Buhari right to veto Electoral Act amendment bill 2018

“The card reader is not in danger of being discarded. It is a sine qua non for credible elections. We appeal to the National Assembly to reconvene as soon as possible to consider and approve the necessary corrections to the amended Electoral Act”

–Garba Shehu, Senior Special Assistant to President Muhammadu Buhari on Media and Publicity in a press statement  on Sunday, September 9, 2018

Since President Muhammadu Buhari’s decision to withhold assent for the third time on the Electoral Act Amendment Bill 2018 was made public on Monday, September 3, 2018, a lot of motives have been read into his action. Critics believe that the President does not want credible elections in 2019. They claim that the President is afraid of allowing the law to recognise the use of Smart Card Reader for voter accreditation.  Not even the explanation of clerical errors, inelegant drafting and cross-referencing issues in the bill as advanced by the President’s aide on legislative matters (Senate), Senator Ita Enang, are tenable to the members of the opposition.

I was on the Nigerian Television Authority’s “Nigeria Today” on Tuesday, September 4, 2018 to discuss the President’s withholding of assent to the bill. I was on the programme with Enang. I have also had the privilege of discussing the matter on several media channels and even wrote my last week’s column on the matter. However, as of last week, I was discussing the bill from my earlier review of it in June 2018. Over the weekend, someone who read my last week’s article called me to ask if I had read the version that was sent to the President for assent. I said no. The person thereafter sent me a copy of the bill. Lo and behold, after digesting it, I commended President Buhari for not signing the bill.

Could you believe that as against the version sent to the President in June 2018 which had 41 amendments, the latest alterations passed by the National Assembly on July 24 and sent to the President for assent on August 3, 2018 had only 15 amended sections?  Could you believe that the Smart Card Reader which was legalised by amendment to Section 49 of the previous amendment was not even mentioned in the current amendment?  Yet, the critics who never read the bill are wrongfully accusing the President of not wanting the Independent National Electoral Commission to use the card reader.

Other notable provisions in the June amendment which are missing in the latest effort include Section 8 which attempts to make the Independent National Electoral Commission staff non-partisan; Section 31(6) which criminalises presentation of false affidavit by a candidate or political party which is supposed  to lead to disqualification by the court; amendment to Section 52 which lifts ban on electronic voting; alteration to Section 65 (a)  which paved the way for the creation of  the  National Electronic Register of Election Results; amendment to  Section 78 (4) which would have given  INEC 60 days instead of 30 days  to respond to applications of political associations seeking to register as political parties.

Other omitted amendments are alteration of Section 91 subsection 2 – 7 which increased expenditure ceiling for candidates. The section increased the amount the following candidates can spend on their campaigns: President – N5bn from N1bn; Governor N1bn from N200m; Senate – N100m from N40m; House of Reps. N70m from N20m; State House of Assembly – N30m from N10m; Chairman Area Council – N30m from N10m and Councillorship N5m from N1m. Likewise, amendment to Section 91 (9) which increased individual donations from N1m to N10m while pegging the fine at one per cent of the ceiling or 12 months imprisonment (subsection 10) is also missing.

Similarly, attempt to amend Section 99 to increase  the campaign period from 90 days to 150 days has been deleted while penalties for non-compliance with Section 100 subsections 3 and 4 which have to do with media coverage are no longer in the new amendment. Furthermore, amendment of Section140 which imposed stricter penalties of N2m fine or two years imprisonment for omission of party logos and name is no longer there.

In actual fact, only 13 sections of the current Electoral Act 2010 were amended in the bill sent to the President on August 3, 2018. Sections 1 and 15 are title and citation of the bill. The main sections of the law that were amended are sections 18, 30, 34, 36, 38, 44, 51A, 63, 67, 76, 87, 112 and 151. My personal observations, however, are as follows:

One of the glaring clerical errors in the bill is in Section 34 (2). It reads: “Any candidate who observes his name or that of his party missing on the distribution of ballot papers list published …”, This is wrong because Section 34 (1) refers to  publishing statement of the full names and addresses of all candidates standing nominated and NOT  distribution of ballot papers as alluded to in Section 34(2). In order to deal with the situation that arose in Kogi State during the last governorship election in 2015 where Prince Abubakar Audu, then candidate of the All Progressives Congress, died mid-way into the poll, Section 36 of the bill is asking INEC to suspend the election for a maximum of 21 days and asks the affected party to conduct fresh primary within seven days. Much as this is a good recommendation, it will be better to limit the suspension of the poll and replacement of the candidate to only the leading candidate in the election. This will save cost and other logistics. As we know, many candidates in an election are mere “also ran” or pretenders who have little or no electoral value.

In Section 51, the National Assembly rejected the proposal compelling those who were fraudulently elected into offices from being asked to pay back all they have earned while illegally occupying their usurped positions. Recall that the Supreme Court has on several occasions asked those who illegally occupy elective positions to refund all their emoluments. However, in Section 51(2), the lawmakers say apart from having the usurper remain in office while the appeals are going on, such persons “shall not be sanctioned for the benefits he derived while in office”.  This is self-serving!

Another major error in the bill is the obvious cross-referencing error in Section 67 which refers to Section 49 (2) which was not altered by the National Assembly. In the current principal Act, s.49 (2) refers to issuance of ballot papers by the Presiding Officer while it is referenced in the context of electronic transmission of result in the amended bill.  In Section 87 (12) of the bill, INEC is given the power to overrule any political party who alters the result of its primaries. However, there is no consequential amendment of Section 31 (1) which says INEC is duty bound to accept whatever list political parties present to it as their nominated candidates. Furthermore, Section 87 (14) gives only a window of 30 days for political parties to conduct their  primaries including issuance of 21 days’ notice of the primaries to INEC. That leaves political parties nine days to conduct their primaries and for INEC to monitor them. This contradicts the extant Principal Act which in Section 31 (1) gives 60 days.

Given all the aforementioned, I am of the opinion that the President saved this country’s democracy by withholding assent to this badly drafted bill. I join all well-meaning compatriots to appeal to the National Assembly to cut short its annual recess to come and urgently address the issues raised by the President on this electoral amendment bill as well as approve the funding for the all-important 2019 general election.