THE 1999 CONSTITUTION AND THE ELECTORAL ACT 2022

The Constitution of the Federal Republic of Nigeria 1999 as our grundnorm has provided the framework on how leadership positions can be occupied in this country. Going by section 6 (6) (b) of the Constitution, disputes of all kinds, including those arising from elections, must be resolved through a lawful process defined by law or else there will be anarchy.

Beyond this however, the Constitution has also provided a democratic means of producing any good leader in any clime.

However, the major concern that we have in relation to credible elections is the Electoral Act. The Electoral Act as recently passed in 2022 came with a lot of aspirations and Nigerians were anxious about its application by INEC. Some of the innovations of the new Electoral Act 2022 are:

A. Section 84 – Ineligibility of Political Appointee as a Voting Delegate or Aspirant

Section 84 of the Electoral Act 2022 makes provision for the nomination of candidates by political parties. One of its provisions is the exclusion of political appointees from acting as a Voting Delegate. Subsection 12 provides that no political appointee at any level shall be a voting delegate or be voted for at the convention or congress of any political party. This should ordinarily be cheering as a means of curbing the issue of conflict of interest whereby a public officer whilst clinging to his official position is at the same time seeking elective office.

b. Virtually Impaired, Special need and Vulnerable Voters

By virtue of section 54 of the Electoral Act 2022, people living with disability are recognised and given a sense of belonging in exercising their inalienable right notwithstanding their physical disability. They are permitted to be accompanied to the polling unit. The Commission shall take reasonable steps to ensure that persons with disabilities, special needs and vulnerable persons are assisted at the polling place by the provision of suitable means of communication, such as braille, large embossed print, electronic devices, sign language interpretation, or off-site voting in appropriate cases.

c. Provision for Central Electronic Voters Database

Section 9 of the Electoral Act stipulates that the Electoral Commission will keep the Register of Voters at its National Headquarters and other locations. Section 9 (2) of the Act provides that the said Register shall be kept in electronic format in addition to being kept in manual, printed, paper-based or hardcopy format. This provision is laudable as it will promote transparency and effectiveness in the Commission’s record-keeping regime.

D. Redefinition of Over Voting

Section 51(2) of Electoral Act 2022 provides that where the number of votes cast at an election in any polling unit exceeds the number of accredited voters, the Presiding officer shall cancel the result of the election in that polling unit. This is an improvement on the repealed electoral law which provided that the number of registered voters, as opposed to accredited voters, shall be the factor in determining over-voting at election tribunals and only the commission can declare the election at the polling unit as null and void.

e. Early Commencement and Longer Period of Campaign

Section 94 of the Electoral Act 2022 provides that the period of campaigning in public by every political party shall commence 150 days before the polling day and end 24 hours prior to that day. This affords political parties and their candidates ample time to market their party and candidates to the populace. Under the Electoral Act 2022, INEC now has the power to review within seven (7) days the declaration and return where the Commission determines that the said declaration and return were not made voluntarily or were made contrary to the provisions of the law, regulations, guidelines and manual for the election.

f. Death of Candidate Before or During Election

The new Electoral Act has put the controversy usually generated by the death of a Candidate before or during election to rest, as the death of a candidate in elections had generated lots of conflicts among political parties and political actors alike. The new Act provides that where before the commencement of polls a candidate dies, the election shall be postponed and INEC shall appoint some other convenient date. Section 34 of the new Act in its proviso states that in 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. If after the commencement of polls and before announcement of final winner/announcement of final result and declaration of a winner, a candidate dies, the election will be suspended for not more than 21 days.

g. The Implication and Developmental Trend of Electoral Act 2022

Lawmaking is one of the developmental processes of any state. When new laws are made, they bring or introduce new regulation of conduct and this is applicable to the new Act which has the tendency if properly applied or implemented to revolutionize our electoral system. One of the major developments that the new Act brought is that it has queued into the digital or computer age by creating an electronic database and also providing for electronic transmission of election results. This will reduce rigging or manipulation of the election process and ensure that eligible voters are not disenfranchised based on disability amongst many other innovations.

h. Financial Independence of INEC and Early Release of Election Funds to INEC

The Electoral Act 2022 has established the Independent National Electoral Commission Fund. The new Act has created room for INEC to have financial autonomy by receiving funds for the conduct of elections directly as opposed to getting funds subsequent to vetting by the Ministry of Finance. Section 3(3) of the Electoral Act 2022 provides that funds for general elections must be released at least one year before the election.

Multiple Nominations

There are however one or two loopholes that need to be highlighted because they have aided the miscarriage of justice and flawed the true essence of the desired electoral reforms. A very good example of this setback is the case of the Yobe senatorial election wherein the former Senate President who did not contest election became the winner. This calls for sober reflection because of the requirement that justice must not only be done but be seen to have been done. The mischief created through section 30 of the Electoral Act needs to be addressed and cured. The said section provides as follows;

30 (1) A candidate for an election shall be nominated in writing by such number of persons whose names shall appear on the register of voters in the constituency as the Commission may prescribe.

30 (2) A person shall not nominate more than one person for an election to the same office.”

In the margin to section 30, there appears the phrase “Prohibition of Double Nomination” which in all respects means that an aspirant cannot secure nomination for different offices in the same election. To my mind, the Electoral Act should be amended to state clearly that a candidate is prohibited from being nominated for more than one primary election for any office. The ambiguity is needless. The proposed amendment should also apply to section 115(d) which seeks to prohibit a candidate from signing multiple nomination forms.

The Electoral Umpire

The other major problem in our electoral system is the electoral umpire itself – the Independent National Electoral Commission. As I have maintained elsewhere, INEC has to be unbundled. The idea of the commission and the Chairman of INEC being appointed and chosen by the President is contrary to the true intention of democracy and free elections. We cannot truly expect such an umpire to be neutral in an election where the President is also a candidate.

Despite the new innovations in our electoral laws, the recent decisions of the judiciary in the last election cycle have exposed the prominent challenges faced in the adoption of technicalities in election petitions.

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