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Examining the Strengths and Weaknesses of the Passed Senate’s Electoral Act Amendment Bill

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The Senate has passed wide-ranging amendments in the Electoral Act (Amendment) Bill, 2016. A holistic reading of the Bill reveals that the Bill is intended to strengthen and improve the credibility of the electoral process, remove ambiguities, bring innovations and ensure compliance of electoral laws by increasing penalties.

Within the context of strengthening the electoral process for instance, the amendments to section 9 of the Principal Act will reduce the time frame for the registration of voters, update and revision of the voter’s register to at least 60 days before an election to enable INEC deal with other pertinent issues outside the voter’s register. Presently, INEC has up till 30 days before any election to deal with these issues. Other amendments such as the amendment to section 52(2) which explicitly mandates the Commission to conduct elections by electronic voting or any other method of voting as it may determine from time to time also strengthens the electoral process by providing clarity in the law and is a step forward from extant provisions that merely give INEC discretion to determine the voting method in an election.

Furthermore, an amendment to section 36 details the procedure where a nominated candidate dies after the commencement of an election but before the announcement of the result by providing that the Commission should suspend an election in such an event for 21 days while the affected political party conduct new primaries to replace the deceased person(s) within 14 days. It is intended to fill the lacuna in the law as highlighted in the 2015 Kogi Governorship election where the candidate of the All Progressives Congress, Governor Abubakar Audu died after the commencement of the poll but before the declaration of election result. Other provisions, which intend to remove any ambiguity in the law, include the proposed new subsection 138 (3) that seeks to limit grounds for disqualification to that stated in the Constitution. It provides that the winner of an election cannot be challenged on grounds of qualification, if the winner satisfied the applicable requirements outlined in Sections 65, 106, 131 or 177 of the 1999 Constitution, which state the qualification of membership for the National Assembly, House of Assembly, the President of the Federation and Governor of a State respectively. In addition, the proposal to Section 87, which has very extensive provisions governing direct and indirect elections, seeks to increase political participation and party democracy by providing against arbitrary fees and by prescribing monetary limits for elective positions. It also seeks to prevent parties from imposing candidates.

Other noteworthy amendments include some technological innovations like in the keeping of the Voters Register in an electronic format in an INEC central database . The Commission is also mandated to publish the voter’s register on its website which will arguably enable wider accessibility to the voter register and increase the possibility of political participation among citizenry in the exercise of his or her civic right to vote as enshrined in the Constitution. There is also a proposed 43(4A) that will enable the inspection of election materials in audio-visual recordings. A proposed amendment to Section 49 will also enshrine Smart Card Readers into Nigerian Electoral Law following the Supreme Court decision in Wike v Peterside which stated that INEC’s directives, guidelines and manuals can not be elevated above the provisions of the Electoral Act so as to eliminate the manual accreditation process and that it would remain so until INEC took steps to make necessary amendments to bring the usage of the Card Reader within the ambit of the substantive Electoral Act.

However, despite the laudable provisions, there are identified weaknesses in the new amendments. For instance, the penalties sections in the Bill are almost all targeted at the Commission and its staff. The few exceptions to this in the Bill relate to when associations are penalised for presenting false information to obtain a certificate of registration and where persons fail to disclose their affiliation or membership to a political party in a bid to secure an appointment with the Commission. Interestingly, even section 87 that comprehensively elaborates on the nomination of candidates by parties has no penalty section for political parties who fail to observe the procedure of nominating candidates directly or indirectly. For example, there are also no penalties for those who pose arbitrary fees on political aspirants beyond what is provided for in elective offices. Furthermore, the requirement that, INEC leave its central database on until all election petitions and appeals pertaining to that election have been heard and determined in a proposed section 49 appears to be capital intensive and may invariably lead to higher costs for the Commission.

Also, certain amendments appear to encourage an easy invalidation of a election. For instance, under the amendment to section 44, an election can be invalidated if a political party is not given an opportunity to inspect their logo. Also under the proposed section 76A, where the Commission is mandated to record the details of electoral material such as the quantities, serial numbers, particulars of result sheets and other sensitive materials used to conduct elections, failure to do so will cause the election to be invalid. Moreover, considering the reported failure of the card reader in the 2015 General elections, an amendment to section 49 enabling the suspension of elections where the number of unaccredited voters is less than 10% of the registered voters within the polling unit seems to require further introspection as it may lead to the problem of the Commission having to conduct many re-run elections. This is because unlike the 2015 elections where the manual process was reverted to in instances where the Smart Card Reader failed, the amendment does not seem to envisage a manual process for accreditation leaving INEC in a precarious situation in the event the re-run elections are held within (the proposed) 7 days and the card reader fails again.

Overall, while the Bill is commendable, the Conference Committee stage provides further opportunity to examine some of these weaknesses in the Bill before it is harmonised for adoption and onward transmission to the President. The Nnamani led Constitution and Electoral Reform Committee will also be providing its recommendations to the Federal Government, which the Attorney General will be presenting as Executive Bills for consideration by the National Assembly and subsequent passage.