Wednesday, July 29, 2009

A Journey into Yar'Adua's Electoral Reform Bills

In a manner reminiscent of the aborted tenure elongation debate which sounded the death-knell of the 2006 Constitution amendment effort, Nigeria’s Senate on May 26 threw out President Yar’Adua’s bill seeking to set up Political Party Registration and Regulatory Commission. The Senate said the PPRRC Bill, as packaged, violated the provisions of the 1999 Constitution and that it would not pass any bill that entailed the amendment of the 1999 Constitution until the Constitution was amended. When shall this be? Do the President and his legal advisers not know of this truth? It will be recalled that President Yar’Adua on April 30, 2009 sent 6 electoral reform bills to the National Assembly. They are a Bill for an Act to Amend the Independent National Electoral Commission (INEC) Act Cap 15 LFN 2004 and other Matters Connected Thereto; a Bill for an Act to Alter Provisions of the Constitution of the Federal Republic of Nigeria 1999 and for other Matters Connected Thereto (Second Amendment); a Bill for an Act to Establish the Electoral Offences Commission and for other Matters Connected Therewith; and, a Bill for an Act to Establish the Centre for Democratic Studies and other Related Matters. Others are a Bill for an Act to Further Amend the Police Act 1967 CAP P19 2004 LFN and for other Matters Connected Therewith; a Bill for an Act to Establish the Political Parties Registration and Regulatory Commission and for other Matters Connected Thereto; while the seventh bill titled a Bill for an Act to Alter Provisions of the Constitution of the Federal Republic of Nigeria 1999 and for other Matters Connected Thereto (Third amendment) was sent thereafter. Curiously, there was no bill for the amendment of the Electoral Act 2006 which sets the guideline for our election. When shall this be? In a letter to the Senate President, David Mark, dated April 29, 2009, Yar’Adua said the bills were “critical to the actualization of electoral reform and consolidation of our democratic process.” The President at the press conference held on May 12 hoped that the seven bills will be passed within 6 weeks.
It was interesting watching the Senators take turn to castigate President Yar’Adua’s precious bill. While Senators Joy Emordi and Eyinaya Abaribe said it is fit for thrash can, Senator Osita Izunaso said the bill has been in coma for three legislative days and should be allowed to die after a brief illness rather than a protracted one. And die it did. The question is, what could have made majority of the Senators to ignore the plea of the President to pass the bill? It is intriguing that the Senators have to officially demand for the full ERC report before it was sent to them on Friday, May 22. Thus it is obvious that NASS leadership and members did not get to see the Uwais report nor the white paper issued on it earlier. This may have been considered an affront by the Senators. Having been privileged to read all the seven bills, I wish to state that the bills by their contents are antithetical and inimical to democratic ethos and would be tantamount to leaving leprosy to cure ringworm, if passed into law. Starting with the PPRRC Bill, it is my considered view that apart from violating the spirit and letters of the 1999 Constitution, it must have been killed by the Senators for attempting to arrogate more powers to the President. For instance, section 3 (2) of the bill states that PPRRC board members are to be appointed solely by the president. Section 5 of the Bill also empowers the President to unilaterally remove any Board member at his whims and caprices. Section 14 gives power to the President to give obligatory general directions to the PPRRC. Moreover, there is no guarantee funding for the new Commission in line with what is being proposed for the new INEC. What then is the whole essence of having a new Commission that will be tied to the apron string of the executive? In contrast, the Electoral Reform Committee who made the initial recommendation had on page 29 of its report proposed a democratic nomination process which will see to it that the National Judicial Council will advertise the Board positions, screen the applications and recommend to the President for appointment subject to Senate confirmation.
That many of the other remaining bills particularly the bills on INEC Act and Electoral Offences Commission and Centre for Democratic Studies may go the way of the PPRRC Bill is likely given that the President wants to have a stranglehold on them. For instance, in section 3 of the Electoral Offences Commission bill, 8 of the 10 member board (the other two being ex-officio members from Federal Ministry of Justice and Nigeria Police Force) are to be appointed by the president; Section 4 of the bill proposed that the president can unilaterally remove members of the board; while in section 5, the EOC may establish state offices including one for FCT. This is tantamount to creating another huge bureaucracy. There is no funding from consolidated revenue fund for the proposed Commission while power of the president to give general directions which must be complied with can be found in section 25 of the EOC bill. The bill in its explanatory memorandum is concerned with electoral offences committed only during general elections. What about electoral offences committed during party primaries, by-elections, re-run and supplementary elections? According to section 3 of the Centre for Democratic Studies bill, the 17 member board are to be appointed by the president save for the ex-officio members (NIIA, NOA, NIPSS, Ministry of Education, Head of Department of Political Science and History). President can summarily and unilaterally remove any member of the board according to section 5 of the bill while the President is empowered by the bill in section 17 to give general directions to the CDS Board. The Board members don’t even have to be men and women of integrity as the bill is silent on this criterion. In the proposed amendment to INEC Act section 2 of the bill seeks to replace the present 13 member INEC Board with a 20 member board. Considering the fact that unbundling of INEC is proposed, the number of the board members ought to be reduced not increased. India has only three member Commission despite having a 714 million registered voters and over a billion population. Nigeria has an estimated 65 million registered voters and a population of 140 million. Graciously, the INEC Bill was rejected by the Senate on July 16, 2009.
Most of the two constitution amendment bills dwelt on cross carpeting and independent candidacy, guaranteed independent funding for INEC and remove PPRRC functions from INEC. These are far cry from ERC key recommendations such as those that have to do with democratic appointment procedures for INEC and proposed new Commissions, those aimed at timely conclusion of election disputes before inauguration; staggered election; shifting of burden of proof on election dispute on INEC and the ERC proposal for the amendment of section 174(1) stripping the Attorneys General of the power to enter a nolle in relation to criminal proceedings instituted or undertaken in relation to any electoral offence created by or under an Act of the National Assembly. The bills on the amendment of the Police Act and the Constitution also fell short of ERC recommendation which seek to democratize the appointment procedure of the Inspector General of Police. ERC had recommended that the IGP should be appointed by the president on the recommendation of the Police Service Commission to the National Police Council, which in turn shall forward its nomination to the Senate for confirmation while his/her removal from office should also be by two thirds vote of the Senate after an investigation establishing his /her misconduct. The only couple of gender issues mainstreamed into the bills are those that say INEC Deputy Chairperson must not be of same gender as the chairperson and the recommendation of 20% women in political party executive. This is mere tokenism.
The above is the general overview of the bills that president Yar’Adua hopes will consolidate democracy. It is a farce. It is tantamount to calling an albino a white-man. The president has asked those who are unhappy with what he has sent to the National Assembly to send private member bills to NASS. This, to my own mind, is going to be a wasteful venture as the present National Assembly has demonstrated a lot of disdain for private member bill. A parliament that has passed only a few bills in the last 6 months and who still have scores of executive bills to treat is not expected to give priority attention to private member bill. Moreover, time is not a friend in this bid. Section 63 of the 1999 Constitution says the NASS members must observe minimum of 181 days sitting in a year. How many days do we have left to the end of the legislative year? Are we likely to see these parliamentarians working extra days or months beyond the minimum set by the Constitution? I doubt. As I write this, the Joint Committee on Constitution Review is yet to resolve the impasse within its rank which took place since January 16, 2009 in Minna. When then shall we expect any serious work to be done on the constitution review which is pivotal to any serious electoral reform exercise? As far as I am concern we will be lucky to have amendment to the Electoral Act 2006 the way things are going. Nigeria we hail thee!