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Electoral bill: Long walk to president’s assent

  • Excitement over new Electoral Act  as reactions trail Clause 84(12)

 

FELIX NWANERI reports on the journey that culminated in last Friday’s signing of the Electoral Act Amendment Bill 2021, into law by President Muhammadu Buhari after he initially withheld his assent over the provision that mandates political parties to hold only direct primaries for aspirants seeking elective positions

 

The haze over whether President Muhammadu Buhari would withhold his assent to the Electoral Act Amendment Bill 2021, eased-off last Friday, when the President signed the bill into law at the Council Chamber of the Presidential Villa, Abuja.

The signing was a few days after the Special Adviser on Media to the President, Femi Adviser, assured that his principal will assent to the bill. Among those, who witnessed the historic moment was the Vice President, Yemi Osinbajo; President of the Senate, Ahmed Lawan, and Speaker of the House of Representatives, Femi Gbajabiamila.

President Buhari, who revealed that he received inputs from relevant ministries, departments and agencies of government after careful and thorough reviews of the bill and its implications to democratic processes in Nigeria, however sought an amendment to it by asking the National Assembly to delete Clause 84(12) before assenting to the bill.

 

The clause reads that “no political appointee at any level shall be a voting delegate or be voted for at the convention or congress of any political party for the purpose of the nomination of candidates for any election.”

 

But, according to Buhari, it constitutes a disenfranchisement of serving political office holders from voting or being voted for at conventions or congresses in cases where they hold earlier than 30 days to the national election. He added that the section has introduced qualification and disqualification criteria which are in conflict with extant constitutional provisions by way of importing blanket restriction and disqualification to serving political office holders of which they are constitutionally accorded protection.

 

His words: “The practical application of section 84(12) of the Electoral Bill, 2022 will, if assented to, by operation of law, subject serving political office holders to inhibitions and restrictions referred to under section 40 and 42 of the 1999 Constitution.

 

“It is imperative to note that the only constitutional expectation placed on serving political office holders that qualify, by extension as public officers within the context of the constitution is resignation, withdrawal or retirement at least 30 days before the date of the election.

 

“Hence, it will be stretching things beyond the constitutional limit to import extraneous restriction into the constitution on account of practical application of section 84(12) of the bill where political parties’ conventions and congresses were to hold earlier than 30 days to the election.”

 

Besides his reservation over Clause 84(12), the President described the bill as one that will positively revolutionise in Nigeria through introduction of new technological innovations. His words: “It is gratifying to note that the current bill comes with a great deal of improvement from the previous Electoral Bill 2021. There are salient and praiseworthy provisions that could positively revolutionize elections in Nigeria through the introduction of new technological innovations. These innovations would guarantee the constitutional rights of citizens to vote and to do so effectively.

 

“The bill would also improve and engender clarity, effectiveness and transparency of the election process, as well as reduce to the barest minimum incidences of acrimony arising from dissatisfied candidates and political parties.

“These commendable efforts are in line with our policy to bequeath posterity and landmark legal framework that paves the way for credible and sound electoral process that we would all be proud of. “Distinguished senators and honourable members of the National Assembly, from the review it is my perspective that the substance of the bill is both reformative and progressive. I am making this bold declaration because I foresee the great potentials of the bill. Worthy of note include the democratic efficacy of the bill with particular reference to sections 3, 9(2), 34, 41, 47, 84(9), (10) and (11) among others.”

 

Journey to presidential assent

There is no doubt that President Buhari has persistently reiterated the resolve of his administration to put in place, necessary mechanisms to ensure that Nigeria witnessed another peaceful transfer of power by May 29, 2023, when he is billed to serve out his second term.

 

However, many Nigerians expressed doubts over his assurance, when he declined assent to the Electoral Act Amendment Bill 2021, passed by the National Assembly on November 8 and forwarded to his office on November 19.

 

The passage followed the consideration of the report of the Conference Committee of the Senate and House of Representatives on the bill. In line with customary legislative procedures, the two chambers had in September, set up Conference Committees to reconcile disparity in the versions of the bill as passed by the Senate and the House of Representatives.

 

The Senate President, Ahmad Lawan, on October 13, constituted a seven-man conference committee to meet with their counterparts in the House to harmonize the differences in the Senate and House versions of the bill.

The Senate Leader, Senator Yahaya Abdullahi (APC, Kebbi North), who chaired the Conference Committee in the Senate, presented the report on the harmonized version of the Electoral Act (Amendment) Bill, 2021. The committee at its retreat considered and adopted 21 clauses in the bill, including the contentious clause 52; which makes provision for electronic transmission of election results.

 

On the nomination of candidates by the political parties as contained in Clause 87, both houses endorsed the direct primary option for the various political parties. The clause reads: “A political party seeking to nominate candidates for elections under this bill shall hold direct primaries for aspirants to all elective positions, which shall be monitored by the commission (INEC).”

 

Direct primary election is a nomination process in which all members of a political party participate in the choice of its candidates to stand in the main election.

The Electoral Act mandates that all political parties hold primary elections to nominate their candidates for election and this process, before now, were in different forms – direct and indirect primaries as well as what some parties termed consensus arrangement.

 

In an indirect primary election, party members elect delegates, who in turn elect the party’s candidates on their behalf, whereas in a direct primary election, registered members of the party just vote for who they want to be the flag-bearer of their party.

 

The consensus arrangement entails party leaders agreeing on who becomes the flag bearer without much input from members. While most of the parties have always adopted the indirect primary, the method is criticized for being easier to manipulate by party leaders.

It is common knowledge that the delegates usually disregard the wishes of those they are supposed to represent. On the other hand, the criticism against the direct primary is that it is expensive even as it is also vulnerable to manipulation. For example, an aspirant can get people to purchase party membership cards just to partake in the primaries.

 

Worse, members of other parties can intentionally join a particular party in order to vote for a weaker aspirant at the primaries and maximise the chances of their own party winning the general election. Perhaps, it was the flaws inherent with direct primaries that informed the objection expressed by both the ruling All Progressives Congress (APC) and the main opposition Peoples Democratic Party (PDP) over the decision by the National Assembly to mandate parties to adopt the mode in selecting candidates for elections.

While governors of the APC extraction declared that adopting direct primaries by political parties will overstretch the Independent National Electoral Commission (INEC), the PDP argued that nomination of candidates for elections is an internal issue that should be left for the parties to decide. Kebbi State governor and chairman of the Progressives Governors Forum (PGF), Abubakar Bagudu, who spoke on behalf

Excitement over new Electoral Act

 

of his colleagues then, maintained that political parties should be allowed to go options best suited for them in nominating their respective candidates for elections. His words: “We discussed the pros and cons. There has been concern that political parties are voluntary organisations. We express the concern that political parties be allowed to choose from the options that they so desire.

 

There is an Executive Order, signed by Mr. President against large gathering. These are issues we discussed and hope that the best be achieved for Nigeria. We also noted that our ward congresses were results of direct primaries. The process involves multiple roles by INEC. If we have to involve INEC, their resources will be overstretched.”

 

The PDP, which spoke through its then National Publicity Secretary, Kola Ologbondiyan, said: “Our party holds that it is the inalienable right of each political party, within the context of our constitutional democracy to decide its form of internal democratic practices, including the processes of nominating its candidates for elections at any level.”

The arguments against the mode of primary, notwithstanding, the Speaker of the House of Representatives, Gbajabiamila, said direct primaries will bring more accountability and adequate representation.

According to him, with direct primaries, political office holders would not be restricted to pleasing a group of people selected as delegates. He further noted that through direct primaries, political officers would work for the generality of their party members, and by extension, the electorate.

Gbajabiamila said some members of the political class may not be comfortable with the arrangement, but that the majority of the masses are in support of direct primaries, which he said, will give them the opportunity of deciding who would represent them.

The speaker’s position was backed by some civil society partners on electoral matters, which not only commended the National Assembly for its passage of the harmonised Electoral Act bill, but urged the parties to accept and ensure the success of the direct primary mode retained in the bill as it provides young people and women the opportunity to contest on their own merit and popularity.

 

President’s reasons for initial withhold of assent

 

After much debate over the propriety or otherwise of direct primaries, the President, on December 21, 2021 declined his assent to bill. The rejection was conveyed in letters from the President read in the two chambers of the National Assembly. The President noted that the mandatory use of direct primaries for all political parties in the country would not only be too expensive to execute but will put a financial burden on Nigeria’s slim resources.

He also said that conducting direct primary elections will be tasking as well as stretch the security agencies since such mode of election means a large turnout of voters.

The letter read in part: “The conduct of direct primaries across the 8,809 wards across the length and breadth of the country will lead to a significant spike in the cost of conducting primary elections by parties as well as increase in the cost of monitoring such elections by INEC, which has to deploy monitors across these wards each time a party is to conduct direct primaries for the presidential, gubernatorial and legislative posts.

The addition of these costs with the already huge cost of conducting general elections will inevitable lead to huge financial burden on both the political parties, INEC and the economy in general at a time of dwindling revenues.

 

“The indirect consequences of the issues of high cost and monetisation are that it will raise financial crimes and constitute further strain on the economy. It will also stifle smaller parties without the enormous resources required to mobilise all party members for the primaries. This is not healthy for the sustenance of multiparty democracy in Nigeria.

“In addition to increased costs identified above, conducting and monitoring primary elections across 8,809 wards will pose huge security challenges as the security agencies will also be overstretched, direct primaries will be open to participation from all and sundry and such large turn-out without effective security coordination will also engender intimidation and disruptions, thereby raising credibility issues for the outcomes of such elections.

 

“The amendment as proposed is a violation of the underlying spirit of democracy which is characterised by freedom of choices. Political party membership is a voluntary exercise of the constitutional right to freedom of association. Several millions of Nigerians are not card carrying members of any political party.

 

Thus, the emphasis should be on enabling qualified Nigerians to vote for the candidate of their choice during general elections as a means of participation in governance and furtherance of the concept of universal adult suffrage or universal franchise.

“The proposed amendment may also give rise to plethora of Iitigations based on diverse grounds and issues of Law, including but not limited to the fact that the proposed amendment cannot work in retrospect given that the existing Constitution of the parties already registered with the Independent National Electoral Commission (INEC) permits direct, indirect and consensus primaries.

 

This real possibility, will, without doubt, truncate the electoral program of the nation as another electoral exercise is imminent towards a change of government in 2023. “Nigeria is at the moment still grappling with the issues of monetisation of the political process and vote buying at both party and general elections.

 

The direct implication of institutionalising only direct primaries is the aggravation of over-monetisation of the process as there will be much more people a contestant needs to reach out to thereby further fuelling corruption and abuse of office by incumbent contestants who may resort to public resources to satisfy the increased demands and logistics of winning party primaries.

 

“Direct primaries are also subject or susceptible to manipulation or malpractices as most parties cannot boast of reliable and verified membership Register or valid means of identification which therefore means nonmembers can be recruited to vote by wealthy contestants to influence the outcome.

Rival parties can also conspire and mobilise people to vote against a good or popular candidate in a party during its primaries just to pave way for their own candidates.

Whereas where voting is done by accredited delegates during indirect primaries, the above irregularities are not possible.

“Asides its serious adverse legal, financial, economic and security consequences, the limitation or restriction of the nomination procedures available to political parties and their members constitutes an affront to the right to freedom of association.

It is thus undemocratic to restrict the procedure or means of nomination of candidates by political parties, as it also amounts to undue interference in the affairs of political parties.

 

“Indirect primaries or collegiate elections are part of internationally accepted electoral practices. More so, direct primaries are not free from manipulations and do not particularly guarantee the emergence of the will of the people especially in circumstances like ours where it is near impossible to sustain a workable implementation framework or structure thereof.”

 

Kudos, knocks when Buhari declined assent

As expected, Buhari’s action then  triggered a chain of reactions from stakeholders. While the President had the backing of the governors, members of the National Assembly raised objection. Initial reaction by most senators showed that members of the Red Chamber were poised to override the veto of the President.

The senator representing Rivers East, George Sekibo (PDP), had raised a point of order immediately the President of the Senate president read Buhari’s letter. Sekibo asked the chamber to go behind closed doors to discuss the issue. After the closed session that lasted for 37 minutes, Sekibo told journalists that the Senate adjourned plenary to enable members to override the President.

 

“By law, we have the power to override him. That’s what Section 58 (4 & 5) said. We will use our powers to do it. And they are saying that people must be present at voting. Our rule gives us three methods of voting: voice vote, by signing the document (signature) and electronic voting.

 

So, we can use anyone. We collected signatures in the chamber and it cuts across party lines,” he said. He later confirmed that they had compiled 73 signatures to veto the President. In the House of Representatives, it was less of threat as Gbajabiamila, in his end of the year speech, said the Green Chamber will decide on the way forward on the bill next year. He noted that there would be no need to throw away the baby with the bathwater.

 

“As it is, it falls on the parliament to decide the way forward. When we resume next year, we will decide it together. We must not throw a baby away with the bathwater,” the speaker said. In a detour, the Senate later suspended move to override Buhari’s veto.

Lawan, who disclosed this, said that the upper chamber will consult with the House of Representatives on how to respond to the President’s decision to veto the Electoral Act 2010 (Amendment) Bill. The Senate president noted that the provisions of the 1999 Constitution do not permit the Red Chamber to exclusively take any action on such matters in the absence of the House of Representatives.

According to Lawan, a joint position would be reached between the Senate and House of Representatives after due consultation with Nigerians to determine the appropriate line of action, when members resume from the Christmas and New Year break. It was equally knocks for the  President by Lagos lawyer, Femi Falana (SAN), who said the reason adduced for his rejection then was grossly misleading.

 

His words then: “Having rejected to assent to the Electoral Amendment Bill in 2018 and now, President Buhari has confirmed beyond any shadow of doubt that his administration will not allow INEC to conduct credible elections in 2023 and thereafter.

 

That is going to be the tragic legacy of the President and the ruling party that were campaigning for electoral reforms before the 2015 general elections.”

 

Falana, who submitted then that the challenge before the National Assembly is to invoke the provision of section 58 (5) of the Constitution to pass the bill into law by the resolution of a two-thirds majority of the members, however suggested that section 87 of the Electoral Act, which allows for direct or indirect primaries should be left intact, so that the other provisions of the Electoral Amendment Bill 2021 can be passed again by the legislators and assented to by the President if the National Assembly cannot muster the required two-thirds majority.

 

The Centre for Democracy and Development (CDD), which also expressed shock over the President’s action, described his refusal as a lost opportunity. “Nigerians had all expected that President Buhari would write his name in gold as the president who bequeathed an improved electoral framework on the country,” Idayat Hassan, Director of CDD, said.

 

She, however, advised the legislators not to allow a single provision to hinder the proposed bill. She asked the National Assembly to either override Buhari and pass the bill or remove the provisions on direct primaries and represent the bill to the President.

The Conference of Nigeria Political Parties (CNPP), on his part, said it was not surprised that the President rejected of the Electoral Act Amendment Bill. The group, in a statement signed by its Secretary General, Chief Willy Ezugwu, said: “What would have been shocking is Mr. President assenting to the bill.” Giving reasons for its submission, the CNPP said “Nigerians should recall that President Buhari had excuses for refusing to sign the Electoral Act Amendment three times during the life of the 8th National Assembly led by Dr. Bukola Saraki.

 

“Even when the National Assembly removed all the clauses Mr. President stood against following his second rejection of the amendment to the Act, he still rejected the bill, claiming that the 2019 elections were too close for him to sign the bill into law. So, it was not surprising that the President refused to sign the latest amendment to the Electoral Act. It follows  his tradition.”

Bill reworked by National Assembly

 

The Electoral Act Amendment Bill was the front burner again by the time members of the National Assembly resumed on January 18. The two chambers of the federal legislature had to recommit the bill for fresh legislation and added other options as advised by the President. On February 1, the legislators transmitted the reworked version to Buhari for assent.

 

The harmonised version allows political parties’ to adopt three modes of primaries – direct primaries, indirect primaries and consensus. The re-amendment was sequel to a motion on “Rescission on Clause 84 of the Electoral Act No. 26 2010 (Amendment) Bill, 2022 and Committal to the Committee of the Whole,” sponsored by Senate Leader, Yahaya Abdullahi (Kebbi North).

The amended bill provides in Clause 84 (2), “The procedure for the nomination of candidates by political parties for the various elective positions shall be by direct, indirect primaries or consensus.”

It adds in 84(3): “A political party shall not impose nomination qualification or disqualification criteria, measures, or conditions on any aspirant or candidate for any election in its constitution, guidelines, or rules for nomination of candidates for elections, except as prescribed under sections 65, 66, 106, 107, 131, 137, 177 and 187 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).”

On Direct Primaries in 84 (4), the amended version provides that “a political party that adopts the direct primaries procedure shall ensure that all aspirants are given equal opportunity of being voted for by members of the party and shall adopt the procedure outlined below:

“(a) In the case of Presidential Primaries, all registered members of the party shall vote for aspirants of their choice at a designated centre at each ward of the Federation. “(b) The procedure in paragraph (a) above of this subsection shall be adopted for direct primaries in respect of Gubernatorial, Senatorial, Federal and State Constituencies.”

 

On indirect primaries, the bill provides under 84(5) that “a political party that adopts the system of indirect primaries for the choice of its candidate shall adopt the procedure outlined below: “(a) In the case of nominations to the position of Presidential candidate, the political party shall –

(i) hold a Special Presidential Convention at a designated centre in the Federal Capital Territory or any other place within the Federation that is agreed to by the National Executive Committee of the party where delegates shall vote for aspirants of their choice.

 

“(ii) the aspirant with the highest number of votes cast at the end of voting shall be declared the winner of the Presidential primaries of the political party and that aspirant’s name shall be forwarded to the Commission as the candidate of the party.”

 

On consensus, the bill in 84(9)(a) provides: “A political party that adopts a consensus candidate shall secure the written consent of all cleared aspirants for the position, indicating their voluntary withdrawal from the race and their endorsement of the consensus candidate.”

 

Reactions trail Clause 84(12)

 

The President’s signing of the Electoral Act (Amendment) Bill into law has elicited some measure of excitement in the polity with many describing his action as a step in the right direction towards improving the country’s electoral process.

 

Former President of the Senate, Bukola Saraki, who commended members of the civil society for their continuous agitation for the passage and signing of the new Electoral Act, said the new law provides an opportunity for all Nigerians to be part of the efforts to build a better future for our country.

His words: “This new Electoral Act will bring us closer to having free, fair, and peaceful elections where peoples’ votes will count and where the majority will have their way and the minority will have their say. For too long, the old electoral law had been part of the problem. We can now seek to elect our leaders having in mind the current challenges facing our country.

“With a new Electoral Act, we can move on to debating real solutions to the problems of insecurity, job creation, strengthening of the economy, cementing national unity, and building a better future for all Nigerians. That is why it is with great joy that I welcome the news that the country finally has a new Electoral Act. It is better late than never!”

 

Also reacting, an erstwhile Chairman of National Human Rights Commission (NHRC), Prof Chidi Odinkalu, backed the clause that bars political appointees as voting delegates or being voted for at the convention or congress of any political party for the purpose of the nomination of candidates for any election.

 

According to him, section 84(12) has and deserves its place in the amended Electoral Act. His words: “Buhari claims that the practical application of section 84(12) is to ‘by operation of law, subject serving political office holders to inhibitions and restrictions,’ disabling them from running for office or participating as party members under the constitution.

 

This is elevated nonsense. The words may have been uttered by Buhari but the thoughts are those of Abubakar Malami (Minister of Justice and Attorney General of the Federation).

 

“To begin with, there is no human right to be a political appointee. It is a privilege at the pleasure of the appointor. If a political appointee wishes to become a mover and shaker in the party or to run for office, they have the option to do the right thing and resign, first in order to devote all their attention to that.

It also means they don’t steal public money to fund their political ambition. “I would expect a president committed to fighting corruption to understand the design of the National Assembly in this provision and to commend it. Lots of ministers in Buhari’s cabinet who want to run for office are holding on to office, waiting to hollow out this year’s budget.

 

That sucks! “Any suggestion by anyone, no matter how elevated, that section 84(12) is contrary to any constitutional provision is plainly illiterate, uninformed, self-serving or all of the above and worse.

These people aren’t content with plundering the country. They want to scorch the earth. Stop them!” In the same vein, the Conference of Nigeria Political Parties (CNPP), urged well-meaning Nigerians to strongly resist the removal of Clause 84(12) from the Electoral Act, insisting that it actually introduced equity into political party primaries at all levels.

 

CNPP, in a statement signed by its Secretary General, Chief Willy Ezugwu, said: “Mr. President is crying more than the bereaved by ordering the immediate removal of the clause that barred political appointees at all levels from voting as delegates or be voted for at party conventions or congresses political parties for the purpose of the nomination of candidates for elections.

 

“An appointee of the executive should not, and must not, be a delegate in primary elections while still in office, just as an appointee must not be contesting as a delegate while still in office.

Such appointees have ended up using their offices to intimidate political opponents of their principals during party primaries in a bid to retain their jobs.

 

“This is the major reason for electoral violence witnessed at local government and state congresses of most virile political parties in the country with the attendant loss of lives and property.

 

Rather than delete the clause, the National Assembly should amend any provision of the constitution that allows any appointee to be a delegate or be a voter or contest as delegate at party conventions or congresses for the purpose of the nomination of candidates for any election.”

 

No doubt, the new Electoral Act, which provides for electronic transmission of election results from the polling booths, will further help in boosting the credibility of Nigeria’s electoral process, it is equally expected that it will help the Independent National Electoral Commission (INEC) commence proper planning for the 2023 general election.

Already, the commission, in reaction to President Buhari’s signing of the bill into law, through is national chairman, Prof Mahmood Yakubu, announced at the weekend that the presidential and National Assembly elections will now hold on February 25, 2023, while the governorship and state Houses of Assembly polls will hold on March 11, 2023.

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