Electoral Act 2022 – A New Hope For Credible Elections In Nigeria?

The Nigerian public was greeted with the good news on Friday, 25^th February, 2022 that the long-awaited Electoral Amendment Bill 2022 had been signed into law by the President of the Federal Republic of Nigeria. The Bill was passed by the National Assembly on 10th November, 2021 and it was forwarded to Mr. President for his presidential assent via a letter dated on 31st January, 2022.

The New Electoral Act (hereinafter referred to as The New Act) introduced certain innovative features aimed at using technological innovations to ease and ultimately conduct credible elections in the country. Elections can be likened to the track-and-field sport, relay race, wherein one government passes the baton of leadership on to another. It is the bedrock of a legitimate government in any democratic dispensation. Where elections are fraught with intimidation, vote buying, rigging, forgery of ballot papers, ballot box snatching and other electoral malpractices, the whole process loses all credibility and whatever government that emerges cannot be said to be credible.

With a view to curbing some of these aforementioned electoral vices, the New Act was passed into law. The following are some of the commendable and innovative features in the New Act:

1. CONDUCT OF POLITICAL PARTY PRIMARIES.

Under Section 31(1) of the Electoral Act, 2015 (As Amended), (hereinafter referred to as the Old Act) every political party has only 60 days before the general election to submit to the INEC the list of the candidates the party proposes to sponsor at the elections. The New Act has now increased that time period from 60 days to 180 days. This is good news for political parties as they now have time to put their house in order and conduct their primaries. The New Act also makes provision for the conduct of fresh primaries in the event of the demise of a candidate after the commencement of the polls but before the declaration of final results. This is a novel provision and it has filled a lacuna in the Old Act. Section 36(1) of the Old Act only makes provision for situations where a candidate dies after delivery of nomination paper and before the commencement of the poll. To appreciate this point, the Court (Per NGWUTA, J.S.C.) in Wada & Ors v. Bello & Ors[1] had this to say;

“… My Lords, while Section 36(1) of the Electoral Act made provision for what should be done in the event of the death of a nominated candidate after the delivery of nomination paper but before the commencement of the poll, neither the Electoral Act, 2010 (as amended) nor the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provided for what to do in the event of the death of a candidate after the commencement of the poll as in the case at hand. The death of the original candidate of the 2nd respondent after the commencement of the poll in the November 21 election in Kogi State left a yawning gap in the nation’s electoral process without any provision for filling the gap. In the situation such as this, it amounts to abdication of duty for the electoral umpire and the Tribunal and Court to fold their hands and bemoan the fact that the legislature failed to do the impossible – providing for all exigencies both in the present and the future in their legislative duties…”

The Court then went further to apply the doctrine of agency in filling this “yawning gap” and held that;

“… I think that the decision of this Court in Amaechi v. INEC (supra), encompasses the situation created by the death of the 2nd respondent’s candidate. The decision finds support in Section 221 of the Constitution (supra) hereunder reproduced: “S.221: No association, other than a political party, shall canvass for votes for any candidate at any election or contribute to the funds of any political party or to the election expenses of any candidate at an election.” A political party is an abstraction. It has to canvass for votes through its members as agents, in the same way it contests, wins or loses elections through a candidate it nominates who acts as its agent. There is no provision for independent candidates. The candidate nominated to contest at an election by his party acts as an agent of his party. He is, as it were, an agent of a disclosed principal and as far as third parties are involved, benefits and liabilities accruing to the candidate (as agent) belong to his party (the disclosed principal). See Uwah v. Akpabio (supra); Niger Progress Ltd v. North East Line Corporation (1989) 3 NWLR (Pt. 107) 68; Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290; Osigwe v. PS PLS (Mgt.) Consortium Ltd (2009) All FLWR (Pt. 470) 607, (2009) 3 NWLR (Pt. 1128) 378. If an agent (candidate) of the party dies, or withdraws from the contest, the political party can substitute the dead candidate or the candidate who has withdrawn from the election with another candidate (agent) subject to the provisions of the Act. There is continuity as the new candidate starts and continues from where the previous candidate stopped…”

The National Assembly, in an apparent awakening from its slumber, has now sought to fill this “yawning gap”. The New Act makes provision for situations where a candidate passes on after commencement of polls but before declaration of result. Under Section 34(3) of the New Act,  If after the commencement of polls and before the announcement of the final result and declaration of a winner, a candidate dies, INEC shall, being satisfied of the fact of the death, suspend the election for a period not more than 21 days; and, in the case of election into 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: Provided that in the 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.

• REVIEW OF ELECTORAL RESULTS BY INEC.

Under Section 65(1) of the New Act, INEC has the power to, within seven days, review the declaration and return where INEC 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. This provision is very commendable and a step in the right direction. In previous elections there have been allegations of INEC officials being forced to declare a particular candidate the winner of an election even where such a candidate did not secure the majority lawful votes cast. The current position of the law is that where results are declared by INEC, they are presumed to be correct and the burden is now on whomever challenging such results to prove the contrary. In PDP & Ors v. INEC[2], it was held that there is always a presumption that the result of the election as declared by the Returning Officer is correct and regular until the contrary is proved by the person who denies the correctness of the result.  A hard burden no doubt for the election petitioner to discharge. Where the petitioner is unable to discharge this burden, the Nigerian populace bears the brunt of having a leader nobody voted for. However, by virtue of this new provision in Section 65(1), a would-be political thug can try all he wants to intimidate or threaten INEC officials and would still not be able to have his way. All the INEC officials have to do is play along and later come out and declare the correct result within the seven days provided.

• THE INEC FUND.

By virtue of Section 3 of the New Act, funds for general elections must be released to INEC at least one year before the election. This makes for more financial freedom to the benefit of INEC and financial autonomy to conduct elections in the best possible way, without fear of being starved of funds.

• ACCREDITATION OF VOTERS.

One issue that has been the bane of conducting credible elections in this country is the issue of unaccredited voters. As a general rule, every adult individual has the right to vote and be voted for in an election.[3] Formerly, there were situations of voters’ discrepancy – registered voters less than accredited voters; whether the registration of a voter is what entitles him to vote and not necessarily whether he has been accredited, etc. In Mairiga & Anor v. Alkali & Ors[4], it was held that accreditation is indeed the foundation or base of every free and fair election. The Court also held in Mairiga’s case that the law is long since settled that in order to prove over-voting at an election, recourse must be had to the voters’ registers to determine the number of persons accredited therein. Any Petition where recourse is not made to the number of persons ticked in the Voters’ Register is bound to fail. What Section 51(2) of the New Act has provided for is accreditation as the determining factor in cases of over-voting. The said Section makes no mention of voters’ register but 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.” The effect of this is the elimination of cases of fake votes. It is now immaterial what number of voters you have registered on the voters’ register. What counts is the number of accredited voters on the day of election. This, it is opined, is a welcome development in our quest for free and fair elections.

• PEOPLE WITH DISABILITIES.

Under Section 54 of the New Act, provision is made for visually impaired voters. Such persons may be accompanied by another person of his choice to the polling unit to assist him in casting his vote. Further, INEC 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.

• SMART CARD READERS AND ELECTRONIC TRANSMISSION OF RESULTS.

In this age of advanced computer technology and the digitization of virtually every sector of human affairs, it is salutatory to see that our electoral system is not held back. The New Act has provided for smart card readers and electronic transmission of results. Section 47 of the New Act provides to the effect that an intending voter shall present his voter’s card to a presiding officer for accreditation at the polling unit in the constituency in which his name is registered. The presiding officer shall use a smart card reader or any other technological device that may be prescribed by INEC for the accreditation of voters, to authenticate the particulars of the intending voter. Where such a smart card reader or any other technological device deployed for accreditation of voters fails to function in any unit and a fresh card reader or technological device is not deployed, the election in that unit shall be cancelled and another election shall be scheduled within 24 hours if INEC is satisfied that the result of the election in that polling unit will substantially affect the final result of the whole election. Furthermore, Section 50(2) of the New Act provides that:

“Subject to Section 63 of this Act, voting at an election and transmission of results under this Act shall be in accordance with the procedure determined by the Commission.”

This section gives INEC the statutory backing for electronic transmission of election results. It is hoped that this provision would be taken advantage of by INEC to deploy technological platforms that will aid speedy and accurate delivery of electoral results from the polling units to the collation centers, and final figures transmitted to the Returning Officer.

• LIMITATION ON POLITICAL CAMPAIGNS.

By virtue of Section 94(1) of the New Act 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. This has the advantage of giving voters more time to scrutinize and know who they are voting for, as the Old Act provided for campaigns to start 90 days before the polling day.

• THE VEXATIOUS SECTION 84.

Mr. President, in his address to the nation while signing the Electoral Bill 2022 into law, observed that Section 84 of the New Act constitutes a disenfranchisement of serving political office holders from voting or being voted for at congresses and conventions of any political party in cases where such congress or convention holds earlier than 30 days to the National Election. The said Section 84 provides thus;

“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.”

The effect of this is that that anyone holding a political office such as ministers, commissioners, special advisers, and so forth must resign the position before they can be eligible to participate in the electoral process either as a candidate or as a delegate. Mr. President was of the opinion that this section will subject serving political office holders to restrictions referred to in Section 40 and 42 of the Constitution of the Federal Republic of Nigeria, 1999 (As Amended).

In closing, the Electoral Act 2022 is a laudable amendment that is long overdue. The innovative provision will aid in the conduct of free and fair elections, all other factors held constant. Elections are barely a year from now. Time will tell if the dream of credible elections can be achieved in Nigeria.

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[1] (2016) LPELR-47015(SC), Pg 37 – 44, Paras F – C

[2] (2014) LPELR 23573, Pg. 55-57, Paras. A-E

[3] Section 77 of the Constitution of the Federal Republic of Nigeria, 1999 As Amended

[4] (2019) LPELR-48486(CA), Pg. 47, Para F