes as elected, but shall order a fresh election. The National Assembly also inserted a new section 141 to the effect that an election tribunal or court shall not under any circumstance declare any person a winner at an election in which such a person has not fully participated in all the stages of the said election.
What is to be done?
1. The rationales for these two provisions are suspect. If a person was not qualified to contest an election in the first place his name should not appear on the ballot. If his name appears on the ballot, the law presumes that it did not appear in the first place and he did not contest any election. It is therefore an overkill to insist that the person that scored the highest number of votes should not be declared as the winner since the votes purportedly scored by the winner did not exist. The National Assembly should expunge section 140(2) of the Electoral Act, 2010.
2. The insertion of section 141 of the Act is also a direct reaction to the election of Rotimi Amaechi as the Governor of Rivers State. Rather than engage in knee jerk reaction to the situation, political parties should do what is right in relation to its primaries. You can’t impose someone that did not go through any form of primaries or engage in unconscionable substitution and seek refuge in the law. Moreover, it is political parties that contest elections and the mandate is to the political party and not necessarily to the individual. Section 141 of the Electoral Act, 2010 should be expunged.
Electoral Offences and the Law.
The spectre of electoral offences and electoral violence has dogged the electoral landscape of Nigeria. More and more Nigerians are gradually disengaging from the electoral process on account of this. Based on this phenomenon the Electoral Reform Committee and the Inter-Party Consultative Committee on Electoral Reform set up by late President Umaru Musa Yar’Adua and chaired by the incumbent President recommended the establishment of an Electoral Offences Commission.
Unfortunately, the Bill forwarded to the National Assembly on it may not see the light of day before the 2011 elections. Presently, the Electoral Act, 2010 deals with electoral offences and electoral violence. Section 24 deals with offences relating to registration of voters. Section 88 deals with offences relating to finances of political parties. Section 91 deals with limitation on election expenses. Section 95 and 96 prohibits certain conducts at political campaigns and use of violence during campaigns.
Section 101 and 102 prohibits broadcasts during certain hours and campaigns based on religion and tribe. Part V111 of the Act deals with a myriad of electoral offences and their punishments. Unfortunately, section 150(2) of the Act still gives INEC the power to prosecute offences under the Act.
What is to be done?
1. Political parties must eschew violence and other electoral offences; Violence in an election can spiral out of hand and threaten the corporate existence of the country.
2. The National Assembly must enact the Electoral Offences Commission Bill into law. A separate Commission with a separate budget and a separate and unique operational system will send a strong message that there shall be consequences for electoral misdemeanour.
The State and Local Government Offices of INEC
The promise of free, fair and transparent election promised by the leadership of the Independent National Electoral Commission has not reached the States and the Local Governments. The personnel and modus operandi at the State and Local Government offices of the Independent National Electoral Commission are still the same. The personnel and infrastructure at the States and Local Government offices of INEC are still the same. It is instructive to note that the Electoral Officers at the Local Governments are the real managers of elections and unless they imbibe the spirit of change and that of a new Nigeria nothing substantial will change with the elections.
What is to be done?
1. The Independent National Electoral Commission should audit and re-evaluate its State and Local Government Offices. They are the ones that conduct elections. They must be imbued with the new spirit of change.
The Last Line
1. What if the equipment for the registration of voters does not arrive on time and its becomes impossible to comply with the law relating to the conclusion of voters registration and updating and revision of the voters register within the 60 days time frame given by the law?
2. What if the Independent National Electoral Commission declares the impossibility of complying with the time lines in the Constitution and the law and seeks for adjustments and or amendments to some of them?
3. What if the Courts throw the time lines out of gear by declaring the 1st amendment to the 1999 Constitution unconstitutional and setting aside a substantial portion of the Electoral Act?
4. What if a majority of the political parties insist that they will not be ready for the elections in January 2011?
The 2011 elections are around the corner and all stakeholders must brace to the challenge posed by the timelines. We must strive to get things right and remove the shame and odium of past failures. We have the capacity to respond to emergencies and we have the energy, the expertise and the resources to pull through. With the requisite political will, the impossible will become the possible.
However, we must also have the courage to admit the impossible and make adjustments that will enable us do things in an orderly and less contentious manner.
Barrister Festus Okoye
Constitutional Lawyer & Member
Electoral Reform Committee.