Electoral Act Amendment Bill: Towards Free, Fair And Credible Elections

Nigerians were recently greeted with the news that President Muhammadu Buhari had declined assent to the Electoral Act Amendment Bill 2018. This is the fourth time the President has declined to give assent to the bill. The President’s decision will have far-reaching consequences for the credibility of the 2019 polls and whether the polls will in all sincerity, be declared to be free, fair and credible. Free, fair and credible polls are premised on the understanding that the announced results reflect the will of the electorate; elections are transparent when each step is open to scrutiny, and stakeholders can independently verify whether the process is conducted honestly and accurately.

One of the key reforms found in the bill is its insistence on the use and mainstreaming of the Smart Card Reader in the electoral process. The bill provides that the Presiding Officer shall use a SCR or any other technological device that may be prescribed by the Independent National Electoral Commission for the accreditation of voters, to verify, confirm or authenticate the particulars of the voter in a manner prescribed by the commission. Where a SCR deployed for accreditation of voters fails in any polling unit and a fresh SCR is not deployed, the election in the unit shall be cancelled and another election shall be scheduled within 24 hours. The bill also states that where during the collation of results, there is a dispute regarding a collated result or the result of an election from any polling unit, the Collation Officer or Returning Officer shall use inter alia, the SCR or any other technological device used for accreditation of voters in each polling unit where the election is disputed for the purpose of obtaining accreditation data direct form the SCR or technology device.

The foregoing provisions seek to respond to the mischief in the existing law, which crystallised in election petition decisions arising from the 2015 general elections. In 2015, the use of the SCR was provided in INEC’s Directives, Guidelines and Manuals and there was nothing in the Electoral Act on the SCR. Many petitioners had alleged substantial non-compliance with the provisions of the Electoral Act because the SCR was not used in the accreditation process. The petitioners averred that election results should be set aside on the basis of the failure to use the SCR. This was the case in Edward Nkwegu Okereke v Nweze David Umahi (SC. 1004/2015); Udom Gabriel Emmanuel v Umana Okon Umana (SC.1/2016); Okezie Victor Ikpeazu v Alex Otti & 3 Ors (2016, 8 NWLR, Part 1513) and Wike Ezenwo Nyesom v Dakuku Adol Peterside & Ors, etc.

The Supreme Court reasoned as follows in Wike Ezenwo Nyesom v Dakuku Adol Peterside & Others.: “The introduction of the card reader is certainly a welcome development in the electoral process. Although it is meant to improve on the credibility of those accredited to vote so as to check the incidence of rigging, it is yet to be made part of the Electoral Act. Section 138 (2) of the Electoral Act envisages a situation where the Electoral Commission issues instructions or guidelines which are not carried out. The failure of the card reader machine or failure to use it for the accreditation of voters cannot invalidate the election. The section stipulates as follows- An act or omission which may be contrary to the instruction or directive of the Commission or an officer appointed for the purpose of an election but which is not contrary to the provisions of this Act shall not of itself be a ground for questioning the election”.Thus, the Supreme Court held that INEC’s directives on the use of the SCR has not invalidated the use of the manual accreditation process which is fraught with fraud.

Following these decisions, some learned commentators criticised the Supreme Court as aiding and abetting rigging through its interpretation of the status of the SCR. Professor Itse Sagay in, “Farewell to Election Petitions”, stated that the thrust of the decisions constitutes a devastating blow on democracy. The National Assembly in its wisdom now seeks to correct this mischief so that elections will truly reflect the will of the electorate. Starting from the first quarter in the year, when the bill was submitted to President, he found a number of excuses including the issue of the sequence of the elections, especially as to whether the legislature had the power to determine the sequence of elections. He refused assent and returned the bill to the legislature, who in good faith amended the sections that the President complained about. When it was submitted a second time, the President also found a battery of excuses to decline assent. Again, the National Assembly in good faith, believing they were dealing with genuine reasons advanced by the President went back to work to reflect his position. The National Assembly submitted the bill a third time and the President found another set of excuses. The lawmakers obliged him with another round of amendment and tinkering and finally returned the bill to him last month. For the fourth and final time, the President found yet another set of excuses to decline assent.

From a dispassionate analysis, what has come out of these four submissions by the National Assembly and the four times’ refusal to grant assent is that the President does not intend to see the Electoral Act 2010 further amended. He was simply looking for excuses to further that agenda. While the National Assembly was operating in good faith in furtherance of its power to make laws for the peace, order and good government of the country, there was a debilitating fixation by the President to stand on the old ground. In retrospect, none of the grounds that the President had relied on to refuse assent had anything to do with democratic consolidation but the furtherance of a personal agenda to win the 2019 presidential election at all cost.

According to data released by an online newspaper and verified from the report available on INEC’s website titled, “Smart Card Reader Accreditation: Backend Transmission System – 2015 Presidential & National Assembly Elections”, at page 16: “Of the 31,746,490 accredited voters in the election, 13,536,311, representing 42.6 per cent of voters, voted without biometric accreditation.Out of this number, 10,184,720 votes are from states won by Buhari and 3,351,591 votes came from states won by Jonathan, the Peoples Democratic Party candidate, representing 75 per cent and 25 per cent of accredited voters respectively”. This revelation raises the fear in many Nigerians about the intention of the President and the ruling party against the background of the fact that the APC now supports the President’s refusal to give assent to the bill. Is there an intention to repeat the 2015 experience so that the courts will not rely on the SCR since the authority for its use will still be founded on INEC’s directives and manuals and not the Electoral Act?

In conclusion, Nigeria must make progress, whatever disagreements between the executive and the legislature and the political parties should not lead Nigeria to stagnation or retrogression in our democracy. Even if the President disagrees with every other thing, he should liaise with the legislature to enthrone free, fair and credible elections through the smart card reader. We have no option than to make progress.