Wednesday, April 5, 2017

Gaps in Nigerian senate’s electoral act amendment

Last Thursday, March 30, 2017, news broke that Nigerian Senate had passed the amended 2010 Electoral Act. The passage of the Bill for an Act to amend the Electoral Act No. 6, 2010 and for other related matters (SB 231 and SB 234) followed the consideration of the report of the Senate Committee on the Independent National Electoral Commission. According to the Daily Trust newspaper of April 1, 2017, there are 17 key highlights of the newly passed legislation. It would be recalled that INEC on March 9 this year announced February 16 and March 2, 2019 as the dates for the next general elections. It is heartwarming that Nigerian Senate had keyed into INEC plan to ensure early conclusion of electoral reform so as to give sufficient time for implementation of the new law. How adequate are the Senate amendments of the legal framework for Nigerian elections? However, before I go on to answer that poser, I need to voice my worry about what may be a snag in what the senior lawmakers had done.
Before what the Senate had done can become law, two critical steps had to be taken. First, the House of Representatives must agree with Senate on its amendments  or if both chambers passes different versions as it is most likely, there will be a conference committee of both chambers set up to harmonise the two positions. It is the clean copy of the harmonised version that will be transmitted to the president for his assent. I foresee a situation where the president may withhold his assent on the ground that some of the major  recommendations that will likely come from the Senator Ken Nnamani Presidential Electoral Committee will not be reflected in the amendment passed by the National Assembly. Recall that in October 2016, the presidency decided to set up 24-member Nnamani Committee which was meant to sit for about six weeks but almost six months after just concluded holding public hearings across the six geo-political zones. By the time it will eventually present its report to the president, there will still be a white paper committee to review its work. That is the tradition which does not lend itself to expediency given the snail pace nature things get done in this country, especially in government circle.
The other concern I have about the Senate amendment is that I would have preferred the constitutional amendment to be concluded first and then a consequential amendment in the electoral act to reflect the constitutional alterations. This is tidier. This is because it is easier to amend the latter than the former. There are some amendments by the senate that may need constitutional amendments to be on sound legal footing. What I would have preferred is a comprehensive, once-and-for-all amendments of the constitution and electoral act with input from the report of the Nnamani committee.
Having flagged that however, there is no gainsaying that many of the changes are desirable in order to enhance transparency and accountability in our electoral process and thereby deepen democracy.  Those that caught my fancy include the lifting of ban on electronic voting, approval of the use of Smart Card Reader, electronic transmission and collation of result, reduction in the amount payable by political aspirants as nomination fees to their political parties, expansion of electors of party delegates to include all party members, strengthening of the oversight role of Party Agents in tracking of election materials, and publication of Voters Register on INEC’s website.
Other well thought out amendments include the disempowerment of political parties from imposing extra-constitutional provisions on aspirants (for example, demand for tax clearance as a qualification requirement), resolution of Kogi electoral conundrum where a party candidate died midway into the electoral process. The Senate now prescribed that “A political party whose candidate dies after commencement of an election and before the declaration of the result of that election now has a 14-day window to conduct a fresh primary in order for INEC to conduct a fresh election within 21 days of the death of the party’s candidate.”
In all honesty, the aforementioned amendments will help to improve our electoral process. However, they are not far reaching enough. There are several things left out of the desirable electoral reform. Some of them include early voting provision especially for the millions of people who are disenfranchised from voting in election due to the nature of their work. These include many who will be on election duty during the voting period; they are the accredited observers, party agents, security agents, election officials, and journalists. This category of people, in well-established democracies, is usually allowed to vote few days to election at designated voting centres. Their votes would however not be counted until the day of the general elections. Apart from United States of America, some African countries like Ghana have these provisions in their electoral law.
Out-of-country voting also known as Diaspora voting has been agitated for over the years. Given the positive impact that foreign remittances from Nigerians abroad has over the country’s economy, this should have been granted.  More so as Justice Adamu Bello of Federal High Court, Abuja had in 2009 given judgment asking INEC to make provision that will enable this category of Nigerians to participate in the electoral process. There is also nothing in the Senate electoral act amendment that seeks to improve the participation of women, youths and persons with disabilities in the electoral process. There has been agitation for affirmative actions for these vulnerable groups of people. Nothing in the amended Act guarantees inclusivity or better enhancement of the less privileged groups in the electoral process.

The nagging issues of establishment of Electoral Offences Commission/ Tribunal , independent candidacy,  political finance reform, desirability of timeframe  for dealing with pre-election disputes, conditions for registered political parties to be on the ballot, need to increase the number of days for organising presidential election run-off from seven to twenty-one days (section 134 of the 1999 Constitution  of Nigeria as amended)   have all been left out of the amendment exercise, yet they are highly desirable if we’re not to return to another protracted electoral reform exercise post-2019 general elections.