Today, 25th of February, 2022, President Muhammadu Buhari has signed the Electoral Act, Amendment Bill into law. It suffices to recall that the said Bill was signed into law after it has suffered protracted delay and setbacks both from the Presidency and the National Assembly, particularly on the provision of the Bill which relates to mandatory direct primaries.
While commending the drafters of the Bill for the wealth of industry and Mr. President for leaving behind a great legacy in our electoral process, it is pertinent to consider salient provisions of the new Act viz-a-viz the provisions of the old Electoral Act.
1. Section 29(1) stipulates that parties must conduct primaries and submit their list of candidates at least 180 days before the general elections.
This is a welcome development. Under the Old Act, political parties had a period of 60 days to submit the list of candidates before the general election. The trend before in the country is for political bigwigs in the parties to deliberately postpone their primaries in the bid to get candidates for their personal and aggrandisement.
2. Section 3(3) states that funds for general elections must be released at least one year before the election.
This is welcome development and commendations ought to be given to the drafters of this provision. One can easily recall the logistics problems faced in the past by INEC to get adequate resources for ballot boxes and papers. At the last general election, approval of funds for the election were given just few days before the election.
3. Section 51 says that the total number of accredited voters will become a factor in determining over-voting at election tribunals.
I believe the above provision is a restatement of the judicial pronouncement of the Courts with respect to the proper way of proving over-voting. The Courts have held that the law is well settled that in order to prove over voting the petitioner must do the following:
a. Tender the voters register;
b. Tender the statement of results in appropriate forms which would show the number of registered accredited voters and number of actual votes;
c. Relate each of the documents to the specific area of his case in respect of which the documents are tendered;
d. Show that the figure representing the over-voting if removed would result in victory for the petitioner. See: Haruna Vs Modibbo (2004) 16 NWLR (Pt.900) 487; Kalgo v. Kalgo (1999) 6 NWLR (Pt.606) 639; Audu vs. INEC (No.2) (2010) 13 NWLR (Pt.1212).
4. Section 54(2) makes provisions for people with disabilities and special needs.
This section incorporates the fundamental principles of equality of persons as contained in Section 42 of the 1999 Constitution to the effect that no persons shall be discriminated against by reason of their sex, age, or any disabilities.
5. Section 47 gives legislative backing for smart card readers and any other voter accreditation technology that the Independent National Electoral Commission (INEC) deploy.
INEC is to be commended for the innovation of the Card Reader machine to bolster the transparency and accuracy of the accreditation process and to maintain the democratic norm of “one man one vote” by preventing multi-voting by a voter.
However, the issue of smart card reader has been a knot to tie in the previous election. Even though this provision was earlier incorporated in the INEC election manual, the validity of same has been contested in court up to the Supreme Court.
For instance in the case of NYESOM V PETERSIDE, The Supreme Court held that “the INEC directives, Guidelines and Manual cannot be elevated above the provisions of the Electoral Act so as to eliminate manual accreditation of voters. This will remain so until INEC takes steps to have the necessary amendments made to bring the usage of the Card Reader within the ambit of the substantive Electoral Act.”
The Court further held that the use of smart card has not taken the place of manual accreditation provided for in Section 49 of the Electoral Act. The question to be determine now is whether the codifying of the use of Smart Card takes the place of manual accreditation?
6. Section 34 gives political parties power to conduct a primary election to replace a candidate who died during an election.
Under the provision of Section 33 of the old Electoral Act, a political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to Section 32 of the Act, except in the case of death or withdrawal by the Candidate.
Worthy of note is that the provision did not specifically stipulate the time frame to make the substitution in the case of death of a candidate. One would recall that a similar situation happened in Kogi State which ended up in INEC declaring the party with the second highest number of votes as the winner of the election.
By this new provision, one can easily conclude that votes cast at the poll are not for the individual but for the party has held by the Courts in several decisions.
7. Section 50 gives INEC the legal backing for electronic transmission of election results.
It is interesting to recall that the issue of election server was the highlight of the 2019 presidential election tribunal. It is pertinent to recall that it is the petitioners’ case that the results of the Presidential election were transmitted electronically into the imaginary server from all the polling units in the country. It suffices to start on the premise that such an argument is a sham.
Of more importance is that what Nigerian Electoral law recognises is the Form EC8 Series, especially Form EC8A, signed by agents, collation officers, etc, at the Polling Units. The only way to prove election results in Nigeria today is by the approved forms: the EC8 series. Not by any Server or Servers.
With this new provision, the perdurable question we have to consider is whether the servers would take the place of Form EC8 series. We would also have to battle the issue of data networks and availability of electronic voting for persons in the rural and remote areas.
8. Section 94 allows for early commencement of the campaign season. By this provision, the campaign season will now start 150 days to the election day and end 24 hours before the election.
Under the old Act, campaign season is usually a period of 90 days before the election. This new provision will allow candidates and political parties reach more people in record time before the election and to be able to determine the strength of their political reach before the election.
9. Section 84 stipulates that anyone holding a political office – ministers, commissioners, special advisers and others – must relinquish the position before they can be eligible to participate in the electoral process either as a candidate or as a delegate.
This is a very commendable and quite innovative provision of the Act. This will effectively checkmate political appointees who believe that the electoral college is their exclusive preserve.
