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Electoral reform and new constitutional order

By OMONIYI SALAUDEEN

the more things change, they say, the more they remain the same. So it is for Nigeria’s Electoral Act, which has been amended times without number since the advent of the present democratic dispensation all in a bid to achieve a perfect electoral process. It has, indeed, become a norm for one administration after the other to initiate fresh reform of the electoral process since the enactment of the 2003 Electoral Act. The continuous attempt to reform the process is borne out of the irregularities that have always characterized elections in Nigeria. These include illegal printing of ballot papers, voter cards, illegal compilation of voter register, compromised voter register, falsification of election results, poor logistics, among others. The latest amendment to the 2010 Electoral Act is the recent move by the senate to resolve controversy as to who succeeds a governorship or presidential candidate who dies before the announcement of the result of an election. The proposed amendment followed the sudden death of the governorship candidate of the All Progressives Congress (APC), Abubakar Audu, at the November 21, 2015 governorship election in Kogi State before the announcement of the election result. The deceased’s running mate, James Faleke, who believed he must automatically inherit the votes, had attempted to claim the mandate of the APC. But the party took a detour and settled for a fresh candidate.  Faleke subsequently took up the case and fought the battle from the lower court up to the Supreme Court but lost.

The bill, which is the sixth amendment to the 2010 Electoral Act, provides for the conduct of a fresh primary within 14 days to choose a new candidate. It also empowers that the Independent National Electoral Commission (INEC) to suspend the conduct of a new election for 21 days when the death of a candidate is recorded after the commencement of an election and before the announcement of result. Section 3 of the new bill reads in part: “If after the commencement of poll and before the announcement of the final result and declaration of a winner, a nominated candidate dies, (a) the Commission shall, being satisfied of the fact of the death, suspend the election for a period not exceeding 21 days; (b) the political party whose candidate died may, if it intends to continue to participate in the election, conduct a fresh direct primary within 14 days of the death of its candidate and submit a new candidate to the Commission to replace the dead candidate; and (c) subject to paragraphs (a) and (b) of this subsection, the Commission shall continue with the election, announce the final result and declare a winner.”
The bill also provides a legal support for the use of manual voting in situations where card readers malfunction. Although manual option has always been adopted as an alternative to the malfunctioning of card readers, the new provision gives legal backing to manual voting. According to the new amendment, once the presiding officer at the election is convinced that the intending voter is the owner of the voter card, he should go ahead to accredit him.
In its desire to improve the management of the electoral system in Nigeria, the 7th senate had made similar amendment to the 2010 Electoral Act. But the move naturally spurred the curiosity of the public, when the National Assembly hurriedly passed the bill on March 10, 2015 and received presidential assent on March 26, 2015, two days to the historic March 28 presidential election. The amendment provides for tenure of Office of Secretary of the Independent National Electoral Commission (INEC); provides N500, 000 Penalty or 12 months imprisonment or both for any polling officer, political party or party agent who conspires to falsify election results; empowers INEC to determine the procedure for voting at an election, thereby removing the previous prohibition of electronic voting.  The passage of the Bill was sequel to the presentation of the report of the Joint Committees on the Review of the 1999 Constitution and INEC on amendment of the Electoral Act 2010. Since then, nothing has been heard of the new bill.
Prior to these piecemeal amendments to the Electoral Act, the Electoral Reform Committee (ERC) headed by former Chief Justice of Nigeria (CJN), Justice Muhammadu Uwais (rted), which was set up by the late President Musa Yar’Adua to review the electoral system had undertaken the most comprehensive electoral reform process in recent times. Key among its far reaching recommendations are the unbundling of INEC, procedure for appointment and removal of members of the Commission, dates and sequence of elections, security of election materials. Many stakeholders have blamed the perceived imperfection in the present electoral system on the neglect of Uwais report.
The same reason also accounts for the current nonchalant attitude of Nigerians to the new reform initiative of President Muhammadu Buhari, who recently constituted a 24-man Electoral Reform Committee headed by a former Senate President, Dr. Ken Nnamani. The objective of the committee, according to the Attorney General of the Federation and Minister of Justice, Abubakar Malami (SAN), is to “to ensure an electoral process that would meet the global standard and satisfy the desire of the electorate. “The mandate of the committee is to review electoral environment, laws and experiences from recent elections conducted in Nigeria and make recommendations to strengthen and achieve the conduct of free and fair elections in Nigeria, Malami stated.
But Second Republic civilian governor of the old Kaduna State, Alhaji Balarabe Musa, dismissed the attempts by the executive and legislature to tinker with the electoral act as a mere waste of time. In telephone interview with Sunday Sun he said: “It is a waste of time because they are not addressing the root of the matter. The root of the matter is to have free, fair and transparent election leading to emergence of a legitimate government. In Nigeria today, the deciding factor in politics and election is money. What is required now is a system of free, fair and transparent election leading to emergence of a legitimate government. It is the fear of this that is causing all these attempts to reform the electoral system. Both the legislature and the executive are avoiding this to protect their interests. They are trying to protect a system whereby the deciding factor in politics and election is money. There is no question of reform; you can’t reform what is bad. They should let us debate the type of system that will guarantee free, fair and transparent election.”
In another breadth, Senator Anthony Adeniyi, who represented Ekiti South in the last National Assembly, said the senate’s move to amend the electoral act was in order. “I support the move to amend the electoral act. The essence of the amendments is to address situations that are not contemplated by human beings. So, there is nothing wrong in amending the law, if the intention is to resolve the lacuna,” he said.
He, however, urged the lawmakers to reduce the number of days assigned to INEC to suspend the election when a candidate dies from 21 days to seven days. “The only thing I think may cause difficulty is the issue of 21 days assigned to the INEC to suspend an election after the death of a contestant. In my opinion, 21 days is too long. It will box the INEC and the parties to a corner in the sense that they will need to conclude an election before the termination of the tenure of the incumbent governor or president. It should be reduced to seven days within which the party should conduct the primary and submit the name of another candidate. For me, seven days should be enough to elect a new candidate.  The party can do a guided primary or use the result of the previous primary to produce a new candidate,” he concluded.
The same controversy has also been trailing the ongoing constitution amendment which is the fourth alteration to the 1999 constitution.  According to the lawmakers, it has become imperative to go through another round of review due to the security, economic and socio-political challenges confronting the country. The bill for an amendment requires the two-thirds majority of each Chamber of the National Assembly as well as the approval of two-thirds of the states Assembly to pass. The full draft of the constitution amendment bill is expected to be ready for president’s assent after harmonisation with the House of Representatives on grey areas.
In an attempt to whittle down the powers of the presidency, the Senate has moved certain items from the Exclusive Legislative List to the Concurrent List. Chairman, Constitution Review Committee, Senator Ike Ekweremadu, said the move was to give more powers to the federating units. Under the new bill, Pensions, prisons, railways, stamp duties, wages, healthcare, housing, road safety, land and agriculture are to come under the Concurrent List.
With these alterations, there are fears that the president may decline to assent to the amended constitution.  The Seventh National Assembly had embarked on a similar exercise, but former President Goodluck Jonathan, refused to sign it into law. Instead, the then minister of Justice and Attorney-General of the Federation, Mohammed Adoke, approached the Supreme Court to stop the lawmakers from vetoing the president.
Senator Olabiyi Durojaye, speaking with Sunday Sun, though agreed that periodic review of the constitution may be necessary depending on the changing circumstances, dismissed the current effort as a waste of time, saying “what we need now is a completely new constitution.” However, Senator Adeniyi, expressing a different view, said: “Nothing is wrong with the move to review the constitution.”
The amendment bill, which has been referred to the Senate Committee on Special Duties for processing, will be subjected to further debate when the committee’s report is ready in three week’s time.

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