Dissecting and Interrogating Electoral Act 2022

POSTSCRIPT BY WAZIRI ADIO

Two events kindled Nigeria’s always-active political space last week. On 25th February, President Muhammadu Buhari signed the Electoral Bill 2022 into law. The following day, the Independent National Electoral Commission (INEC) announced new dates for party primaries and the 2023 general election. Both developments dispersed the dark cloud hovering around the law and the dates for next year’s crucial elections, and are thus commendable. Now that the Electoral Act 2022 is in place and the electoral management body has rolled out the timetable, some dissection and interrogation are in order.

To start with, the new electoral law has important provisions that should strengthen the hands of INEC, reduce the room for electoral mischief, expand participation and, all things being equal, enable the conduct of free, fair and credible elections next year and beyond. Yiaga Africa, a youth-led group that spearheaded advocacy for the new law, has published a nifty list of the top ten provisions of the law. These provisions include early release of fund to INEC, electronic transmission of results, incorporation of the need of people living with disability, early conduct of primaries and commencement of campaigns, definition of over-voting, clarity on substitution of dead candidates, power of the electoral body to review results declared under duress, and the neutrality of INEC officials.

These are significant provisions that seek to address some of the observed lapses in our elections. The new law is a major improvement on the repealed Electoral Act 2010. This is forward motion, and that is how things should be: new laws or amendments to older ones should clarify grey areas, address emerging issues and introduce innovations. All those involved in this drawn process—the federal legislators, INEC, civic groups, the media and the president—deserve special praises.

Some of these consequential provisions are worth situating properly, and questioning even. A major provision of the Act is that money meant for conduct of elections should be released to INEC early. Section 3 (3) of the Act states: “The election funds due to the Commission for any general election are to be released to the Commission not later than one year before the next general election.” This provision is designed to ensure that INEC can plan and undertake necessary procurements for the elections in advance. Not having money on time can constrain the capacity of the electoral management body to have adequate electoral materials and to deliver them on time. So, this is a good and practical provision.

By the new law, money for the 2023 general election should have been released to INEC in full (not in tranches) before or by 25 February 2022. It is not clear if this has been done. Given that the president signed the Act that same day and INEC announced the new timetable on 26th February, it is understandable if there is a slight delay. But the law is the law, and since the president has not sought an amendment to this aspect of the law, it has to be complied with. The N305 billion appropriated to INEC is some tidy sum in hard times but it is tiny in the grand scheme of things (less than 2% of the N17.12 trillion appropriated for the Federal Government for 2022). It is important to not disobey a duly passed law or to give the electoral umpire any excuse.

There are some other provisions that also have the potential of increasing the agency, the neutrality and the credibility of the election management body. Some of these include: Section 8(5) which frowns at and criminalises members of political parties seeking appointment in or being appointed to work in INEC; Section 47(2) which provides a legal basis for electronic accreditation of voters; Section 50(2) which allows INEC to determine means of transmitting election results; Section 51(2) which permits the returning officer to cancel results where total votes cast exceed the number of accredited voters; and Section 65(1) which grants INEC the power to review results declared under duress. Some of these provisions are in response to some litigations or the games that politicians routinely play. While they may not be the cure-all that some people project them to be, some of these new provisions are potential game-changers.

Remarkably, the new electoral law mandates early conduct of primaries and early commencement of campaigns. Section 29 (1) of the Act stipulates that political parties must submit the lists of their candidates not later than 180 days to the election while Section 94 (1) states that political parties can commence campaigns 150 days to polling day. In line with the Act, INEC has announced the following timelines: parties must conduct their primaries between 4th April and 3rd June; parties must submit the lists of their candidates for federal elections between 10th and 17th of June and for state elections between 1st and 15th of July; and parties can start campaigns for federal elections on 28th September and for state elections on 12th October.

To be sure, a good case can be made for having candidates on time and for adequate time for the elections. For one, it makes for clarity. Second, it gives enough room for the resolution of pre-election issues which form the bulk of litigations around our elections. Third, it provides the needed flexibility to address regular and unforeseen exigencies in election management. And most important, it affords INEC adequate time to plan for and handle the huge logistics undertaking of organising elections in a challenging environment such as ours.

But there is always a trade-off. An obvious one is that the cost and burden of campaigning for elections will increase. The amount needed to campaign for two to three months may not be what is needed to campaign for five months. With primaries likely concluded in May and official campaigns starting in September/October, the real (as opposed to the official) campaign period may actually be nine months. Well, the political parties and the candidates will learn to pace themselves. But this extended campaign period will further disadvantage those with lean resources and possibly advantage those with access to public resources or those in a position to dispense patronage.

This leads to my most critical issue with early primaries/campaigns provisions: the potential impact on governance. With the timetable out, political actors and even the larger populace are more focused on politics and elections. Even critical policy decisions will be made with politics in mind. Clearly, politics is a key consideration in kicking deregulation down the road. It is reasonable to expect that governance, never really a priority for most in the public space anyway, will now be consigned to the shadows. Effectively, the next one year can be written off as the year of politics. It is tempting to think that the elected and appointed officials who are not running for elections will not be distracted and will focus fully on their briefs. Sadly, most of those in this category will be consumed with either installing their successors or positioning themselves for relevance or appointment in the next government. And for President Buhari, the lame-duck period arrived too early. A time that ordinarily should be used for focus intensely on unfinished businesses is likely to be a time of high distraction, even within his government.

On the surface, the disputed Section 84(12) of the Act was partially designed to address this challenge. And with candidates emerging almost nine months to elections, it makes a lot of sense to ask political appointees who have interest in running for office to step aside on time. When appointees have to contest in primaries (which involve some campaigning) and run campaigns for the main elections for a long period, it stands to reason that there will be conflict of interest, unfair advantage and divided attention, all at the expense of the public. This needs to be addressed, but not in the manner stated in Section 84(12).

I believe President Buhari is right in objecting to that section because I think it in is conflict with the constitution. Section 18(12) of the Act disqualifies political appointees from voting or being voted for when parties choose their candidates. In his letter to the National Assembly, President Buhari said this provision violates sections 40 and 42 of the constitution, which deal with the right to association and freedom from discrimination. He said the disputed section discriminates against political appointees because it imposes additional requirements on them beyond the ones already in the constitution. I think this is a valid point on constitutional grounds.  

What the president didn’t state explicitly is that Section 66(f), Section 137(g) and Section 182(g) of the 1999 Constitution state that those who are employed in the civil service and public service of the Federation or of any state cannot contest for office if they have not “resigned, withdrawn or retired from the employment at least thirty days before the date of election.” Political appointees are not civil servants but they are public officials. Section 318 (1) of the constitution defines both civil service and public service. It is clear the latter covers political appointees, especially with this provision: “public service of a state means the service of the state in any capacity in respect of the government.”

I have also read references to a 2018 ruling of the Court of Appeal in Ojonye v. Onu and others claiming that political appointees are not public servants. The ruling was that local government chairmen, like presidents and governors, do not have to resign to contest elections. The ruling is not about those appointed as ministers/commissioners, heads of agencies or corporations or advisers/assistants.

A bit of background is also useful here. There was actually a version of 84(12) in the previous law. Section 87 (8) of the Electoral Act 2010 stipulates that: “A political appointee at any level shall not be an automatic voting delegate at the convention or congress of any political party for the purpose of nomination of candidates for any election, except where such a political appointee is also an officer of a political party.” This section was designed to stop presidents and governors from giving themselves undue advantage over their competitors by making their plethora of aides and appointees delegates in party primaries. It didn’t say that appointees could not contest in primaries.
I don’t think the drafters of the constitution envisaged that candidates would emerge nine months before elections.

The entire election window used to be 90 days. So that section of the constitution needs to be adjusted to new realities. But you can’t amend a constitution with a law. You either amend the constitution or you find other ways of tackling the problem. I think the National Assembly should accede to the president’s request by deleting that provision or by keeping the version in the 2010 Act. However, given the cost of divided attention ultimately to the public, the president and the governors will do well to ask appointees interested in running for office to tender their resignations or just let them go. It makes moral, practical and legal sense.

It is possible that some might have been misled by the advocacy around the electoral act that it is the panacea to all electoral ills. It is not. The law can only be an enabler, even if it is a perfect law, and there is no perfect law. Many other things need to happen for the next general election to be a remarkable improvement on the previous ones and to accurately reflect the preference of the voters. The president needs to see free, fair and credible election as a major legacy and he should ensure that money is promptly released to INEC, that state apparatuses are not pressed to political advantage, and that there is adequate security for the elections. Potentially more empowered, INEC needs to put up its best act. The judiciary must step up to the plate too. And political actors (including the electorate) must be willing to play within the rules of the game and be ready to accept the outcome, whether favourable or not. At the end of the day, it is what the various stakeholders do, and not just the law, that will be make the most difference in 2023.