How to prevent electoral shambles in Nigeria, by Prof Attahiru Jega
Professor Attahiru Muhammadu Jega, former National Chairman, Independent National Electoral
Commission, INEC, is a man you have to love to love.
Whereas the relationship was one that experienced immense turbulence on account of individual commitment to service, the meeting between this writer and the former INEC Chairman in far away London in August 2015 was one of conviviality. Jega’s sense of equanimity, despite all that transpired, was infectious and reciprocated. Therefore, when last week a call was placed to the former INEC Chairman, it was in hope, rather than expectation. But he returned the call. Although an interview appointment could not immediately materialise, Professor Jega sent the presentation he made to the Senate Retreat last month.
His expectation that the more salient points of the presentation would be further escalated instead of the sensationalism that greeted the media’s treatment of his paper.
In the following texts are profound words of a man who means well for the electoral system. His review of the Electoral Act, 2022, and observations and possible pathways for better elections in Nigeria should help in assisting a polity that is already pulverised by assaults from political bandits.
Jega was frank and deliberate in his suggestions. A better legal framework for the conduct of elections should, naturally, birth elections that are free, fair and credible. However – and Jega would agree – the devil is in the character of the individuals who would operate the laws guiding the conduct of elections. Below is a thematic presentation of what Jega presented to the legislators.
Challenges and inadequacy of elections
Regrettably and unfortunately, for 24 years, Nigeria has been muddling through democratic development, with aspirations for democratic consolidation, which have been remarkably constrained by enormous challenges. Among the key challenges are: the inadequacy of quality of representation, the lack of sufficient integrity of the electoral processes, and the failure of governance to address the fundamental needs and aspirations of citizens for physical quality of life, human security and human dignity. Addressing these persistent challenges would require continuous, concerted efforts to reform the electoral process, improve the integrity of the preparation and conduct of elections, which has a direct correlation with quality of representation and governance, which are primary requirements for democratic development and consolidation. In particular, periodic review, updating and reforming the legal framework for elections, especially in countries in transition to democracy, such as Nigeria, is an absolute requirement for democratic development and consolidation.
Review of the Electoral Act, 2022
It is therefore necessary for the 10th National Assembly to give priority to an early review of the Electoral Act 2022, so as to substantially improve the legal framework for electoral integrity, taking into consideration outstanding issues not addressed by it, as well as emerging issues, which have been observed in its implementation in the 2023 general elections. As Itodo, of YIAGA-Africa observed, there are notable “ambiguities, complexities and inadequacies” (2023) in the Electoral Act 2022, which need to be addressed/redressed to make the preparations and conduct of elections much better in the next electoral circle towards the 2027 general elections.
Contextualizing Electoral Act 2022
Legislative constitutionally sanctioned parliamentary legal framework for elections commenced in 2002, in preparation for the 2003 elections. Thus far, we have had 7 electoral legislations by the National Assembly passed into law. It commenced with the good practice of passing new legislation or amending existing legislation before the next elections. However, this good practice was abandoned, in spite of demands and advocacy by both INEC and CSOs after the 2011 elections. Two electoral cycles (2011-2015 and 2015-2019) were skipped without desired reforms until a year to the 2023 elections, when the Electoral Act 2022 was passed. It is necessary that Nigeria returns to that good practice, which enhances democratic development and consolidation. Members of the National Assembly have an obligation to remedy this situation, in good time within an electoral cycle, consistent with ECOWAS and AU protocols to which Nigeria is a signatory. The Electoral Act 2022 can be said to be the best legal framework for preparation and conduct of elections in Nigeria’s history, thus far! It represents a landmark in Nigerian legislation. With 153 sections, the Act covers a wide range of issues, meticulously organized into different parts, to give legal backing to, as well as govern and regulate, the Nigerian electoral environment and its processes. The Act contains commendable value-additions, which supersede the previous legislations, and which if appropriately put to good use, would significantly enhance the integrity of Nigerian elections.
What the Electoral Act 2022 seeks to do, with specific examples
Broadly, the Electoral Act 2022 seeks to: strengthen internal democracy with political parties; more decisively/effectively address electoral offences; strengthen inclusion of people with disabilities (PWDs), give legal backing to use of technology in elections; and protect INEC’s independence, especially with regards to having finances to enable preparations and conduct of elections without obstruction and constraints (Electoral Hub 2023). Specific examples, among others, are the following: It gave legal backing to INEC for the use of technology in elections, in the areas of verification and authentication of voters at the polling units; for electronic transmission of results, and for using an electronic register of voters (Sections 47 (2) & (3), 50(2) and 62(2); it improved funding regime for INEC to prepare for and conduct elections without financial constraints, by providing that funds for the conduct of the general elections must be released to INEC at least a year before the elections (Section 3 (3); it improved sanctions and penalties for a range of electoral offences for candidates and political parties; it provides for earlier commencement of campaigns by moving the period from 3 months to an election to 5 months (Section 94); it permits political parties to choose the method of conducting their primaries; it disqualifies political appointees of the executive from being voting delegates at party primaries and conventions, and requires them to resign at least 30 days to election if they choose to contest as candidates in the elections (Section 84(12); it mandates political parties to conduct primaries at least 180 days before of the election and to submit the list of candidates to INEC at least 60 days before that date of election (Section 29(1); it empowers INEC to use only the number of accredited voters in the determination of cases of over-voting (Section ); it introduces a provision, which allows aspirants to challenge the accuracy of information provided by candidates in their sworn Affidavits (Section 29(5); and the Act covers a broad spectrum of electoral offences and provides a wide range of penalties, including fines, disqualification for participation in future elections and imprisonment for individuals, political parties and institutions that engage in the listed offences.
How to improve of Electoral Act 2022 and what legislators must do
Although it can be said that the Electoral Act 2022 is the best in Nigeria’s history, with good provisions, which if used appropriately could add value to the integrity of Nigerian elections; it is not perfect; and there is scope for further legislative action, to incorporate additional provisions drawing on experience with implementation, as well as global best practices, as well as remove ambiguities, clarify and strengthen some of its sections.
-Technology in Elections: Remove the ambiguity evident in Section 64 of the EA2022. As YIAGA-Africa has observed, “The Section is unclear on the stages the collation officers are required to compare physical copies of results and electronically transmitted results, thereby making the results management process susceptible to manipulation and misinterpretation” (October 16, 2022, p. 1). These should be clarified in the Act, or if INEC is to issue regulations and guidelines for this, it should be clearly mandated; make electronic transmission of results mandatory, from the next general elections in 2027, including uploading of polling unit level results and result sheets used at different levels of result collation. INEC would have enough time to prepare for this, if the Act is Amended early enough in the ensuing electoral cycle; make the transparent testing/mock exercise of electoral technologies, with the participation of key electoral stakeholders, mandatory with appropriate timelines; and align the reconfiguration of technological devices used in between elections (presidential and governorship), with election dates and timelines, when drawing up timetable and schedule of election activities
-Voting Rights and Inclusivity: Introduce either (1) early voting for eligible voters on election duty, such as INEC staff, observers and their drivers, security personnel, and journalists, Or make special arrangement as is done in other electoral jurisdictions to enable them vote on election day, especially for presidential elections, which is a single national constituency; introduce Diaspora voting, at least for presidential elections, to enable citizens to vote, especially those on essential service abroad, such as Military, paramilitary and other security personnel abroad, Embassy staff, and other citizens, who are not dual citizens (unless constitutional provisions expressly permit dual citizens full scale participation); and notwithstanding Sections 54, which improved inclusion of persons with disability (PWDs), there is need to enhance inclusion of women, if necessary by to up to 35% of elective positions in parliament, and in all political parties’ candidate lists
-Relating to Political Parties: Stipulate sanctions for failure to submit register of party members not later than 30 days before the date of party primaries, congresses or conventions, in relation to Section 77 (3), which the political parties have observed in the breach in the 2023 elections without penalty; proscribe cross-carpeting not only for members of the National Assembly but also for elected executives, governors and Chairmen of LGAs. And empower INEC to prepare for elections to fill the vacancy once it has evidence of the act of cross-carpeting. The provision that INEC cannot fill such vacancies unless they have been declared vacant by Speakers (NA and SHAs) and Senate President is unrealistic as in practice they have failed to declare such vacancies, as ‘de-campees’ invariably move to their parties!
Instead of Sections 86 and 87, which place all the responsibility of monitoring party finances with INEC, given the prevailing tendency of parties and candidates to violate campaign finance limits, this responsibility should either be handled by a newly created agency (in the context of unbundling INEC) or given to an Inter-Agency Committee consisting of INEC, Security and anti-corruption agencies; and, Sections 31 and 33 specify conditions regulating withdrawal of candidature and substitution, however, there is need to place stringent conditions for candidate withdrawal and replacement to prevent abuse of this provision.
-Relating to Electoral Dispute Resolution and Judicial Adjudication: Notwithstanding provisions of Section 29(5), which allows aspirants who participated in primaries to pursue pre-election litigation, there is need for the legislation to allow even candidates outside the political parties, as well as tax-paying citizens to file suits against candidates who provide false information to INEC regarding their candidature; although Sections 132(8) & (9) have given timelines within which the Tribunals and courts of appellate jurisdiction should issue verdicts, there is need, particularly in respect of elected executive positions, to ensure that all cases are resolved and judgements made before the date of swearing-in.
Institutional Independence and Effectiveness of INEC
The National Assembly should amend both the constitution and the electoral act to: (1) Review the process of appointments into INEC, specifically to divest the power from appointment of Chairman and National Commissioners from Mr. President, in order to free the commission from the damaging negative perception of “he who pays the piper dictates the tune”. The Uwais Commission recommended that this responsibility of advertising, screening, shortlisting and submission to Council of State for Recommendation to Senate for confirmation hearings, should be entrusted to the National Judicial Council. On second thought, I will recommend a joint committee of the National Assembly given this responsibility, with a criteria, for transparency, non-partisanship and stakeholder engagement for the process. The applicants/nominees for these appointments should be subjected to public scrutiny with regards to knowledge, skills, character, and non-partisanship. Guidelines should be provided for submitting petitions against any nominee during this process. (2) Professionalize lower level administrative appointments, including headship of state offices of INEC. In this regard, the appointment of Resident Electoral Commissioners should be divested from the president and given to the Commission at INEC, with powers to hire and fire. Once the appointment of Chairman and National Commissioners is sanitized, infused with public scrutiny and non-partisanship, then they should be entrusted to hire and fire competent and skilled staff for administrative roles at both the headquarters and state offices of INEC. Thus, there will be clear lines of authority and directives, which would prevent the kind of unwholesome situations we have seen, in which RECs pander more to their partisan political bosses who nominated them into office, and ignore the lawful directives of the Commission.
Other Critical Issues like unbundling of INEC, vote buying, delimitation, proliferation, registration and monitoring of parties
The increasing phenomenon of vote buying and vote selling (vote trading!) needs to be explicitly proscribed, with stiff penalties provided. Section 121, which deals with bribery and conspiracy is insufficient to decisively deal with this phenomenon, which is destructive to the integrity of the elections. INEC needs to be unbundled to improve its efficiency and effectiveness in the preparation and conduct of elections. Accordingly, as recommended by the Justice Uwais Electoral Reform Committee: Current statutory responsibility of INEC with regards to prosecution of electoral offenders should be taken away and given to An Election Offences Commission. So as to accelerate prosecution and punishment of offenders and address the impunity with which such offences are committed; boundary and constituency delimitation, should be taken away and entrusted to the Nigerian Boundaries Commission, or such other agency; registration and monitoring of the activities of political parties should also be taken away from INEC and entrusted to another federal body/agency; there is need to review the manner by which every “Dick and Harry” party/candidate vies for the presidency, and even governorship, making the cost of elections relatively high. A legal threshold needs to be provided, which political parties and candidates have to cross, beyond mere registration as a political party, before they can vie for the presidency or even governorship elections. There are models of this in many electoral jurisdictions, that Nigeria can learn from, and adapt to our context.
Conclusion
(1) As I-IDEA has noted, there are 3 categories of electoral reforms: those which involve constructive changes in the political environment within which an EMB operates; administrative reforms, which focus on changes and improvement related to the day-to-day work of an EMB; and legal/legislative reforms, which involve constructive changes and value additions to the legality of the processes, procedures and regulations guiding the mandate of an EMB, and which may or may not address the larger political environmental issues.; (2) Indeed, there are other critical, structural and systemic, and value-orientation issues that need to be addressed separately as they cannot be fully and satisfactorily addressed within the context of an Electoral Act; (3) While priority should be focused on the Electoral Act amendment, some constitutional amendments and policy decisions need to be pursued to address some of the systemic and structural issues that seriously impinge upon the integrity and quality of elections, no matter how good the legal framework turns out to be. Recommendations for a few of these would suffice: (1) Policing and security sector reforms are necessary and desirable to engender a more conducive environment for not only free and fair, but also peaceful, elections; (2) The National Orientation Agency (NOA) need to be empowered to effectively and impactfully shoulder most of the burden of Voter and civic education, to empower citizens on the desirability of electoral integrity, democratic development and good governance; to enlighten citizens about the value of the vote, so that they can register to vote, know how to vote so as not to waste their votes, come out on election day, regardless of the constraints; and choose wisely for responsible, knowledgeable, selfless, experienced and skillful people who, as representatives in legislatures and executive arms of government, will feel compelled to be responsive to the needs and aspirations of citizens, in appreciation of the mandate given to them by qualified voting citizens to occupy such public, elective, leadership positions of responsibility and respectability; (3) Majority of Nigerian politicians need to reorient themselves for constructive engagement with the elections. As is often said, democracy cannot be built without democrats, and many of these politicians exude undemocratic dispositions reflected in the tendency to see elections as a do-or-die affair, using all means necessary. While change of attitudes cannot be legislated, serious effort need to be focused on how to nurture and entrench enlightened self-interest among the politicians specifically and Nigerian elite in generally, so that hands are joined and placed on deck in the pursuit of electoral integrity and democratic development and consolidation; (4) Therefore, clearly, beyond the periodic review of the Electoral Act, which is here strongly recommended, other attitudinal, policy, systemic and structural reforms are imperative and must be pursued accordingly for consolidated democratic development in Nigeria
