The electoral process of a state goes a long way in the determination of governance in the given state. The electoral process is an ideal and integral part of the democratic process, whether in a developed or developing nation. A malfunctioning electoral system inadvertently produces maladministration or bad governance. In most developing countries, the crisis of governance is usually the major problem because of the manner people ascend into political power.1 So for a state to thrive in good governance, it must strive to have an electoral law to meet the modern-day and developmental challenges. Just recently, on 25th February 2022,2 His Excellency President Muhammadu Buhari signed into law the much-awaited and somewhat controversial Electoral Act Amendment Bill. This article would review the innovations and implications of the key provisions of the new Electoral Act and conclude on the developmental trend its implementation would bring to the electoral process in Nigeria.
2.0. Key Provisions Introduced in the New Act.
The Electoral Act 2022 introduced a lot of changes that without a doubt will immensely impact on the electoral process in Nigeria. This innovation will go a long way in reducing manipulation of the electoral process or rigging of elections in Nigeria. This Key Changes shall be reviewed below.
2.1 Financial Independence of INEC and Early Release of Election Funds to INEC
The Electoral Act 2022 has established the Independent National Electoral Commission Fund, where payments from the Federal Government, interest on investments made from the fund, and aids, grants, or other accruals shall be paid to enable the Independent National Electoral Commission to perform its functions. 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 as provided under the former Act3. Section 3(3) of the Electoral Act 2022 provides that funds for general elections must be released at least one year before the election. Under the repealed Electoral Act (as Amended by The Electoral (Amendment) Act NO 15, 2015) (2010), the disbursement of funds for the elections shall be made in accordance with rules set out by the commission.
2.2 Early Conduct of Primaries and Submission of Candidates' List
The New Act4 stipulates that political parties shall hold a primary and submit the list of candidates not later than 180 days before the date appointed for a general election. This is in contrast to the former Act which prescribed that this submission should be done not less than 60 days before the date of general elections. The change in the timeframe to submit the names of party candidates from 60 days to 180 days makes it mandatory for political parties to conduct their primaries early enough and validly so, to meet up with the submission of their list of candidates at least 180 days before the general elections.
2.3 Aspirants have the power to institute an action against False Information
By virtue of Section 29(5)5 only aspirants who participated in a primary election of political parties can approach the Federal High Court for redress where there is reasonable grounds to believe that any information given by his political party's candidate in his affidavit or any document submitted by that candidate in relation to his constitutional requirement to contest the election is false. Unlike the repealed Act where any member of the public can challenge a candidate with false information, the new Act has restricted that to only aspirants who participated in primaries wherein the candidate with false information emerged. This, therefore, stops members of the public from challenging a candidate that submits false information to INEC because it is only a candidate that took part in the primary that can do so.
2.4 Legal backing of Electronic voting and Transmission of Results
The Electoral Act 20226 gives legal backing for the use of smart card readers, electronic accreditation of voters, and any other voter accreditation technology that INEC deploys. Where the card ready deployed by INEC fails to function and a fresh card reader or technological or technological device is not deployed the election shall be canceled and another election scheduled within 24 hours. It also gives legal backing to the electronic transmission of results as INEC now has the power to determine the manner(s) of transmission of results. This means that the era of manual voting or manual collation of results has come to an end and rigging is reduced to the barest minimum.
2.5 Timeframe for Publication of Election Notice extended
The Electoral Act 2022 in Section 28 stipulates that the Commission shall not later than 360 days before the day appointed for holding of an election under this Act, publish a notice in each State of the Federation and the Federal Capital Territory stating the date of the election and appointing the place at which nomination papers are to be delivered.7 The notice is to be published in each constituency in respect of which an election is to be held.8
This is a clear departure from the repealed Electoral Act which provided that the Commission should publish this notice not later than 90 days before the date of the election.9 The implication of the extension of time given to the Commission to publish notice is that the Commission has more time to prepare for the election and by extension also gives the political parties more time to conduct their primaries, choose their candidates and prepare for the general election. By this, political parties have no excuse with respect to their internal political theatrics and Candidacy over time.
2.6 Political Appointee not Eligible 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 10. 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 for the purpose of the nomination of candidates for any election. For a political appointee to vote and be voted for in a party primary he must vacate the position before he or she can be eligible to participate in a primary election, convention, or congress of political parties either as a candidate or as a delegate. Please note that this provision only covers political appointees and does not extend to elected political office holders or public officer holders. Note also that the period when the political appointees should relinquish the position seems to be immaterial as what is important is that the political appointee must have vacated the political appointment before the convention or congress of their party.
Prior to this provision political appointees have most times been mistaken for political office holders and public office holders who have a constitutional provision with respect to resignation before contesting office. Sections 66(1)(f), 107(1)(f), 137(1)(g) 182(1)(g) of the 1999 constitution stipulates that elected public officers, which include civil servants, who want to contest an election must have resigned their position at least 30 days to the date of the election. It is instructive to state that this Constitutional provision does not categorically apply to political appointees but to political office holders or public office holders. This misunderstanding and misapplication of the law gave room to a lot of people calling for the resignation of the Ministers and other political appointees to resign 30 days to the date of election11. The Court has in the plethora of cases ruled that political appointees are not public office holders and the disparity highlighted in Adamu v. Takori (2009) LPELR-3593(CA), Hon. commissioner for local government and chieftaincy affairs & Anor v. Oba Adeyinka Onakade (2016) LPELR-41133(CA), Oni v. Fayemi & ORS (2019)12
This provision appears to have a positive effect because it will bar political appointees from using their influence in contesting elections and prevent them from remaining in the corridors of power for longer than they are supposed to thereby giving room for fresh candidates with no prior political appointments to take up positions, instead of recycling the same old candidates, as having a breath of fresh air has a way of deepening political development. The provision has been greeted with a lot of controversies and criticism. Some see it as a welcome development while others see it as an infringement of the fundamental human right of the political appointee as enshrined in Chapter IV of the 1999 Constitution of the Federal Republic of Nigeria as amended.
In FHC/UM/CS/26/2022 Chief Nduka Eddie V. Attorney General of the Federation & Ors the Plaintiff challenged the legality of Section 84(12) for breaching the fundamental human right of the political appointees therefore should be struck down or deleted. The Federal High Court agreed with the Plaintiff and strike down Section 84(12) directed the Attorney General of the Federation to delete the same from the new Act13.
On appeal to the Court of Appeal in CA/OW/87/2022 PDP V.Chief Nduka Eddie & Ors14 the judgment was set aside on the ground that the Plaintiff/Respondent did not show the cause of action and or locus standi but agreed as obiter that Section 84(12) infringes on the right of political appointees. The Plaintiff/Respondent has appealed to the Supreme Court and we can't wait to hear the outcome.
The President also challenged the Provision of Section 84(12) at the Supreme Court but the court struck out the suit without even going into the merit on the ground that there is no dispute between the President and the National Assembly to invoke the original jurisdiction of the court moreso it will be a violation of Constitutional process for the President to urge the court to delete a law that the President took part in making by assenting same. The last is not heard about Section 84(12) until the Supreme Court determines the appeal pending before it.
2.7 Virtually impaired, Special needs, and Vulnerable Voters.
The new Act in Section 5415 provides that voters with visual impairment and other forms of disability who is otherwise unable to distinguish symbol or who suffers from any other physical disability may be accompanied into the polling unit by a person chosen by him or her and that person shall, informing the presiding officer of the disability, be permitted to accompany the voter into the voting compartment and assist the voter to make his or her mark in accordance with the procedure prescribed by the Commission.
The Commission shall take reasonable steps to answer 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.
The effect of this provision is that persons living with disability are recognized and given a sense of belonging in exercising their inalienable rights notwithstanding their physical disability. That is to say, your state of health does not take away your constitutional right.
2.8 Provision for Central Electronic Voters Database
The Electoral Act 2022 has added a central database16 amongst its new innovations and this is commendable. Under the former Act, this Register was kept in manual or hardcopy format without more17. Section 9(2) of the new Act provides that the Commission shall keep the Register of Voters at its National Headquarters and other locations, provided that the Register shall be kept in electronic format in its central database, in addition to being kept in manual, printed, paper-based record or hardcopy format.
This provision is laudable as it will promote transparency and effectiveness in the Commission's record-keeping and in tracking the number of registered voters who will be voting in the upcoming elections, thereby curbing illegal voting by non-registered voters and also aiding a petitioner to situate his petition in the event of an election petition.
2.9 Redefinition of OverVoting
The Electoral Act 2022 provides that where the number of votes cast at an election in any polling unit exceeds the number of accredited voters in that polling unit, the Presiding officer shall cancel the result of the election in that polling unit.18 This is a sharp contrast from the old Act which provided that it is when the number of votes cast at an election in any polling unit exceeds the number of registered voters in that polling unit, that the Presiding officer should cancel the result of the election in that polling unit.19
Flowing from the above, overvoting would mean that votes cast at a polling unit exceed the number of accredited voters and not the number of registered voters as provided in the former Act. 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.
2.10 The Commission's Power of Review of Involuntarily Declared Result
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 was not made voluntarily or was made contrary to the provisions of the law, regulations, and guidelines, and manual for the election.20 The new Act further gave the power to review the decision of the returning officer to an election tribunal or court of competent jurisdiction in an election petition proceeding.21
This provision will go a long way in curbing the incidents of forcing a returning officer to make a declaration under duress which was alleged against Sen. Rochas Okorocha the former Governor of Imo State by the returning officer in his last election.22
2.11 Early Commencement and a 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 polling day and end 24 hours prior to that day.23 Under the old Act, the period of campaigning in public by every political party shall commence 90 days before polling day and end 24 hours prior to that day.24
This affords political parties and their candidates ample time to market their party and candidates to the populace and plan ways to ensure that they succeed in the election without giving the reason for any failure on inadequate time for the campaign.
2.12 Death of Candidate before or after the election.
The new Act has put the controversy usually generated by the death of a Candidate before or after the election to rest, as the death of a candidate in elections had generated lots of conflicts among political parties and political actors in the past because the old act did not take care of such issue hence we result to the doctrine of necessity leading to lawsuits. The case of the Kogi State Gubernatorial election will come to mind. In order to take care of the lacuna in the former Act, the new Act provides that where before the commencement of polls a candidate dies, the election shall be postponed and shall appoint some other convenient date within 14 days of the candidate's death.25
If after the commencement of polls and before the announcement of the 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.26 Where the election is for a legislative house, the election shall start afresh and the political party whose candidate died may if it intends to continue to participate in the election, conduct a fresh primary within 14 days of the death of its candidate and submit the name of a new candidate to the Commission to replace the dead candidate.27
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.28
3.0 The Implication and developmental trend of Electoral Act 2022 brings.
Lawmaking is one of the developmental processes of any state. When new laws are made, it brings or introduces new regulation of conduct and this is applicable to the new law made which has the tendency if properly applied or implemented to revolutionize our electoral system. One of the major development that the new Act brought is that it has queued into the digital or computer age by having an electronic database and also the electronic transmission of results. This will effectively make us live within the modern-day reality and not the old order.
It will also reduce rigging or manipulation of the election process in Nigeria. Election rigging is one of the major problems of Nigeria because it is the thwarting of the choice of the people and when you thwart the choice of the people it produces wrong candidates who will not deliver the dividends of democracy.
The new electoral Act has brought development in pre-election and election petitions as it will definitely not be the same. In fact, if the Act is implemented and well applied it will drastically reduce the interference of the Court in election matters.
Without much ado, the Electoral Act 2022 is a laudable effort to keep the Nigerian electoral process up to standard practice with that of other democratic countries all over the world, especially as we approach the 2023 general elections.It is safe to conclude that the new Electoral Act is a timely improvement of the old one and if well applied or implemented will go a long way in bringing sanity and transparency to Nigeria's chaotic electioneering process.
3. Section 3(1)-(2) of the Electoral Act 2022.
4. Section 29(1) of the Electoral Act, 2022
5. Electoral Act,2022.
6. Sections 47 and 50(2) of the Electoral Act 2022
7. Section 28(1) of the Electoral Act 2022
8. Section 28(2) of the Electoral Act 2022
9. Section 30(1) of the Electoral Act 2010
10. Section 84(12) of the Electoral Act 2022
11. https://www.thecable.ng/electoral-act-amaechi-ngige-sylva-must-resign-before-june-if-they-want-to-contest-presidency accessed 30th June 2022.
12. (2019) LPELR-49291(SC)
13. https://www.vanguardngr.com/2022/03/court-nullifies-section-8412-of-amended-electoral-act/, accessed 30th June 2022.
15. Electoral Act 2022.
16. Section 9(2) Electoral Act, 2022
17. Section 9(2) Electoral Act,2010.
18. Section 51(2) Electoral Act 2022
19. Section 53(2) Electoral Act 2010
20. Section 65(1) Electoral Act 2022.
21. Section 65(2) Electoral Act 2022.
23. Section 94(1) Electoral Act 2022.
24. Section 99(1) Electoral Act (as amended by The Electoral (amendment) Act NO 15, 2015)(2010)
25. Section 34((1) Electoral Act 2022.
26. Section 34(3)(a) Electoral Act 2022
27. Section 34(3)(b) Electoral Act 2022.
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