Ending Electoral Amendment Bill Controversy

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The National Assembly addressed President Muhammadu Buhari’s concerns about direct primaries, insecurity, and other controversial clauses in the revised Electoral Act Amendment Bill it transmitted to him on January 31, 2022. But the lawmakers also inserted several controversial new clauses in the Bill. Governors and other stakeholders are mounting pressure on the President to – for the fifth time since 2018 – reject the bill, notwithstanding the potentially disastrous consequences that might have on the Independent National Electoral Commission (INEC)’s preparations for next year’s general elections. What should the President do? Lawyers offer a way out. ADEBISI ONANUGA reports

After six failed attempts in seven years at passing the Electoral Act Amendment Bill, the National Assembly transmitted a reworked version of the Bill to President Muhammadu Buhari on January 31, 2022. Hope was high that this time, about a year to the 2023 general elections, the country would get a document that would help to fufil Nigerians’ yearning for a free and credible poll. This was because the new bill addressed the President’s reasons for rejecting the last amendments to the Bill last year.

Buhari had via a December 13, 2021 letter read at the Senate on December 21, 2021 communicated his decision to withhold assent to the re-worked Electoral Act Amendment Bill 2021, passed by both chambers of the National Assembly.

The President, in the letter, expressed concern about a number of issues in the document, particularly as contained in Clause 84.

The clause deals with the mode of primary election to be used by political parties to select candidates for elective offices.

Referencing the clause, the President cited insecurity, the cost of conducting direct primaries and infringement on the rights of Nigerians to participate in governance as his reasons for declining assent.

In the bill earlier passed by the National Assembly in 2021, the lawmakers prescribed that political parties use only a direct mode of primary.

The President promised to sign the bill if changes were made to the clause, to include the addition of consensus candidates and indirect primary options to the mode of selecting a candidate for an election.

In a brief sitting on January 25, 2020, both the Senate and the House of Representatives gave in to the President’s demands and amended the controversial Clause 84 of the bill.

But while the Senate allowed for direct or indirect primaries or consensus as procedures for selecting candidates for elective offices, the House of Representatives adopted only direct and indirect primaries.

But in the harmonised version of the bill considered by the Senate, the lawmakers adopted all three modes of primaries, with a clear definition of “how parties can use consensus to elect candidates.”

Past attempts to amend Electoral Act

The amendments boosted optimism that perhaps, this time, the Presidnt would give the Bill the green light.

This was because the Buhari administration has declined assent to the Electoral Act Amendment Bill six times in the last seven years, for a vairety of reasons.

The President rejected the amendment bill for the first time in February 2018 due to provisions that reordered the sequence of elections.

A second amendment bill passed by both chambers of the National Assembly and sent to him in June 2018 was not given any consideration.

In July 2018, the President again refused to sign another version of the amendment bill transmitted to him by the National Assembly for the third time, citing concerns about the increased cost of conducting elections, among other issues.

He declined assent to the amendment bill for the fourth time in December 2018, after the National Assembly addressed all of his previous reasons for refusing to sign.

The President stated in his December 6, 2018 letter, addressed to then Senate President Bukola Saraki and Speaker of the House of Representatives Yakubu Dogara, that he would not sign the electoral bill while the country was preparing for the 2019 elections because doing so would cause confusion and uncertainty in the polity.

He promised that he would sign the bill after the 2019 elections. But declined to do so in December 2021 – the fifth time.

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The amended electoral bill was passed by the National Assembly on January 25, 2022, and it provided political parties with three models of primary elections: direct, indirect, and consensus.

The most recent transmission of the electoral bill to Buhari marks the sixth time he (Buhari) will be tasked with signing legislation aimed at reforming the country’s electoral system.

Features of the reworked Bill

The Electoral Act Amendment Bill 2021 contains many controversial clauses.

Aside from mandatory direct primaries and electronic means of transmitting election results, there is also a clause requiring appointed political office holders, including ministers, commissioners and others to resign before 2023 election primaries.

Governors, especially those of the All Progressives Congress (APC), and some political office holders are believed to be against the controversial clauses.

It is common practice for appointed political office holders to remain in office while contesting in their party’s primaries.

Furthermore, there is another clause recommending that before a consensus candidate of a party can emerge, all contestants must sign a written agreement that they have consented to the adoption of such an aspirant. If one of the contestants is dissenting, no one can become a consensus candidate. Instead, all the contestants will either go for direct or indirect primary election.

“They inserted in the re-amended bill that if one of the contestants is dissenting, no one can become a consensus candidate. Instead, all the contestants will either go for direct or indirect primary election,” a source told The Nation.

It was gathered that the Senators and the Representatives put the difficult clause on consensus to stop the governors from imposing any anointed aspirant.

The Office of the Attorney-General of the Federation and Minister of Justice is also believed to be uncomfortable with the re-amended bill. It was gathered further that the two groups are mounting pressure on the President to withhold his assent until the controversial clauses are amended or dropped.

Another, perhaps, less controversial clause is the one raising campaign spending by a presidential candidate from N1 billion to N5 billion among others.

A  new amendment to the Electoral Act is believed to preclude the possibility of voters challenging credentials submitted to INEC by candidates.

The proposal will allow only those who participated in the party primary to challenge in court, the school certificates, the birth certificate and other credentials of a co-contestant.

Currently, Section 31(5) of the Electoral Act reads, “Any person who has reasonable grounds to believe that any information given by a candidate in the affidavit or any document submitted by that candidate is false may file a suit at the Federal High Court, High Court of a State or the FCT (Federal Capital Territory) against such a person seeking a declaration that the information contained in the affidavit is false.”

But the new amendment reads, “Any aspirant who participated in the primaries of his political party who has reasonable grounds to believe that any information given by his political party’s candidate in the affidavit or any document submitted by that candidate in relation to his constitutional requirements to contest the election is false, may file a suit at the Federal High Court against that candidate seeking a declaration that the information contained in the affidavit is false.”

Consequences of failure to assent

What happens if the President – for the seventh time, withholds assent to the Bill? One of the major consequences would be its effect on the Independent National Electoral Commission (INEC)’s preparations for the 2023 general election.

INEC had previously stated that the timetable for the 2023 general election would not be released until the electoral bill was signed into law.

Its Chairman, Mahmood Yakubu, stated at a consultative meeting with political parties in Abuja on January 19 that “as soon as it (the electoral bill) is signed into law, the Commission would quickly release the timetable and schedule of activities for the 2023 general election based on the new law.”

Time running out

The Convener, Nigeria Civil Society Situation Room and Country director, ActionAids Nigeria, Ene Obi, emphasised this last Wednesday in a Channels TV programme that:  “Time is running out….We urge him to sign the bill. We cannot wait again. The Independent National Electoral Commission is ready to move; timetable for the elections beginning from February next year has already been drawn.

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“Before then, we have the off-season gubernatorial elections in Ekiti and Osun. The INEC needs the document to make adequate preparations, but here we are waiting for the President.”

What the President should do

It is common knowledge that election matters are purely constitutional matters. It is against this background that lawyers versed in constitutional matters shared their informed views on the matter. They included a former President of the Nigerian Bar Association (NBA),  Dr. Olisa Agbakoba (SAN), Chief Wale Taiwo (SAN), Secretary of the Body of Senior Advocates of Nigeria (SAN) Mr. Seyi Sowemimo (SAN), Chief Wale Taiwo (SAN), Kunle Adegoke (SAN) and Chairman NBA Port-Harcourt branch Mr. Prince Nyekwere.

Dr. Agbakoba was generally positive about the bill, new amendments notwithstanding.

He said: “I broadly support the revised electoral Bill. The strict requirement that a consensus candidate may only be selected by the consent of other aspirants is a very important requirement.

“It will ensure the consensus candidate is popular within the party and is acceptable.”

On the matter of campaign funds, he reasoned that it could lead to monetisation of electioneering, but that there could be a way out.

Agbakoba said: “The campaign funds authorised by the bill may have the unfortunate effect of monetising politics and it is hoped that a strong legal framework to scrutinise spendings will also be enacted including creating an electoral offences commission.

“On the whole, the electoral bill is slowly and steadily moving towards a strong framework to ensure transparency in the electoral process.”

Mr. Sowemimo believes that the new amendments were not enough reasons for the President to again deny assent to the bill.

He, however, queried the basis for permitting presidential campaign funding to rise up to N5billion.

“It gives me the impression that politics is being monitored at an alarming rate. Why would someone be using N5 billion to do an election? Maybe I’m surprised because I’m not a politician. Where will such money come from? How would the person recoup the money?”

Taiwo  noted that  the major highlights of the Electoral Act Amendment Bill 2021, have been the issue of how political parties operate their internal processes for the emergence of candidates i.e. on whether it should be by direct or indirect primaries or by consensus.

He reasoned that though some politicians insist that parties should be at liberty to determine their internal systems, “we must not lose sight of the fact that whatever be the system in use, it will end up affecting the political terrain generally.”

He disapproved of the idea of consensus candidates, describing it as “distasteful”.

He added: “It is abhorrent to democratic principles where dissents and differences in opinions is the hallmark with the majority having their way. No aspirant should be afraid of standing in his intra-party contest to emerge as the party’s candidate.”

As for the clause on resignation before primaries, Taiwo saw nothing wrong with barring aspirants from clinging onto their appointed political offices while seeking elective positions.

“I believe that is ideal. All those seeking elective offices must be made to resign and go into contest in their party primaries without having state resources at their disposals. This will allow for a fair playing field as no one will use their appointed role to further their political ambitions,” he said.

Campaign funds limits necessary

He argued that if INEC had not been up to the task of monitoring election campaign finance before this proposed amendment to N5billion for presidential candidates.

Taiwo said: “Desirable as it is, I believe that the solution lies more in having a robust party system in the first place as recent experiences have shown that candidates become beholden to different interests and groups who support the candidates with their eyes set on having some returns.

“I am of the view that the spending cap is necessary but as to how INEC would monitor it or aggrieved citizens approaching the courts for redress when infringement occurs, that is another thing on its own’’.

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Why President Buhari must assent the bill

Controversial as some of the clauses in the amendment bill are, Taiwo was of the view that same should receive presidential assent without further delay.

He said: “The 2023 General Elections are now just one year and one week away i.e. February 18, 2023 for the presidential and national assembly elections and the remaining elections following shortly after. The INEC chairman has expressed the position that detailed timeline will not be made public without a clear cut legislative position being put in place. That alone should give everyone concern and thus motivate President Buhari to act promptly.

“I do not see why the President should delay assent since he is personally not a contestant and thus not so much in terms of personal interest. More so, delay will not be ideal given Nigeria’s position within the Ecowas sub-region which has in place the protocol on good governance and sustainable democracy.

“At last count, democracy is under a stress test in the sub-region with military coup d’etats in at least four countries in the last 18 months and an attempted take-over in another just last week. To be able to command respect, Nigeria must take the lead and ensuring that our electoral system is on a sound footing is one way of showing leadership. Hence, assent to the bill is necessary”, he further stated.

Adegoke also urged the President to go on and give his assent to the bill.

He said: “I believe the President should proceed to assent to the Bill. The recognition of direct or indirect primary and the room for consensus is a recognition of what has always been part of our law.

“The National Assembly has done well in listening to reason rather than making it an ego issue.

“It is within the democratic rights of the political parties to determine the nature of primary elections they intend to have whether direct, indirect or by consensus.

“It is also commendable that the National Assembly has provided an objective criterion for determining if there is a consensus which can only be the case where all contestants agree to the nomination of one of them as the standard-bearer of the party. Where there is a single dissent among tens of candidates, there is no consensus.

“Consensus does not operate by the imposition of the strongman of the party. It must be a product of the agreement of all aspirants.

“The best way to go about it is to ensure that there is a document signed by all aspirants agreeing that one of them should be the standard-bearer. This is an objective method of achieving consensus and not by the whims of a godfather.

“Where there is dissent, the aspirants must go for primary election whether by direct or indirect method. This is commendable.”

He, however, faulted the clause concerning resignation before party primaries.

Adegoke said: “With respect to the clause requiring political appointees to resign before contesting an election, I believe it is an unnecessary provision.

“If the essence is to prevent the use of state resources to finance the election of such a person, it should also be the case that elected officials too who are seeking re-election should be made to resign or step aside so as not to deploy state resources at their disposal to seek re-election.

“I believe the President should not assent to this. It is not a necessary provision.”

Nyekwere, however, differed on the N5b campaign spending ceiling.

Nyekwere suggested that politicians, especially at the governorship  level spend over N1billion on electioneering, this the N5b was not shocking.

To him, presidential campaigns cost over N5billion, adding that no matter the official spending cap, candidates would find ways to spend more, possibly through shell companies and other unofficial sources.

He called for a way to check campaign spending.

The Nation

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