Electoral Act 2022: Unresolved Issues

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By Onikepo Baitwhaite: The Advocate 

By now, Nigerians are used to the fact that our country is like a never-ending “Nollywood” television drama series. We move from one unnecessary saga/drama to the other, which mostly turn out to be, not particularly to the benefit of the people. Over the years, I think we have all learnt that these dramas are usually just fruitless and diversionary, to take our eyes off the ball – whether it’s off the criminality and shenanigans of public officials, or non-performance of Government, or other things that Government doesn’t want us to see or harp on.

I extend the sentiments of lack of derivable benefits for Nigerians, to the debate about the zoning of the Presidency for the 2023 election, and where the next President of Nigeria should hail from. We had a similar experience in 2015; the question is what revolutionary improvement has the zoning debate or its resolution, brought to our living conditions since the last debate of 2015? Apart from the improvement in the road and railway network, many swear that Nigerians are worse off than before. Take for example, the issue of oil prices/revenue. We spent the last six and a half years listening to how PDP stole and squandered oil revenues when oil prices were at an all time high, and what Nigeria could have done with the funds, especially in terms of building infrastructure (instead of borrowing incessantly as they say we are constrained to do now).

Today, now that oil prices are at the same or higher peak they once reached pre-2014, the tune has changed; and we are hearing from the APC/Minister of State of Petroleum how the increase in oil prices may suddenly not be to our advantage! All I see in all this needless arguments, are double-talk, hypocrisy, selfishness and self-centredness on the part of politicians. I see no altruism or patriotism, or interest in the progress of Nigeria. I see business as usual, whether PDP or APC. And, it’s rather disheartening since we are entering a new electoral cycle; having an awful premonition that, not much will change for the better even if we debate till we are blue in the face!

EAMB

We have been on the issue of the Electoral Act (Amendment) Bill (EAMB) for years; and finally, this time around, the President assented to the Bill last Friday. Optimists believe that the passing of the Bill will be of benefit to Nigerians, as it will allow for more credible elections; that there are so many positive pro-democratic innovations in the EAMB. I think it’s safe to say that majority of Nigerians agree that we want free and fair elections, and if the EAMB is a sure means to this end, its good that the President signed it in the nick of time. Many, especially the civil society organisations, had expressed their desire for the National Assembly (NASS) to go ahead and override the President in accordance with Section 58(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) (the Constitution), should he have refused to give his assent yet again.

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One of the main causes of dissension between the Legislators and the Executive, is Section 84(10) of the EAMB which provides that a political appointee, for example, a Minister cannot vote or be voted for at a party Congress or Convention. The purport of this is that such political appointee cannot be a delegate or aspirant, unless he/she resigns from such political appointment; and resignation would have to be about a year before the election, because of the time lines for the events that build up through the Conventions to the Primaries and finally the elections. This would certainly not go down well with political appointees, who for one, prefer to use the power, paraphernalia of office and State funds to win their elections. This is called ‘eating your cake and having it’!

But, be that as it may, Section 84(10) of the EAMB, now Electoral Act 2022 (EA) is unconstitutional, since the kind of limitation it seeks to place on political appointees, is only extended to people employed in the civil or public service of the Federation – which I am not sure if political appointees are considered to be; and even if political appointees are considered as such, the Constitution only requires civil or public servants to resign from their employment 30 days before the date of the election. It doesn’t stop them from voting or being voted for either as a delegate or aspirant at a Convention or Congress. This is so because, when it is 30 days to an election, all processes including primaries leading up to an election are completed, except the actual election itself. See Sections 66(1)(f), 107(1)(f),137(1)(g). & 182(1)(g) of the Constitution.

The insertion of Section 84(10) into the EA, looks more like a struggle for supremacy between the Legislature and the higher levels of the Executive!

Luckily, even though the President cited the said Section 84(10) as unconstitutional, the unresolved issue was not important enough to stall the passing of the EAMB into law this time around, as the President put the interest of Nigerians first. In my humble opinion, the President’s last two decisions – his last refusal to assent and now giving his assent to the EAMB, were sound, and in the interest of Nigerians.

Candidates

Now that we have a better mechanism in place to conduct our upcoming elections, the next question is whether the outcomes will still be any better, if those who are able to clinch their party tickets are established liars, fraudsters, document forgers, pseudo criminals and actual criminals? How will Nigerians be able to truly reap the fruits of credible elections, if political parties can still foist useless candidates on us, especially with such a low entry point for those vying for political office in Nigeria?

I recently saw on social media, that an individual who was disgraced out of office (a political appointee) on allegations that he used fake WASC results to gain admission into University where he graduated, and then went on to obtain his professional qualifications, vowed to vie for an elective position for the National Assembly in 2023. The truth of the matter is, without any actual conviction from a court of competent jurisdiction in the last 10 years, Section 66 of the Constitution does not bar him from running. By virtue of Section 65(2)(a) of the Constitution, this same individual can submit a form to INEC as an aspirant, stating that he was educated up to Secondary School Certificate level or it’s equivalent, and not actually present a Secondary School Leaving Certificate (since it is already tainted); or worse still, simply present his Primary Six School Leaving Certificate (Section 318 of the Constitution), and participate in the primaries and/or actual election and win. In a decent society, such a person would have retired to his village in shame, never to be heard from again, if not already prosecuted for forgery amongst other offences and doing jail time.

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I do not even comprehend how Section 318 of the Constitution can equate a Primary Six School Leaving Certificate with that of a Secondary School one. A student obtains the latter certificate, after going to school for an additional five or six years, post-primary school. How then can a primary school certificate, be the equivalent of a secondary school one? The latter is obviously more advanced than the former. Nevertheless, I’m sure many of you will agree that this is a minimum, low level entry point, especially with the decline in the standard of education. We have not forgotten how Comrade Oshiomhole, the immediate past Governor of Edo State, was able to fish out a primary school teacher who was unable to read her credentials. The bar should be raised.

Similarly, if former House of Representatives Speaker, Salisu Buhari of the ‘Torontogate’ scandal decided to go to University after the exposure of his fake credentials, and he decides to return and run for Senate or even the Presidency, he can simply present his Primary School Leaving Certificate, or just his new qualification, and he’s all set to go.

What is the interpretation of Sections 66(1)(i), 137(1)(j) & 182(1)(j) of the Constitution which disqualifies an individual who has presented a forged certificate to INEC from running for office? It seems that the disqualification of such aspirant/candidate, is limited to the particular election he presented the forged documentation to INEC for in the past, and therefore, bears no relevance to the new election he/she will be running for, as long as the faulty documents are not being re-presented. Apparently, INEC is not meant to be a record keeper; and issues with fraudulent and forged documents are not the business of INEC, but that of fellow aspirants or whoever wants to challenge them in a court of competent jurisdiction, or the Police to take up as a criminal matter! Even if the erstwhile Speaker had been jailed, which he was not, it’s been well over 10 years since the incident, and the Constitution only bars from running, those whose conviction is less than 10 years before the date of the election. So, for some who are waiting to raise old certificate issues with aspirants in the upcoming elections, they may be sorely disappointed.

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Former AGF Aondoakaa

This is why I find the news stories making the rounds on social media, that former Attorney-General of the Federation, Michael Aondoakaa, in the recent judgement handed down by the Supreme Court in his case, was barred from holding public office for life. Though I have not had the benefit of reading the judgement in this case, such a decision would run foul of the Constitution, particularly Sections 65 & 66 thereof, which govern the qualifications and disqualifications for the House of Representatives and political offices. The maximum of a 10 year bar, is put on a convicted felon who subsequently wants to run for the House of Representatives or become a political appointee.

Conclusion

While the passing of the EAMB into law is an extremely welcome development, it certainly does not mark the end of electoral challenges in Nigeria. While it will definitely put serious candidates from other political parties besides PDP and APC in a better stead, in terms of their votes not being wasted or lost within the cover of massive rigging and election malpractice; for the two major parties, APC and PDP, it will be probably be garbage in and garbage out, if some of the qualifications and disqualifications for elective office are not revisited to complement the progress and development that the Electoral Act 2022 is poised to bring to the Nigerian electoral process.

Already, a number of aspirants with one cloud or the other hanging over their heads, are emerging, and they are not caught by the disqualifications listed in the Constitution. For instance, at a point in time, we had a member of the Senate, who was wanted in the US on drug charges. Having succeeded in escaping extradition, as a Senator, he was subsequently able to secure his party, PDP’s ticket, and run for the position of Governor. The fact that he was a fugitive, is not considered in the Constitution; and some will argue that, you are innocent until you are proven guilty (Section 36(5) of the Constitution) (even if that presumption of innocence may possibly only be as a result of your evasion of the law, and denial of a court of competent jurisdiction from determining your culpability or otherwise). But, as things stand now, the extant constitutional provisions do not hamper the ambitions of such people. We need some amendments, to take into consideration some of these lingering issues which are not envisaged by the Constitution, to make for better quality candidates. This will in turn, make the innovations in the Electoral Act 2022 more meaningful.

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