Electoral Act 2022: Condensing all interests to “the greatest good for the greatest number”
By Moses Adeniyi
Statutory framework for processes under the structures of democratic governance remains sine qua non to guide the workings of the fabrics of the system. One pillar among the principles of democracy, with resounding reflections, remains the periodic change of government. The informing instrument for same has remained elections, which as widely acceptable, must be adjudged free, fair, transparent, and credible. For an election to assume such standard of repute, statutory framework to guide conducts is non negotiable.
For Nigeria, the must recent instrument to form the framework to instruct the processes of the 2023 General Elections is the recently enacted Electoral Act 2022, repealing the extant Electoral Act 2010. However, the building framework of the Act have not been without contest, brewing controversies and reservations.
Of importance among the rising subjects have been the narratives which have coloured the building blocks of the Act. It thus have appeared that the status of the Act is still evolving with amendments and controversies which have recorded contest of various forms.
From the angular posture of the three arms of government, the Act has been greeted with touches which have attracted hostilities and reservations on contrasting sides. It appears every organ have its stakeholders using their powers to alter the provisions of the Act to the edge that best suits their interests and to serve their expectations.
Controversies
The cacophony of interests have brought the Act to the margin of controversies. From the stage of its initial passage to the President for assent into law, controversies have not ceased from its make-up. Initially, withholding of assent on the part of President Muhammadu Buhari at the onset with claims of some of its provisions, particularly those having to do with party primaries, were issues that rose debate. In President Buhari’s posture, his delay of assent was based on what he believed was capable of springing forth crises within parties’ structures, among others.
The hostilities had brought into bear considerations of overriding the President’s veto following foot dragging of assent. However, this never took course as the return of the Bill to the National Assembly with the President’s side of view, particularly those bordering on direct and indirect primaries within the architecture of political parties, were accommodated by the parliament, and amendments were affected. While the Bill was later assented to by the President on Friday February 25th, 2022, further issues have risen demanding more amendments.
President Buhari had withheld his assent to the Bill in November 2021, citing the cost of conducting direct primary elections, security challenges, and possible manipulation of electoral processes by political players as part of the reasons for his resistance. A revised version by the President was reconsidered by the Parliament and same passed for assent. The revision saw the House of Representatives re-amending the Bill to make provisions for direct and indirect primary options for parties, while the Senate re-adjusted it to include the direct, indirect, and consensus modes of selecting political parties’ candidates. Both chambers had later passed the harmonised version on January 25, 2022 – giving credence to the choice options of direct, indirect, and consensus primary modes.
Upon passage again, a delay had seen the President only signing the amended Bill, barely a week to the deadline of the window the President has to give assent, as required by the Nigerian Constitution. Having received the Bill from the National Assembly on January 31, 2022, it took the President till February 25, to assent to the Bill. Issues regarding to limiting the chances of political appointees were, among others, recorded as part of the hostilities.
One would expect certain controversies as President Buhari had before signing the Electoral Act Amendment Bill 2022 into law, expressed his reservations over portions of the electoral law, which he described as discriminatory.
President Buhari had in his address while signing the Electoral Act Amendment Bill 2022 into law said, “It is gratifying to note that the current Bill comes with a great deal of improvement from the previous Electoral Bill 2021. There are salient and praiseworthy provisions that could positively revolutionise elections in Nigeria through the introduction of new technological innovations. These innovations would guarantee the constitutional rights of citizens to vote and to do so effectively.
“The Bill would also improve and engender clarity, effectiveness and transparency of the election process, as well as reduce to the barest minimum incidences of acrimony arising from dissatisfied candidates and political parties.
“These commendable efforts are in line with our policy to bequeath posterity and landmark legal framework that paves the way for credible and sound electoral process that we would all be proud of.
“Distinguished Senators and Honourable Members of the National Assembly, from the review it is my perspective that the substance of the Bill is both reformative and progressive. I am making this bold declaration because I foresee the great potentials of the Bill. Worthy of note include the democratic efficacy of the Bill with particular reference to sections 3, 9(2), 34, 41, 47, 84(9), (10) and (11) among others.
“This, however, cannot be said about one provision as contained in the proposed Bill, which provision constitutes fundamental defect, as it is in conflict with extant constitutional provisions.
“Section 84 (12) constitutes a disenfranchisement of serving political office holders from voting or being voted for at Conventions or Congresses of any political party, for the purpose of the nomination of candidates for any election in cases where it holds earlier than 30 days to the National Election. The section provides as follows, ‘No political appointee at any level shall be voting delegate or be voted for at the Convention or Congress of any political party for the purpose of the nomination of candidates for any election.’
“This provision has introduced qualification and disqualification criteria that ultra vires the Constitution by way of importing blanket restriction and disqualification to serving political office holders of which they are constitutionally accorded protection.
“The practical application of section 84(12) of the Electoral Bill, 2022 will, if assented to, by operation of law, subject serving political office holders to inhibitions and restrictions referred to under section 40 and 42 of the 1999 Constitution (as amended).
“It is imperative to note that the only constitutional expectation placed on serving political office holders that qualify, by extension as public officers within the context of the constitution is resignation, withdrawal or retirement at least 30 days before the date of the election.
“Hence, it will be stretching things beyond the constitutional limit to import extraneous restriction into the constitution on account of practical application of section 84(12) of the bill where political parties’ conventions and congresses were to hold earlier than 30 days to the election.
“Arising from the foregoing, with particular regards to the benefits of the Bill, industry, time, resources and energy committed in its passage, I hereby assent to the Bill and request the Nationally Assembly to consider immediate amendments that will bring the Bill in tune with constitutionality by way of deleting section 84(12) accordingly.”
However, the National Assembly lawmakers had maintained their resistance to deleting or adjusting their stand on the provisions of section 84(12) as objected to by the President. Instead, the lawmakers would rather go ahead to amend a section of the Act which they deemed fit to their interest, permitting them (lawmakers) as stakeholders among statutory delegates to elect party candidates in primaries. As each organ would seem to throw its weight of power, the President may also have to wait for the Assembly for a throwback.
More Amendment
Wednesday, 11th May, 2022, as primaries of political parties to elect their candidates for the 2023 general elections loomed, the Senate had hurriedly amended the recently passed 2022 Electoral Act to allow statutory delegates participate in the process. The statutory delegates include President, Governors, National and State Assembly members, local government Chairmen and Councillors. The amended Section, 84(8) of the Electoral Act 2022, would give room for statutory delegates to participate in political parties’ congresses and conventions.
The initial version, which was assented to by President Buhari in February, prevents statutory delegates from taking part in party primaries. As contained in the provision, statutory delegates to congresses and conventions of political parties include elected councillors in all the over 8,000 wards across the Country, elected Chairmen and Vice Chairmen of the 774 local councils, elected members of State Houses of Assembly, elected federal lawmakers in the National Assembly, and Governors of the 36 States and their deputies. Others include the President and Vice President of the country and executives of political parties at the state and federal levels, as well as Chairmen of parties at the local government level. The amendment was sequel to a bill sponsored by the Deputy President of the Senate, Senator Ovie Omo-Agege (APC, Delta Central), with the upper chamber holding that the unintended error committed by the omission must be corrected before the commencement of party primaries May ending, thus what informed the expeditious consideration and passage in a session. Similar speed was recorded in the session of the lower chamber passing the Bill.
In his presentation, Omo-Agege had specifically, in the amendment bill entitled, “A bill for an act to amend the 2022 Electoral Act no 13 and for other related matters,” said section 84(8) of the Electoral Act 2022 does not provide for the participation of what was generally known as “statutory delegates” in conventions, congresses or meetings of political parties held to nominate candidates for general elections. The Lawmaker, Omo-Agege, had said: “It is my profound pleasure to have the privilege of leading the debate on this very important Bill which seeks to amend the Electoral Act 2022 to make provision for delegates who, not being elected delegates, as prescribed in the constitution of a political party to participate in the convention, congress or meeting of the party.”
However, as the National Assembly seem to ignore the President’s recommendation over section 84(12), after assenting to the Electoral Act Amendment Bill, the President may seem also to be exercising his powers by withholding assent from the speedy amendment of section 84(8) by the National Assembly. Although the President would also have a stake as a statutory delegate, he has refrained from throwing his power, withholding his assent, despite pressure.
The delay in assent would however attract divergent views. As pressure mount on the President to assent to the amended section 84 (8) by the National Assembly, divergence of opinions have taken the stage. A coalition of 24 election monitoring groups under the aegis of Coalition of Election Monitors and Observers (CEMO), had Monday, 24th, May, 2022, cautioned President Muhammadu Buhari against signing the amendment to the Electoral Act 2022. The coalition argued that signing the document a few days to party primaries to elect candidates would bear consequences of serious political crisis. National Convener of CEMO, Dr. Idris Yabu, while presenting a report after the meeting of the coalition, in Abuja, was quoted, “It is now too late since political parties have already commenced activities for the 2023 elections under the provisions of the extant law. After a very extensive review and consultations on the issue, we submit that the amendments sought to Section 84 of the Electoral Act 2022, as desirable as they may be, have been overtaken by events leading to the 2023 general elections. It is instructive to note that political parties, especially the two major political parties in Nigeria have already started the electoral processes under the timelines, schedules and rules prescribed by the provisions of the extant Electoral Act 2022. More importantly, it must be noted that political parties have already structured their timetables, sold nomination forms, screened aspirants, conducted congresses, elected delegates, with major parties already holding primaries and candidates already emerging under the rules provided for in the current Electoral Act, 2022.
“In this regard, any alteration or amendment to the Electoral Act, at this moment, will amount to changing the rules in the middle of the game. Such will be dangerous and counter-productive to our democratic process. It will trigger widespread political crisis and result in litigations that can derail the 2023 general elections. Our observation shows that political parties, aspirants and the electorate have already adjusted to the current provision of Section 84 of the Electoral Act. Candidates are already peacefully emerging. Any alteration at this moment has the propensity of dislocating the current political tranquility in the country and disrupt the entire electoral process.
“CEMO therefore urges President Muhammadu Buhari to save the nation from a serious political crisis at this moment by returning the Amendment Bill to the National Assembly for reprocessing for future elections. CEMO also urges the Independent National Electoral Commission (INEC) and the Attorney General of the Federation (AGF) to advice Mr. President in this direction to avoid political crisis and ensure the smooth conduct of the 2023 general elections.”
Recall that the House of Representatives Minority Caucus had earlier urged President Buhari to without delay sign the one item amendment to the Electoral Act 2022 to avert political crisis in the Country. Maintaining that the issue was affecting pending primaries of the political parties, the caucus had urged “President Buhari to note that any further delay in signing the amendment to the Electoral Act to give political parties a sense of direction in the conduct of primaries for the election of candidates for the 2023 general elections has the capacity to derail our entire democratic process and destabilise our dear nation.” In a statement by the Minority Leader of the House, Ndudi Elumelu, on Thursday, 19th May, 2022, the Lawmakers had maintained that, “The caucus notes with grave concern that Mr. President’s delay in signing the single amendment to Section 84 (8) of the Electoral Act 2022 has thrown the nation into serious confusion and constitutes a huge threat to our democracy and the smooth conduct of the 2023 general elections, As representatives of the people, the Minority Caucus urges Mr. President to avert an imminent political crisis which has the capacity of exacerbating the security situation in the country by immediately signing the Amendment to the Electoral Act 2022 and leave a legacy of a credible electoral process to the nation. Our caucus calls on all Nigerians, the Civil Society, the International Community and all lovers of democracy to prevail on President Buhari to immediately sign the amendment to the Electoral Act 2022 and save our nation from an avoidable crisis.”
Legal Tussles, Section 84(12)
The plethora of disputes tabled before the court of law on the Electoral Act 2022 seem to be deep seated. Wednesday, 11th May, 2022, the Court of Appeal sitting in Abuja, had set aside an earlier judgement of the Federal High Court sitting in Umuahia, Abia State, which voided the provision of Section 84(12) of the Electoral Act, 2022. The appellate court, in a unanimous decision by a three-man panel of Justices led by Justice Hamma Akawu Barka, held that the high court, acted without jurisdiction. It held that the Plaintiff, Mr. Nduka Edede, lacked the locus standi to institute the action. Consequently, it struck out the suit marked: FHC/ UM/CS/26/2022, which Edede filed before the Umuahia court.
Nonetheless, the appellate court, while determining the appeal on the merit, held that the said provision of the electoral law was unconstitutional because it is in breach of Section 42 (1)(a) of the 1999 Constitution, as amended, stressing that the section denied a class of Nigerian citizens their right to participate in election. The judgment had followed an appeal marked: CA/OW/87/2022, which was filed by the Peoples Democratic Party, (PDP). It would be recalled that the High Court in Umuahia, had in March, struck down section 84(12) of the Electoral Act, 2022 and ordered that it should be deleted by the Attorney-General of the Federation for being inconsistent with the Constitution. Barely 24 hours after the judgement was delivered, the AGF, Mr. Abubakar Malami, SAN, had announced his decision to immediately comply with the court order.
Both the Senate and the House of Representatives had in reaction commenced move to contest the Federal High Court, Umuahia, Judgement which ruled for the deletion of Section 84(12) from the Electoral Act. The Speaker of the House, Femi Gbajamiabila, had stressed that the judiciary usurped their powers and ridiculed them with the judgment, noting that he would not allow the alleged mistake by the judge to stand. Lawmakers have maintained that the unanimous crafting of the Electoral Act and the contentious section represent the interests of majority of the citizens and the constituents they represent in the country.
While some legal practitioners saw the Court of Appeal judgement which set aside the High Court Judgement declaring section 84 (12) deleted, as suspicious, many believed the process that led to the delivery of the judgment was unacceptable. While it has been argued that the provision in the Electoral Act did not contradict the constitution, some believed the controversies of court judgements are precursor to national crises.
Issues of the posture of appointed political office holders to contest elections include, among others, a subject of contest. Specifically, section 84(12) of the Electoral Act, 2022, made it mandatory that political office holders must firstly resign from office, before they could vie for any elective position. The section reads: “No political appointee at any level shall be a voting delegate or be voted for at the convention or congress of any political party for the purpose of the nomination of candidates for any election.”
The Court of Appeal judgement itself had attracted steams of reaction bordering on the merit of the Judgement. Just as some legal luminaries have argued that the Judgment being delivered in about 10 days of the suit filed, had political undertone, there were arguments over misinterpretation by the Court regarding distinguishing between the subject of public servants and political appointees as touching seeking elective positions.
Monday, May 16, the Federal High Court sitting in Abuja, had fixed May 24, for President Muhammadu Buhari and the PDP to tender address on the position of the Court of Appeal, which declared the contentious section 84(12) of the amended Electoral Act, unconstitutional.
To be continued
