The Electoral Act, 2022
The Electoral Act, 2022 (“the Act”) is a product of multi-stakeholder engagement in the electoral process. It is a product of painstaking engagement with the National Assembly by all the critical stakeholders in the electoral process. The President of the Federal Republic of Nigeria assented to the Act on the 25th of February 2022 and on the 26th of February 2022 the Chairman of the Independent National Electoral Commission released the Timetable and Schedule of Activities for the 2023 general election. The Commission fixed Presidential and National Assembly elections to take place on the 25th of February 2023 and Governorship and State Assembly elections to take place on the 11th of March 2023.
I will discuss some of the new provisions of the Act as well as some provisions of the Constitution of the Federal Republic of Nigeria, 1999(as amended) that have direct bearing on the critical stages of the electoral process. I will intersperse the presentation by drawing from the Regulations and Guidelines for the Conduct of Elections, 2022. This presentation is meant to enhance our understanding of some of the issues that are at play and those that may likely dominate electoral and legal discourse as the country advances toward the 2023 general election and beyond.
Before the conduct of elections, there are activities that must be undertaken by the Electoral Management Body, political parties, the Government and by the critical agencies and institutions of government. These include the release of the Timetable and Schedule of Activities for the Conduct of Elections by the Independent National Electoral Commission. The Continuous Registration of Voters, the conduct of Congresses and Conventions by political parties, the conduct of primaries and the submission of the names of validly nominated candidates; the publication of the names of validly nominated candidates and the withdrawal and substitution of candidates; the conduct of campaigns and rallies by political parties and their candidates; the submission of the names of polling agents by political parties and other sundry activities. These are some of the activities classified as pre-election matters.
Section 285 of the Constitution of the Federal Republic of Nigeria, 1999(as amended) provides a time limitation for the filing and determination of pre-election matters. It also defines pre-election matters to mean any suit by-
- An aspirant who complains that any of the provisions of the Electoral Act or any Act of the National Assembly regulating the conduct of primaries of political parties and the provisions of the guidelines of a political party in respect of the selection or nomination of candidates for an election.
- An aspirant challenging the actions,decisions, or activities of the Independent National Electoral Commission in respect of his participation in an election or who complains that the provisions of the Electoral Act or any Act of the National Assembly regulating elections in Nigeria has not been complied with by the Independent National Electoral Commission in respect of the selection or nomination of candidates and participation in elections; and
- A political party challenging the actions, decisions, or activities of the Independent National Electoral Commission disqualifying its candidate from participating in an election or a complaint that the provisions of the Electoral Act or any other applicable law has not been complied with by the Independent National Electoral Commission in respect of the nomination of candidates of political parties for an election, timetable for an election, registration of voters and other activities of the Commission in respect of preparation for an election.
On the other hand, sections 29 and 84 of the Electoral Act 2022 gives exclusive jurisdiction to the Federal High Court to hear and determine matters arising from pre-election disputes as opposed to what obtained with the Electoral Act, 2020(as amended) wherein the High Court of the various State and that of the Federal Capital Territory shared jurisdiction with the Federal High Court relating to pre-election matters.
A pre-election matter must be filed within a period of 14 days from the day of the occurrence of the event, decisions or action complained of. The Court of first instance in this case the Federal High Court has a period of 180 days from the date of filing of the matter to deliver its judgement in writing. By virtue of section 285(12) of the Constitution an appeal from a decision of a court in a pre-election matter shall be heard and disposed of within sixty days.
The framers of the Constitution on their own imputed times lines within which pre-election matters must be filed, heard and judgement delivered. The implication is that the times named in the Constitution are cast in stone and therefore immovable. Any deviation renders the matter incompetent for being statute barred and strips the Court of the jurisdiction to hear and or continue to hear or determine the matter. Hence,
A cause of action is statute-barred if the legal proceedings cannot be commenced in court because the period laid down by the Limitation Law or Act had elapsed. The effect of an action being statute barred is simply that it renders the action barren and sterile and therefore incompetent, it deprives the court of jurisdiction to hear and determine the suit. So, where an action is statute barred, hearing and determining it on the merit becomes unnecessary.
The Question of Locus Standi in pre-election matters
Locus standi refers to the right of a person to institute a matter for adjudication in court. It is a threshold issue and unless a person shows his right to present the matter, the courts have no jurisdiction to hear or determine the matter, no matter its merit.
The Electoral Act 2022 has narrowed the classes of persons with the requisite standing to sue in pre-election matters. Section 84 of the Act sets out the conditions for the conduct of party primaries. However, section 84(14) of the Act provides that notwithstanding the provisions of the Act or rules of a political party, ANY ASPIRANT who complains that any of the provisions of the Act and the guidelines of a political party have not been complied with in the selection or nomination of a candidate of a political party for election, may apply to the Federal High Court for redress. The emphasis here is on the aspirant and selection or nomination of candidates.
On the other hand, section 29(5) of the Electoral Act gives ANY ASPIRANT WHO PARTICIPATED IN THE PRIMARIES OF HIS POLITICAL PARTY the Locus to challenge any document or information submitted by his party’s candidate only as it relates to the candidate’s constitutional eligibility to contest the election.
Section 29 of the Act obligates political parties to nominate and submit the names of candidates that emerged from valid party primaries. The determination of Locus Standi in sections 29 and 84 of the Act must be read and juxtaposed with section 285(14) of the Constitution.
Election Planning and Administration
Section 9(6) of the Electoral Act 2022 read together with section 19(1) of the same Act provides that the registration of voters, updating and revision of the register of voters shall stop not later than 90 days before any election covered by the Act. The same Act also provides that the Display of the register of Voters shall stop not later than 90 days to a general election. The use of the word, NOT LATER THAN presupposes that the designers of the Act expect the Commission to conclude all activities relating to the registration of voters, the display of the voters register and the updating of the register before the 90-day period mentioned in the Act.
Exclusion of the Logo of Political Parties
Section 42 of the Electoral Act has cured the mischief and challenges associated with candidates’ exclusion from the ballot. Section 42 of the Act mandates the Commission to invite in writing, a political party that nominated a candidate in the election to inspect its identity appearing on samples of relevant electoral materials proposed for the election and the political party may state in writing within two days of being so invited by the Commission that it approves or disapproves of its identity as it appears on the sample. Failure to point out any omissions or errors in the name, logo or acronym precludes the party from subsequently challenging the outcome of the election on the ground of exclusion. This makes for certainty in election preparation and administration and to prevent last minute intervention by the courts compelling the Commission to include the logo of a party on the ballot or declaring an election as invalid on grounds of exclusion. Where parties have inspected their logo and the Commission still excludes them and makes mistakes relating to their logo after inspection, political parties can however challenge elections conducted within that matrix.
On the Issue of Campaigns
Political parties will start their campaigns on the 28th of September 2022 for Presidential and National Assembly elections and on the 4th of October 2022 for State elections. The Constitution and Electoral Act 2022 are clear and unequivocal on what political parties and candidates must do and must not do during periods designated for campaigns and rallies.
A political campaign or slogan shall not be tainted with abusive language directly or indirectly likely to injure religious, ethnic, tribal, or sectional feelings.Abusive, intemperate, slanderous, or base language or insinuations or innuendoes designed or likely to provoke violent reaction or emotions shall not be employed or used in political campaigns.
Places designated for religious worship, police stations, and public offices shall not be used for political campaigns, rallies, and processions; orto promote, propagate or attack political parties, candidates, or their programmes oror ideologies.
Masquerades shall not be employed or used by any political party, aspirant or candidate during political campaigns or for any other political purpose.
A political party, aspirant or candidate of a political party shall not retain, organize, train, or equip any person or group of persons for the purpose of enabling them to be employed for the use or display of physical force or coercion in promoting any political objective or interest, or in such manner as to arouse reasonable apprehension that they are organized, trained, or equipped for that purpose.
A political party, aspirant or candidate shall not keep or use armed private security organization, vanguard, or any other group or individual by whatever name called for the purpose of providing security, assisting or aiding the political party or candidate in whatever manner during campaigns, rallies, processions or elections.
A political party, aspirant or candidate that contravenes any of the provisions of section (92) of the Act commits an offence and is liable on conviction in the case of an aspirant or candidate, to a maximum fine of N 1,000,000 or imprisonment for a term of 12 months; andin the case of a political party, to a fine of N2,000,000 in the first instance, and N 1,000,000 for any subsequent offence.A person or group of persons who aids or abets a political party, an aspirant or a candidate in contravening the provisions of section 92(5) relating to the employment of violence, commits an offence and is liable on conviction to a fine of N500,000 or imprisonment for a term of three years or both.
Section 93 of the Act also prohibits the use of force violence during campaigns and prescribes still penalties for candidates, aspirants, or persons or group of persons that use force or compel the use of force during political campaigns.
The Regulation of Political Parties
Section 29 of the Act gives political parties a total of 180 days to submit the list and personal particulars of their validly nominated candidates. Section 77 of the Act makes it mandatory for every registered political party to maintain a register of its members in both hard and soft copy and make same available to the Commission not later than 30 days before the date fixed for the party primaries, congresses, or convention. Section 82 of the Act makes it mandatory for every registered political party to give the Commission at least 21 days’ notice of any convention, congress, conference or meeting convened for the purpose of “merger” and electing members of its executive committees, other governing bodies or nominating candidates for any of the elective offices specified under the Act and failure of a political party to notify the Commission of any convention, congress, conference or meeting convened aforesaid shall render the convention, congress, conference or meeting invalid. Section 84 of the Act gives political parties the option of conducting direct, indirect or consensus primaries and where a political party fails to comply with the provisions of the Act in the conduct of its primaries, its candidate for election shall not be included in the election for the particular position in issue.Sections 29, 31 and 33 of the Electoral Act govern the withdrawal and substitution of candidates by political parties. Political parties channel their withdrawal to the political party that nominated them and not to the Independent National Electoral Commission. It is the political party that conveys such withdrawal to the Commission within the period specified in the Timetable and Schedule of Activities and in accordance with section 31 of the Act. At the expiration of the period for withdrawals and substitution, no Political party can channel the withdrawal of a candidate and no new candidate can be admitted except in the case of death.
Technology in the Electoral Process
The Electoral Act2022 has validated the technological innovations deployed by the Commission. It cemented the place of the Smart Card Readers/BimodalVoter Accreditation System (BVAS) in the voter accreditation process, which was hitherto an administrative decision provided in the Commission’s Regulations and Guidelines for the Conduct of Elections.
The Supreme Court applauded the introduction of the Smart Card Readers in the Electoral Process. In the case ofWIKE EZENWO NYESOM v. HON. (DR.) DAKUKU ADOL PETERSIDE & ORS(2016) LPELR-40036(SC)my Lord the Hon. Justice Muhammed posited that
it must be appreciated from the outset that Smart Card Reader Machine or simply Card Reader (SCRM for short), is an innovation in our Electoral Process. It was not known, or rather, it was never put in practice before in our political development. From my general reading and my comprehension of the literature surrounding the Smart Card Reader Machine, it appears to me and, put in a concise form, that the Smart Card Reader Machine is a technological device set up to authenticate and verify, on election day a permanent voter’s card (PVC) issued by INEC. Smart Card Reader Machine is designed to read information contained in the embedded chip of the Permanent Voter’s Card (PVC) issued by INEC to verify the authenticity of the PVC and also carry out a verification of the intending voter by matching the biometrics contained from the voter on the spot with the ones stored on the PVC.INEC’s motive, which became public in introducing the technologically-based device, barring any technical mishap, breakdown or malfunction, was to ensure a credible, transparent, free and fair election for the country.”
This was affirmed in the case of OKEZIE VICTOR IKPEAZU v. ALEX OTTI & ORS(2016) LPELR-40055(SC)where the Supreme Court held Per KEKERE-EKUN, JSC (P. 75, paras. C-E)held that
This Court also held that the introduction of the card reader machine has not eliminated manual accreditation of voters. Laudable as the innovation of the Card Reader may be, it is only a handmaiden in the accreditation process. Thus, any attempt to prove over-voting or non-accreditation without reference to the voters registers of the affected Local Government Areas, as in this case, was bound to fail.”
Section 47(2) of the Act has now domiciled the Smart Card Reader/Bimodal Voter Accreditation Device or any other technological device within the context and framework of the law. It can now be used to prove over voting in the electoral process.Section 47(2) provides that to vote, the Presiding Officer shall use a smart card reader or any other technological device that may be prescribed by the Commission, for the accreditation of voters, to verify, confirm or authenticate the particulars of the intending voter in the manner prescribe by the Commission.
Section 50 of the Act provides thatsubject to section 63(here read section 60) of the Act, voting at an election and the transmission of result under the Act shall be in accordance with the procedure determined by the Commission. Here, the Commission will transmit polling unit level results using the INEC Result Viewing Portal.
Section 60 of the Act mandates the Presiding Officer in an election to count the votes, enter them in the prescribed forms (Form EC8A) and transfer the result including total number of accredited voters and the results of the ballot in a manner prescribed by the Commission. Section 64(6) of the Act prescribes procedures for the resolution of disputes during collation. Where during collation of results, there is a dispute regarding a collated result or the result of an election from any polling unit, the collation officer or returning officer shall use the following to determine the correctness of the disputed result-
- The original of the disputed collated result for each polling unit where the election is disputed;
- The smart card reader or other technology device used for accreditation of voters in each polling unit where the election is disputed for the purpose of obtaining accreditation data directly from the smart card reader or technology device;
- Data of accreditation recorded and transmitted directly from each polling unit where the election is disputed as prescribed under section 47(2) of the Act; and
- The votes and result of the election recorded and transmitted directly from each polling unit where the election is disputed, as prescribed under section 60(4) of the Act.
The introduction of technology in the electoral process in Nigeria has been impactful. From the introduction of the Smart Card Readers (SCRs) for authentication of voters to the present Bimodal Voter Accreditation System (BVAS), the Commission has continued to sanctify the voting process by mitigating incidences of electoral malpractices and strengthening voter confidence in the electoral process.
This has solidified the Commission’s position and validated its technological innovations and deployment especially in the area of electronic collation of results.
The Commission believes that technology appropriately channeled can reduce pernicious human interference in the electoral process. The Commission rolls out its technological innovations based on its satisfaction of its robustness and fit for purpose. On the basis of this, the Commission has deployed the following for the purpose of enhancing the credibility of the electoral process:
- INEC Voter Enrolment Device (IVED) during voter registration (Introduced to improve data capturing at the point of enrolling voters-facials and fingerprints, migrating from the initial mono-biometrics of fingerprints to bimodal biometrics of fingerprints and facials)
- The Commission consequently introduced the Voter Registration Online Portal. The portal gives voters access to pre-enroll for voter registration, update their details, transfer their registration as well as submit details for permanent Voters Card replacement and location of their Permanent Voters Cards.
- Bimodal Voter Accreditation System (BVAS)-during voter accreditation. The Commission has added facial technology to the existing fingerprint technology. With bimodal authentication, no person can come to vote more than once, as the face of the person would have been captured during authentication.
- INEC Result Viewing portal (iReV)-during result upload. To improve the openness and credibility of elections, form EC8A filled and signed by each Presiding Officer is scanned or photographed and uploaded to a public domain which can be viewed by the general public.
- INEC Candidate Nomination Portal (political parties use this portal to upload the list and personal particulars of their validly nominated candidates.
- Media Accreditation Portal. Media organizations use the portal to apply for accreditation to cover a scheduled election.
- The Observer Group Portal. Registered domestic election observers, international observers and embassies apply for accreditation to deploy observes to observe scheduled elections.
- The INEC Political Party Polling Agents Portal. This portal enables political parties to carry out upload and management of polling and collation agents within an integrated system.
- The INEC Staff recruitment portal –INECPRES for the recruitment of all categories of ad hoc staff to be trained and utilized for the elections.
- The Commission is developing regulations on result management based on the law and its technological capacity and knowhow.
- The Commission has for several electoral cycles now developed interactive two way communication platforms for interaction with voters and other stakeholders. This is vide the INEC Citizens Contact Centre (ICCC) – leveraging on its website, myINEC App, dedicated phonelines and its social media handles, all of which leverage on technology. These have become useful tools in the management of the elections especially with logistics and staff deployment and in identifying security and other challenges on election day.
Power to Review Declarations and Returns
Section 65 of the Act gives the Commission the power within seven days to review a declaration and return made 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.
The Commission will exercise this power responsibly based on the provisions of the Constitution, the Electoral Act and its Regulations and Guidelines. It is inconceivable that Collation/Returning Officers of the Commission should act independent of the appointing authority. Fortunately, section 27(2) of the Act has made it mandatory that officers appointed by the Commission for the purpose of an election shall perform such functions and discharge such duties as may be specified by the Commission and shall not be subject to the direction or control of any person or authority than the Commission in the performance of their functions and discharge of their duties. The Commission will design clear guidelines on exercising these powers and will rely on reports from its officers before activating its powers under the law.
Transparency and Managing Unforeseen Challenges
Section 34 of the Act gives the Commission the power to suspend an election for a period of not more than 21 days; in the case of election into a Legislative House and start afresh if the candidate dies and the party sponsoring the deceased candidate has 14 days to conduct fresh primaries,provided that in the case of Presidential or Gubernatorial or Federal Capital Territory Area Council Chairmanship elections, the running mate shall continue with the election and nominate a new running mate.
Section 41(3)&(4) of the Act provides that Polling agents shall be entitled to be present at the distribution of the election materials, electronic voting machine and voting devices from the office to the polling booth. Polling agents who attend a polling unit, may be entitled, before the commencement of the election, to have originals of electoral materials to be used by the Commission for the election inspected, and this process may be recorded as evidence in writing, or video or by other means by any polling Agent, accredited observer or official of the Commission. Section 73 of the Act renders invalid any election conducted at a polling unit without the prior recording in the forms prescribed by the Commission of the quantity, serial numbers and other particulars of result sheets, ballot papers and other sensitive electoral materials made available by the Commission for the conduct of the election.
Security issues and Concerns
Election is a complex activity and in the Nigerian context, there are serious security issues that will impact on the conduct of the 2023 election. Presently, the Nigerian military is engaged in internal security operations in all the States of the Federation and the Federal Capital Territory, Abuja. The country is facing challenges of terrorism, banditry, kidnapping and hostage taking, secessionist agitations, farmers/herders clashes and a myriad of other challenges. There are internally displaced persons in several states of the Federation and some of them are in Camps while others are in the houses of friends and relatives. The Commission will recreate the Polling Units and Registration Centres of IDPs encamped in their State and Federal Constituency as well as Senatorial District and State Constituencies and allow them to exercise their democratic mandate of free choice. Hopefully, the security agencies will sufficiently degrade these security challenges to enable deployment of personnel and materials to the affected areas. We must build the confidence of the ad-hoc staff and their parents and guardians that nothing untoward will befall them when they are deployed. The Commission will continue to consult and engage with political parties and security agencies to ensure that nobody deploys violence to the polling units and that violators will be apprehended and prosecuted.
The Commission is determined to conduct free, fair and inclusive elections. There are security challenges to be surmounted and the Commission will not allow those challenges to dissuade it from proceeding with the election. The conduct of election in Nigeria demands courage, it demands planning and it demands focus and engagement. The Commission encountered huge security challenges in Anambra State but proceeded and had a good outing. We are confident of engaging all the critical stakeholders in the electoral process before the election and hope that the security challenges will be sufficiently degraded before the election.
The Determination of Winners in an Election
The determination of the winners of any election conducted by the Independent National Electoral Commission is governed by the Constitution, the Electoral Act and the Regulations and Guidelines of the Commission. The determination of winners for Presidential and Governorship Elections are governed by a different constitutional and legal threshold from seats in the National and State Assemblies which are simply ‘first pass the post’. By section 134of the Constitution where there are more than two presidential candidates, for a presidential candidate to be declared duly elected, he must securethe highest number of votes cast at the election; and not less than a quarter of the votes cast at the election in each of at least two thirds of all the States in the Federation and the Federal Capital Territory, Abuja. In a governorship contest, the candidate must secure the highest number of votes cast and quarters of the votes cast in two thirds of all the Local Government Areas of the State. In the event of a candidate not securing this threshold, the Commission must conduct a second election. Not all the 18 registered political parties sponsoring candidates will participate in this second election. Only two political parties and two candidates will be on the ballot for the second or runoff election. The first will be the presidential candidate that secured the highest number of lawful votes in the Federation. The second is the one amongst the remaining candidates who has a majority of votes in the highest number of States, so however that where there is more than one candidate with a majority of the votes in the highest number of States, the candidate amongst them with the highest total votes cast at the election shall be the second candidate for election.
JUDICIAL INTERVENTIONS IN THE ELECTORAL PROCESS
The Constitution recognizes that disputes will arise from the process, so entrenched a dispute resolution process to facilitate the prompt and effective resolution of such. The Judiciary is the arm of the state charged with this responsibility. Regrettably, recent developments relating to orders emanating from Courts and Tribunals have thrown up some issues and challenges with fundamental effects on the smooth administration of the process. Some of these include multiplicity of actions even over the same subject matter and parties, forum shopping, abuse of judicial process, conflicting orders from courts of coordinate jurisdiction and refusal to follow judicial precedents even from superior courts (the principle of stare decisis), thus leading to uncertainty. The recent amendments both in the Constitution and the 2022 Electoral Act which limit the time for presentation of cases, those who can institute these cases and the courts with requisite jurisdiction to entertain such cases seem not to have limited the numbers and consequential effect of such. As at today, the Commission has been joined and served with about 500 court processes (and still counting) dealing with pre-election matters. Humungous capital, human and financial resources, not to talk of time, is dedicated to these cases. Such is the profound effect of judicial interventions in our process that some people sometimes refer to as ‘democracy by court order’. While the Commission will continue to strive to ensure that the votes of the citizens determine outcomes of elections, it will continue to engage the judiciary to ensure that the rule of law prevails, and the law is not abused to the detriment of our democracy.
In concluding this intervention, it is important to remind ourselves that delivering a free, fair and credible election is a multi-stakeholder undertaking that must have the cooperation of the civil society organizations, the media, the security agencies and the political parties. The new Act has made far-reaching provisions, setting out the processes and procedures for conducting free, fair and credible election. The Commission will through its policies and guidelines continue to improve on these procedures and processes set out by the Act.
But most importantly, the politicians must accept democracy as the best way to produce good and competent candidates. Internal democracy in political parties must not only be entrenched in their constitutions and guidelines, but must be demonstrated practically in their primaries, conventions and congresses and all other party activities. As failure to observe democratic virtues in party politics often impugn on the Commission’s efforts to deliver a universally accepted election.