UNDERSTANDING THE ELECTORAL (AMENDMENT) ACT, 2015 (PART 1)
Introduction
One of the pre-conditions for free, fair and credible elections is a coherent, unambiguous legal framework. This is so because elections are predicated on the viability and potency of a legal architecture anchored on the principles of inclusion, integrity, justice and equity. The Electoral legal framework defines political relationships, creates a framework for the actualization of citizens franchise and a conflict management system. The legal framework must be structured to ensure the sanctity of the votes, an ordered process and participation of stakeholders. Its non-existence could potentially undermine the integrity of elections and create pathways to political instability.
Since the return to democracy, Nigeria has been restructuring its electoral process in an attempt to promote free, fair and credible elections,thereby deepening democracy. The continuous attempt to reform the electoral process is borne from the irregularities, malpractices, and violence that characterized elections post 1999. Obviously, the history of elections in Nigeria has been tainted with massive irregularities, prebendal politics, and violence. For instance, the report of the Babalakin commission of inquiry established to investigate the Ondo state governorship elections in 1983 identified several legal, structural and procedural challenges that impugned the credibility of elections in Nigeria to include; illegal printing of ballot papers, voter cards, illegal compilation of voter register, compromised voter register, falsification of election results, poor election logistics management etc.
Twenty-four years later, these same issues informed the establishment of the Electoral Reform Committee (ERC) headed by former CJN Justice Muhammadu Uwais following the conduct of the 2007 elections. The committee undertook one of the most comprehensive electoral reform exercises in recent times. It proposed fundamental changes in the electoral process. Key among them is the unbundling of INEC, procedure for appointment and removal of members of the Commission, dates, and sequence of elections, security of election materials etc. There is no gainsaying that the Uwais report is a reference tool for recent electoral reform efforts. Whilst some of its recommendations on financial autonomy for INEC and improved security features on sensitive election materials have been mainstreamed in subsequent reforms, the electoral process remains far from perfect.
Following the conclusion of the 2011 general elections, the movement for the amendment of the 2010 Electoral Act (as amended) and the 1999 Constitution (as amended) to address key challenges arising from the 2011 elections commenced. Civil society organizations like the Partners for Electoral Reform, Youth Initiative for Advocacy, Growth & Advancement, Nigeria Civil Society Situation Room, Centre for Democracy and Development, Alliance for Credible Elections etc, led diverse advocacy initiatives on ensuring reforms to the electoral Act. Some of the key issues on the reform agenda include the appointment of INEC commissioners, unbundling of INEC, electronic voting, the role of military and security agencies in elections, prosecution of electoral offenses etc.
As previously experienced, the amendment process took the normal trajectory of previous reform processes. Since the enactment of the 2003 Electoral Act, it has become a norm for electoral reform to dovetail right into the electioneering period. For instance in the 2011 general elections, the amendments occurred four months to the general elections. This current amendment assumed a worse dimension, as the Bill which scaled through the National Assembly on March 10th, 2015 received presidential assent on March 26th, 2015 two days to the historic March 28th Presidential elections. Until this minute, the new amendment is largely obscure even to election administrators and experts.
The attitude towards electoral amendment in Nigeria does not only impact on the management of elections by INEC but also affects planning by other stakeholders. For instance, the planning of voters education program becomes onerous for political parties, media, and civil society. It must, however, be stated that the 2015 elections were conducted using the Electoral Act 2010 (as amended) despite the existence of a newly amended electoral law. This is the impasse the African Charter on Democracy, Elections, and Governance sought to cure when it stipulates that electoral amendment must occur at least 6 months before the date of an election. This provision was also reinforced in the ECOWAS Supplementary Protocol on Democracy and Good governance.
New amendments to Nigeria’s Electoral Act
- Tenure of the Secretary to the Independent National Electoral Commission – Section 8 (1) was amended to fix a definite term of office for the Secretary to the Commission. A period of 4 years from the date of appointment was inserted in the section. The tenure is renewable for another period of 4 years only. The position of the Secretary was first established by the 2006 Electoral Act, which empowered the commission to appoint its own Secretary. This amendment puts an end to the controversy on the tenure of the Secretary created by the silence of both the 2006 Electoral Act and the 2010 Electoral Act as amended. The office of the INEC Chair, National Commissioners, and Resident Electoral Commissioner are tenured. This prevents abuse of power and sit-syndrome by public officials. The provision on the tenure for the INEC Secretary could potentially stem abuse of power and controversies that have trailed the office in the past.
2. Increased number of days for transfer of registered voters – Section 13 (2) was amended to increase the number of days for applying for transfer of voter registration details to 60 days before the date of an election as against the 30 days stipulated in the 2010 Electoral Act As amended. The import of this provision is all application for transfer must be filed 60 days before an election. This amendment avails the electoral commission adequate time to process a request for transfers while also facilitating the prompt update of the voter register ahead of an election. In the same vein, this amendment may also reduce the arbitrary abuse of the transfer option witnessed in the staggered elections, where voters transferred from one location to the other at will. However, the flip side to this amendment lies in its potential to disenfranchise eligible voters who may be confronted with unforeseen circumstances; that necessitate relocation from one place to another 30 days to an election.
3. Increased number of days for applying for duplicate voter card – Section18 (1) and (3) were amended to increase the number of days from 30 to 60 days within which a registered voter can apply for a duplicate voter’s card in cases where his/her voter’s card is lost, damaged or destroyed. This provision prevents the electoral commission for issuing any duplicate card 60 days to an election even if the commission has reasonable grounds to accede to the request. This provision benefits the electoral commission but could negatively impact on voter turn out because once a voter loses his/her card after the 60 days requirement elapsed; he/she cannot apply for a duplicate voter card to vote in an election. Ordinarily, registered voters are duty bound to safely keep their voter card; however there are some unforeseen circumstances or accidents that are totally not within the control of voters. This could lead to either loss or damaged voter cards. To preclude registered voters who are victims of accidents or natural events from voting due to the fact that it occurred after the 60 days timeline could be tantamount to injustice. The legal framework should aim to guarantee citizens access to the electoral process and not stifle the political space.
4. Voting rights of Internally Displaced Persons (IDPs) – Section 26 was amended by the insertion of a new subsection that provides for the participation of displaced persons in voting at elections. It compels INEC to ensure IDPs are not disenfranchised in the event of an emergency affecting an election. Emergency in this context could be insecurity, environmental or natural disasters. This amendment creates a level playing field for the exercise of franchise by all the stakeholders. The voting right of an estimated 3 million displaced persons was a topical issue in the 2015 elections. The electoral commission was confronted with the complexity of managing this challenge vis-à-vis an extant legal framework that confines registered voters to vote in polling units where they are registered. This necessitated the reforms introduced by INEC to accommodate IDPs in the 2015 elections. The commission reviewed its guidelines and manual to ensure IDPs in Adamawa, Borno and Yobe states vote in the IDP camps and centers. The new amendment can be interpreted to legitimize the administrative actions taken by INEC to accommodate voting and results collation in IDP camps / centers. The new provision was drafted in a manner that gives INEC the latitude and flexibility to determine the procedure for ensuring Nigerians displaced by an emergency are not disenfranchised. Furthermore, the amendment provides sufficient legal basis for the electoral commission to undertake IDP voting.5. Expanded jurisdiction for Oath-taking by election officers – Section 28 (1) was amended to expand the jurisdiction of administering Oath of neutrality for election officials to any court or Commissioner for Oaths. Previously, only the High Court could administer Oath of Neutrality to election officers. With this amendment election officials can approach any court or Commissioner for Oaths to affirm their neutrality. The amendment will accelerate the process of oath taking by election officials.
This article is a first of a series discussing the 20 new amendments in the Electoral (Amendment) Act, 2015 and its implications on the electoral process.
To be continued…
Samson Itodo is an elections enthusiast and he works with the Youth Initiative for Advocacy, Growth & Advancement (YIAGA). He tweets @DSamsonItodo