Electoral Hub

THE ELECTORAL LANDSCAPE SINCE ASSENT OF THE ELECTORAL ACT 2022

Introduction

On Friday, February 25, 2022, President Buhari signed the Electoral Act 2022 into law after rejecting assent five times previously. While signing, the President noted that Electoral Act 2022, would revolutionize elections in Nigeria by ensuring free, fair, and credible elections. Following the presidential assent, on Saturday, February 26, 2022, the Independent National Electoral Commission (INEC) released a new timetable for the 2023 general elections, with the conduct of party primaries, including the resolution of disputes arising from them now scheduled for April 4, 2022, to June 3, 2022. Signing the Electoral law restores some measure of trust in the electoral process and credibility of the forthcoming 2023 general elections.

The Electoral Act 2022 repeals the Electoral Act 2010 (as amended) to improve the quality and integrity of elections and the electoral process by addressing specific flaws in the repealed Act. As noted by INEC National Commissioner and Chairman, Information and Voter Education Committee, Festus Okoye, the new law contains many progressive provisions that would facilitate the conduct of free, fair, and credible elections in Nigeria.  Some of these key progressive provisions in the new Electoral Act that signpost the improvements in the electoral process includes:

S/N Section Provision  
1 Section 3(3) Early release of INEC’s funds
2 Section 8(5) Political neutrality of INEC Staff
3 Section 28 Notice of election 360days to election[2]
4 Section 29 (1) Early conduct of Party Primaries
5 Section 34 Substitution of candidates who dies during election
6 Section 37 Contested election of candidate nomination (validity of nomination)
7 Section 47 (2) The legalization of electronic accreditation of voters
8 Section 50 Allows INEC to determine the mode of results transmission
9 Section 51 Redefined Overvoting focuses on the number of accredited voters
10 Section 54(2) Inclusion of Persons With Disability
11 Section 65 Gives INEC Powers to review results declared under duress
12 Section 75(1) Registration of parties terminates 12months before the general election[3]
13 Section 81(2) Notice of merger of parties 9months to the general election
14 Section 84 (12) Resignation of political appointees before they can participate in primaries as voters and candidates
15 Section 94 (1) Extension of period of campaign to 150days before 24hours to the election

 ‘Unfolding’ Issues Since Assent to the Electoral Act

It is worth noting that while assenting to the Electoral Act, the president sought to amend Section 84(12) of the electoral act because according to him, it conflicts with the Constitution. The following are the key ‘unfolding’ issues with implications for the electoral process following the signing of the Electoral Law.

  1. Amendment of Section 84(12) and AGF Malami’s Attempt at ‘Tampering’ with the Electoral Act 2022.
  2. On Tuesday, March 1, the Senate reported that it had received a letter from the President requesting an amendment to Section 84 (12) of the Electoral Act 2022. The executive Bill, however, was rejected at first reading. In the law-making process, if the Bill fails to pass the first reading, it dies.
  3. The Executive, spearheaded by the Attorney General of the Federation and Minister of Justice Abubakar Malami, expressed displeasure with the legislature’s refusal to amend Section 84(12) of the Act. A week after the rejection of the Bill, he stated that the Federal Government would investigate all available options for amending the Electoral Law.
  4. On Friday, March 18, the Federal High Court sitting in Umuahia, Abia State, annulled Section 84 (12) of the Act and ordered the deletion of the provision three weeks after President Muhammadu Buhari signed the Electoral Act Amendment Bill 2022 into law.
  5. Justice Evelyn Anyadike, who presided over the case[4] gave a ruling which states that section 84(12) of the amended Electoral Act was inconsistent with Sections 66(1) (f), 107(1) (f), 137(1) (f) and 182(1) (f) of the 1999 Constitution and was consequently unconstitutional, invalid, illegal, null, void and of no effect whatsoever.[5] According to her these sections of already Constitution already provided that government appointees seeking to contest elections were required to resign at least 30 days before the election date and that any other law requiring such appointees to resign or leave office before that date was unconstitutional, invalid, illegal, null and void to the extent of its inconsistency to the clear provisions of the Constitution.
  6. Justice Evelyn Anyadike directed that the section be struck down as it cannot stand when it violates the clear provisions of the Constitution. She directed the Attorney-General of the Federation (AGF) to immediately erase sub-section 12 of section 84 from the Electoral Act, 2022.
  7. A few hours after the judgment was delivered, the Office of Attorney General and Minister of Justice announced Federal Government’s plans to implement the court judgment allowing political appointees to run for office without resigning.
  8. The decision appears to favor appointees who have expressed interest in contesting in 2023 elections such as Abubakar Malami, the Attorney-General of the Federation, who is alleged to be interested in running for governor of Kebbi State; Hadi Sirika, the Minister of Aviation, who is rumored to be interested in running for governor of Katsina State; and Rotimi Amaechi, the Minister of Transportation, who is alleged to be interested in running for the position of president of the Republic.
  9. On Wednesday, March 23, the Senate resolved to appeal the judgment of the Umuahia Federal High Court nullifying the provision of Section 84(12) of the Electoral Act 2022.[6]

The national assembly has the authority to make and alter laws. The Judiciary lacks the legal authority to repeal laws[7]. The proper procedure for altering legislation is to send it to the legislature for revision and amendment, and in this case, the Act should be sent for amendment. Section 84(12) ensures that state apparatuses would not be used for electioneering thereby ensuring that everyone has a level playing field in contesting for public office. Interfering with the functions of the legislature by the executive and judicial branches of government is unlawful and interferes with the credible electoral process.

  • Political Party Defection

Why there is nothing wrong with defecting from one party to another in terms of individuals’ constitutional and human rights, it is expected that such moves should be “predicated upon well-articulated principles and unimpeachable political ideology”[8]. It is not expected that a defection should happen after riding on a party vehicle to power as is the trend in Nigeria where defection is not anchored on democratic values but self-interest and opportunism. Cross carpeting for political and financial advantage undermines democracy and the mandate on which the principal was elected. However, with recent court rulings on incidents of cross carpeting and desertion, it is clear that the Judiciary is taking significant steps to curb defection. This could be a major judicial contribution to current electoral reform.

The decision of a Federal High Court to remove Governor Dave Umahi of Ebonyi State and Governor Ayade of Cross River State for defecting from the PDP to the APC may put a stop to political leaders defecting from one party to another.

  • On Wednesday, March 9, 2022, the Federal High Court sitting in Abuja and presided over by Justice Inyang Ekwo delivered a judgment ordering the sacking of David Umahi and his deputy, Dr. Kelechi Igwe. The Judge had declared that the mandate of the People’s Democratic Party, on whose platform Umahi won before he decamped, could not be transferred to the APC[9].
  • The judgment also affected 15 members of the Ebonyi State legislature who defected with Umahi from the Peoples’ Democratic Party to the All Progressive Congress. The 15 members just like the governor, would have to relinquish their seats for the PDP.
  • Similarly, on Monday, March 21, Justice Taiwo O. Taiwo, sacked the Cross River State House of Assembly Speaker and 17 of his colleagues alongside two members of the House of Representatives for defecting to the APC, when “there were no justifiable reasons” for their action.[10]

These judgments will hopefully be precedents and serve as deference to defection by elected leaders from one party to another.  Abiodun Adediran Olatunji (SAN) expressed his views, stating that Sections 144 (1) and 189 (1) of the Constitution, which provide for the circumstances under which the President, Vice President, Governor, and Deputy Governor of the State shall cease to hold office, should be amended to include situations where the President, Vice President, Governor, or Deputy Governor defected from the party that sponsored their election to another party.

Similarly, Section 68(1)(g) of the Constitution should be modified to prevent members of the National or State Assembly from using it as a cover whenever they defect from the party that sponsored their election to another. [11]About 16 months to the end of the 9th House of Representatives, only 6 of the 21 members elected to the House on the platform of minor political parties in 2019 remain in those parties. The others have mostly defected to the ruling All Progressives Congress (APC), despite the 1999 Constitution frowning at lawmakers switching parties at will.[12]

  • Political Party and Candidates

  1. APC Leadership Tussle:

The power struggle within the party for the next party chairman’s position resulted in a lot of rivalry among party members. The contest for the seat of All Progressives Congress (APC) national chair was not only between applicants for the seats but also among members who supported these aspirants. To replace the acting Chairman, Governor Mai Mala-Buni, the popular candidates were initially narrowed down to former Nasarawa State Governor Umaru Tanko Al Makura and Senator Sani Musa, who currently represents Niger East in the upper chamber. President Muhammadu Buhari, however, indicated a day before the convention that he would like Abdullahi Adamu, the former Governor of Nasarawa State from (1999 to 2007) and currently serving as a Senator representing the Nasarawa West Senatorial District, to be elected as the party’s national chairman. The important events leading up to the new APC National Chairman’s succession and convention are listed below.

  • While Senator Sani Musa received endorsement from Governor Abubakar Sani Bello, his home state Governor and massive backing from the National Assembly members, the presidency rooted for Senator Tanko Al Makura
  • Major stakeholders in the party were banking on Senator Sani Musa to reposition APC, which appears to be in total confusion on how to address critical issues confronting it across the 36 states[13]
  • On February 28, 2022, the Caretaker/Extraordinary Convention Planning Committee (CECPC) Chairman took a long-delayed trip abroad on health grounds, leaving behind written authorization for other members of the CECPC to continue work in his absence, particularly the day to day management of the APC
  • On March 7, 2022, Governor Abubakar Sani Bello presided over the meeting of the APC Caretaker/Extraordinary Convention Planning Committee and State chairmen of the party as acting national chairman of the party following the alleged removal of Governor Mai Mala Buni of Yobe State, who has been in charge of the ruling party’s caretaker committee in the last two years.
  • Governor Mai Mala Buni refuted claims neither he nor another member of the CECPC have been removed from Office or otherwise replaced stating that actions were identified at all times as happening in an acting or proxy capacity
  • Niger State Governor and acting national Chairman of the All Progressives Congress, Abubakar Sani Bello, appears to have beaten a tactical retreat in his cold war with the Yobe State governor, Mai Mala Buni, and national secretary of the All Progressives Congress
  • As President Buhari declared his preferred candidate for the National Chairman of the party, Senator Abdullahi Adamu, the other six aspirants have stepped down to support the decision of the president[14].

  • PDP Internal Struggles 

The PDP has been dealing with internal challenges focused mainly on the issue of zoning of the presidential ticket[15]. There is a sharp disagreement between main contenders and presidential aspirants across the north and south divide on which part of the country should get the presidential ticket to contest the election. For instance, Governor Tambuwal, one of the anti-zoning has called for the focus to be on winning the election through competence and not zoning. Arewa Youths Consultative Forum (AYCF) has also called for the resignation of Governor Ortom, the chairperson of the zoning committee for his handling of the issue. This period also saw more PDP aspirants declaring interest to contend for the presidential ticket. These include Atiku Abubakar (March 23, 2022)[16]; Peter Obi (March 24, 2022)[17]; and Nyesom Wike (March 27, 2022)[18]. These are coming after the declaration of intent by Bukola Saraki, former Senate President in January 2022[19].

  • Inter-Party Rumble: PDP’s Attempted Intervention in APC’s Convention

The PDP has asked a Federal High Court in Abuja to declare the All Progressives Congress (APC) convention illegal and unconstitutionalIt is also seeking an order of the court to deregister the APC that the APC failed to meet the requirements of sections 222(a), 223(b), and 225 of the 1999 Constitution.It further asked the court for an order of perpetual injunction restraining the Independent National Electoral Commission (INEC) from recognizing, communicating with, dealing with, or having any business whatsoever with the APC as a registered political party.

In the suit filed by its counsel, Samuel Irabor, the PDP claimed that according to a certified true copy of INEC’s list of APC’s current officers, the party is being run by a 13-member executive committee, which is below the constitutional stipulations in Section 223 of the 1999 Constitution that the executive committee or governing body of a political party must be drawn from two-thirds of the 36 states of the federation, which is mathematically 24. It called for “a declaration that by the express provisions of Section 223(2) (b) of the 1999 Constitution, the leadership of the APC cannot be made up of only 13 members as presently constituted by the chairman of the CECPC and forwarded/registered with INEC” and “a declaration that all the prior actions and subsequent actions undertaken by the defendants are null, void, and of no effect.[20]

Conclusion

The signing of the new Electoral Act is a milestone in our democratic dispensation. It is a great step toward improving the integrity and credibility of the electoral process as well as strengthening the institution of election management – INEC. There are key provisions that deepen INEC’s independence, funding, and operations such as Sections 3(3), 28, 29, 47, 50, and 65.

However, it is not merely the passage of the law that safeguards the integrity of the electoral process; it is also the enforcement of the law and strong institutions that allow for free and fair elections thereby strengthening democracy. As stated by Professor Jinadu during The Electoral Forum’s Third Technical[21] meeting, in electoral reforms, we must accept that the law has limitations as an instrument of socio-political change, mostly due to the ability of human beings to manipulate systems. In other words, the law cannot modify attitudes, particularly the unwholesome attitudes and behavior of the predatory ruling class in Nigeria who specialize in manipulating the laws for personal gains. The current reforms in the process such as the unfolding jurisprudence on defection are good for the system as they would help to sanitize the process thus further improving electoral integrity in Nigeria. The sacking of elected persons for defection is strong deterrence and should become a norm. However, Section 84(12) is a progressive provision that should not be removed. In addition, the due legislative process should be followed in amending the Electoral Act. The executive and judiciary should desist from circumventing this legal procedure for altering the legislation which is the constitutional mandate of the legislature. More importantly, we need to move forward and embrace politics for the collective, the citizens, and not for personal gain. Finally, relevant sections of the Constitution such as Sections 68 (1-g), 144 (1), and 189 (1) should be reviewed to prohibit political party


[1] See INEC’s Timetable & Schedule of Activities for 2023 General Elections

[2] Section 28(3) provides for 14days notice of election before the date for bye-election

[3] This is particularly important in addressing the unwieldiness in number of parties on the ballot

[4] suit marked FHC/UM/CS/26/2022

[5] https://guardian.ng/news/electoral-act-2022-buhari-wins-as-court-voids-section-84-12/

[6] https://punchng.com/breaking-apc-bars-political-appointees-from-voting-at-national-convention/

[7] Some lawyers have argued that court can order the deletion of sections of legislations claiming the ‘blue pencil rule’

[8] Opadere, O.S. and Agbana, J. O. (2015) “Cross Carpeting in Nigerian Politics: Some Legal and Moral Issues Generated” Frontiers of Legal Research Vol. 3, No. 2, 2015, pp. 22-39 DOI: 10.3968/7011

[9] https://punchng.com/umahi-caught-in-the-web-of-defection/

[10] https://www.premiumtimesng.com/news/top-news/519527-court-postpones-judgement-on-cross-river-governor-ayades-defection.html

[11] https://guardian.ng/features/we-need-anti-defection-law-to-check-party-cross-carpeting-says-olatunji-2/

[12] https://www.premiumtimesng.com/news/headlines/509549-carpet-crossing-how-desperate-parties-biased-speaker-others-help-lawmakers-trample-on-nigerian-constitution.html

[13] ibdi

[14] https://punchng.com/breaking-apc-convention-six-chairmanship-aspirants-step-down-back-buharis-candidate/

[15] https://www.premiumtimesng.com/news/top-news/519478-2023-why-pdpll-maintain-its-zoning-policy-ayu.html

https://guardian.ng/news/2023-pdp-inaugurates-zoning-committee/

https://punchng.com/2023-atiku-saraki-tambuwal-violating-pdps-zoning-principle-says-wike/

[16] https://guardian.ng/breakingnews/atiku-declares-to-run-for-president/

https://www.premiumtimesng.com/news/headlines/519188-2023-atiku-formally-declares-ambition-highlights-five-focus-areas.html

[17] https://www.channelstv.com/2022/03/24/peter-obi-declares-to-run-for-president-in-2023/

https://www.premiumtimesng.com/regional/ssouth-east/519426-2023-peter-obi-declares-for-president-vows-to-create-jobs-secure-nigeria.html

[18] https://businessday.ng/news/article/wike-reveals-why-he-chose-benue-to-declare-for-presidency/

https://www.premiumtimesng.com/news/headlines/520130-2023-governor-wike-declares-for-president.html

[19] https://www.premiumtimesng.com/news/top-news/508123-2023-saraki-declares-intention-to-run-for-president.html

https://punchng.com/saraki-declares-intention-to-run-for-president-in-2023/

[20] https://tribuneonlineng.com/pdp-asks-court-to-deregister-apc-declare-todays-convention-illegal/

[21] See Report of the Third Technical Meeting of The Electoral Forum, January 22, 2022

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