AUTHOR: OLABODE AKINDELE
Student (LL.B), Faculty of Law, University of Lagos.
The Electoral Act 2010 was enacted by the National Assembly on July 29th 2010, and signed by President Goodluck Jonathan on 20 August 2010. Subsequently, it was amended in 2010 and 2011. The first amendment aimed at ensuring sufficient time for the Independent National Electoral Commission (INEC) to issue notices, receive nomination of candidates from political parties and ensure the proper conduct of political parties. In the second amendment, the Electoral (Amendment) Act (No.2), 2011, aimed at reducing the time INEC should stop registration of voters before any general election from 60 days to 30 days. Recently, on March 30 2017, the Act was again amended by the National Assembly in order to redefine the legal framework for conducting free, fair and credible election within the country.
The focus of this paper is the appraisal of some of the remarkable amended sections, posing salient questions with respect to the harsh reality obtainable within the country and making commendations where necessary.
2.0 THE AMENDMENTS
According to the Daily Trust Report on April 1st 2017, a number of the amendments were highlighted which include;
- 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 instantly transmitting accreditation data and results from Polling Units to various collation centers of which any form of contravention may attract an imprisonment for at least 5 years (no option of fine),
- Presiding Officer now first recording accreditation data and polling results on INEC’s prescribed forms before transmitting them, ensuring correlation between the data/result recorded and transmitted, the introduction of electronic voting,
- Keeping of electronic registers of voters alongside manual registers and publishing voters’ registers on its official website(s) for public scrutiny at least 30 days before a General Election coupled with a penalty of 6 months’ imprisonment in case of any default by the responsible INEC staff,
- A mandate 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,
- Employing electronic means in the collation of election result in order to help determine final results on real time basis.
Other amendments are proper recording of electoral materials used to conduct elections (for proper tracking), inspection of original electoral materials before commencement of election by Political parties’ Polling Agents and any violation of this provision being punishable by at least 1 year imprisonment, withdrawal of the powers of political party to impose qualification or disqualification criteria, on any Nigerian for the purpose of nomination for elective offices, except as provided in the 1999 Constitution and the withdrawal of the powers to challenge the winner of an election on grounds of qualification, provided the winner has 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 in breach of s. 66, s. 107, s. 137 or s. 182 of the CFRN, 1999.
For the purpose of clarity, some of the remarkable amendments shall be categorized into different subheadings for proper evaluation.
2.1 Introduction of Electronic Voting and Collation System
An electronic voting is an electronic system in an election which will allow voters transmit their secure and secret voted ballot to election officials over the internet. This is a practice which the Nigerian Senate is advancing by ensuring that Presiding Officers instantly transmit accreditation data and results from Polling Units to various collation centers. This will also help to reduce ballot box snatching which is a criteria that is imminent within the Nigerian Electoral scene.
The introduction of electronic voting will also see to reduction in the cost of conducting elections by reducing the required number of ad-hoc staffs and personnel. This is largely favourable, considering the current economic reality of the country.
In a bid to achieve the mandate of the free, fair, credible election and procedural transparency, the introduction of electronic voting will help achieve this feat. This is in line with the amendment that requires 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 instantly transmitting accreditation data and results from Polling Units to various collation centers, keeping of electronic registers of voters alongside manual registers and the publishing voters’ registers on its official website(s) for public scrutiny at least 30 days before a General Election.
Before now, electronic voting has been clamoured for; it is therefore a welcomed development that has been recognized within the Nigerian electoral law.
2.2 Death of Political Party Candidate before the Declaration of Election Result
A very sacrosanct amendment was made to issues regarding the death of party candidate before the declaration of election results that did not appear to limelight until the unfortunate event which occurred on November 22, 2015. The death of Audu Abubakar, the Governorship aspirant of the All Progressives Congress in Kogi state brought such eventualities to light. The amendment thus provides that 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.
As at the death of deceased, the conundrum surrounding this issue was temporarily laid to rest by the Supreme Court in the case of Hon James Abiodun Faleke v. INEC & Anor with Appeal no: SC. 648/2106, when the second respondent, Yahaya Bello was selected as the new candidate by the All Progressive Congress (APC) to replace the deceased, the supposed deputy governor of Audu Abubakar, James Faleke brought an action challenging the Tribunal’s decision of allowing the transfer of vote of Audu Abubakar to the second respondent. His claim was rejected at the Court of Appeal and the Supreme Court upheld the decision of the Court of Appeal. Justice Jummai Sankey J.C.A stated in accordance with Section 221 of the Constitution of the Federal Republic of Nigeria, only the party could canvass for vote. According to Vanguard Nigeria Newspaper on August 4, 2016, Justice Sankey explained that the constitution does not recognise independent candidature, so Faleke could not lay claims to the number of votes polled before the demise of Audu and before the election was concluded. The Honorable Justice held that,
Faleke was only joined to Audu after the primaries had been concluded, but Bello, whom the APC chose, participated in the primary election that produced Audu as candidate. Sankey also added that the nomination of Bello to replace the late Audu did not contravene the constitution or the electoral act.
With the proposed amendment, such issue is being laid to rest. Of course, If the Nigerian senate had not included this issue in its amendments, one would have questioned the whole essence of their existence as law makers.
2.3 Abolition of Arbitrary Nomination Fee
This is in fact one of the best amendments in the Electoral Act. In the past, various political aspirants complain about the exorbitant fees required to purchase the nomination forms for representing a political party. For instance, President Muhammed Buhari lamented on his inability to purchase the All Progressive Congress Nomination Form because of the high cost and therefore resulting to get loans. With the birth of Electoral Act No. 6 2010 (Amendment) Bill 2017, 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 Governorship aspirant; and
(g) Ten Million Naira (N10,000,000) for a Presidential aspirant.
The aforementioned amended section however poses a question in the mind of a lawyer concerning the possible flouting of this amendment by Political Parties. In such instance, there is no prescribed penalty on the contravention of this section. This goes ahead to reveal that amendment is just there without intentions on implementation in case of a contravention. A pragmatic penalty still needs to suffice such as heavy fine equivalent of the overstated prescription.
2.4 Grounds of Qualification and Disqualification
One would have thought that the amendment would extend the requirements of qualification contained in s. 65(1)(a)(b) (2)(a), s. 106(b)(c), s. 131(b)(d) or s. 177(b)(d) of the Constitution of the Federal Republic of Nigeria. They provide thus;
- 65 (1) Subject to the provisions of section 66 of this Constitution, a person shall be qualified for election as a member of:
(a) the Senate, if he is a citizen of Nigeria and has attained the age of 35 years; and
(b) the House of Representatives, if he is a citizen of Nigeria and has attained the age of 30 years;
(2) A person shall be qualified for election under subsection (1) of this section if:
(a) he has been educated up to at least School Certificate level or its equivalent.
- 106 Subject to the provisions of section 107 of this Constitution, a person shall be qualified for election as a member of a House of Assembly if –
(b) he has attained the age of thirty years;
(c) he has been educated up to at least the School Certificate level or its equivalent.
- 131. A person shall be qualified for election to the office of the President if –
(b) he has attained the age of forty years;
(d) he has been educated up to at least School Certificate level or its equivalent
- 177. A person shall be qualified for election to the office of Governor of a State if
(b) he has attained the age of thirty-five years;
(d) he has been educated up to at least School Certificate level or its equivalent.
It is rather saddening that despite the outcry of the Nigerian youth to secure political positions at the helm of affairs within the country by bringing down the age of political aspirants, the Nigerian Senate has still refused to accede to their cries via the recent amendments nor have they taken a lead from the recent development of electing Youths within other polities of the world. A case in point is Sarah Coral Hansom-Young, a member of the Senate of Australia becoming the youngest woman ever elected to the Australian parliament at the age of 25. Another is Elise Marie Stefanik, a 32 year old member of the United States House of Representative or the newly elected President of France, Emmanuel Macron at the age of 39.
Of great expectation was the issue surrounding minimum educational certification requirement being resolved. However, this was not mentioned, despite the certification saga encircling the election of the president. It is expected that the minimum qualification is raised to at least the stage of a diploma certification in order to ensure persons of intellectual poise are at the helm of leadership and not a mere secondary school certification holder as this does work in line with the mandate of development the Nigerian society desires to attain.
Another great invention that should have been thought of by the senate in proposing this amendment is the requirement of Tax Clearance certificates before any political aspirant can vie for political positions. This would have been a great invention that will stir the course of politicking within the Nigerian polity and as well help the government in achieving its macro-economic goals.
Lastly, it is pertinent to state that the above listed shortcomings of the amended act may not be possible until a total overhauling is carried out on the Constitution of the Federal Republic of Nigeria. What the writer seeks to put forward therefore is that the Amended sections could have hinted the possibility of the under listed. Since this is not so, we can’t also conclude that such amendment will be carried out on the CFRN.
Having adequately enumerated the amendments of the Electoral Act with respect to the remarkable ones that will change the face of the Nigeria’s electioneering process, it is however established that there are grey areas which still need to be amended. It is very pertinent therefore that the legislative arm of government takes into consideration some of these grey areas highlighted above in making the bill a more workable bill/law in future.
Olabode Akindele is a 300 Level Student of the Faculty of Law, and the Assistant Secretary General of The Tax Club, University of Lagos. He is passionate about his Country, Nigeria and hopes the state of the Country improves soonest. He is also an Executive Editor of the “Unilag Law Review”, a Law Journal of the Law Student society and can be reached at email@example.com.