AN X-RAY ON THE PROVISIONS OF THE ELECTORAL ACT 2022

By Chisom Nwadike

1.0 INTRODUCTION

Amidst the growing concern over the passage of the Electoral Bill, President Muhammad Buhari on Friday the 25^th of February signed the bill into law following unending weeks of pensive negotiations with the members of the National Assembly and Civil Societies in Nigeria. It could be recalled that since our return to democracy in 1999, the Electoral Act has been amended four (4) times in 2010, 2011(twice) and 2015 respectively. Following the passage of the Electoral Bill into law, there have been jubilations in the country even among opposition parties saying that the Act would positively revolutionize the electoral process in Nigeria. Furthermore, the Act is coming less than a year to the highly anticipated 2023 general elections which reassure many Nigerians that indeed change is coming. In this article, I will be taking a brief analysis of the salient and praiseworthy provisions of the new Electoral Act 2022 paramount among the provisions which is the introduction of electronic transmission of votes.

1.1 THE PROVISIONS OF THE NEW ELECTORAL ACT 2022

Section 3 (3) states that funds for general elections must be released at least one year before the election. This is highly commendable as there was no statutory time stipulated under the Old Act. Furthermore, it will ensure that the Independent National Electoral Commission (INEC) make early preparations for materials needed before the general election. In the past, INEC has always complained of late funding, it is hoped that with the passage of the Act, this complaint will be an issue of the pass.

Section 29(1) of the Act stipulates that parties and aspirants must conduct primaries and submit their list of candidates at least 180 days before the general elections. This is highly commendable as opposed to the timeframe of 60 days which was provided under Section 31(1) under the Old Act. This would instantaneously curb the imposition of candidates by selfish politicians and elements within a political party who will always shift primaries to the point where it becomes tiring for voters to make an informed decision. In addition, it gives the court ample time to decide on pre-election matters instituted by complaining parties who are dissatisfied with the conduct of the primaries and the choice of candidates.

Section 34 gives political parties the power to conduct a primary election within 14 days to replace a dead candidate who dies during an election. This is highly commendable given the fact that under Section 33 of the old Act a political party could not substitute or change a dead candidate. Furthermore, this provision is in line with the judicial pronouncement in Faleke v INEC (2016) 8 NWLR (Pt. 1543) S.C 61 which allowed a political party to substitute a dead candidate and it further lays to rest the debate over whether votes cast at the election belongs to a political party or to a candidate. However, the cogent question that remains is what does the Act envisages as during an election, is it during a primary election or a general election? It is my opinion that what is meant by during an election is the general election.

Section 47 and 50 give legislative backing for smart card readers and any voter accreditation technology that INEC deploys. In addition, it states that INEC has the mandate to deploy electronic transmission of votes. This is a great achievement for Nigerians who have been glamouring for electronic voting during the elections and a step in the right direction. While this is not what stakeholders had in mind as regards electronic voting, we are quite optimistic that there will be a progressive and gradual transition of the electioneering process into an electronic system.

Section 51 states that the total number of accredited voters will become a factor in determining overvoting at election tribunals. This is a highly commendable provision[1] as it seeks to bring the Act in line with judicial pronouncements on the use of the total number of accredited voters as a determinant factor for proving over voting as seen in the cases of Haruna v Modibbo (2004) 16 NWLR (Pt 900) 487 and Kalogo v Kalogo (1999) 6 NWLR (Pt 606) 639 and Audu v INEC (No.2) (2010) 13 NWLR (Pt.1212). Section 54 (2) makes provision for people with disabilities and special needs. It states among other things the assisting of the disabled at polling units and providing communication materials like braille, electronic devices and so on and if possible offsite voting in appropriate circumstances. This too is a highly commendable provision as there was no such provision for people with disabilities under the Old Act. Furthermore, it would make a lot of people with disabilities exercise their civic duties since they know they are protected under the law. It is my opinion that INEC should be ready to carter and make appropriate arrangements to that effect as early preparations are key to giving effect to this provision.

Section 65 stipulates that the Independent National Electoral Commission (INEC) can review results declared under duress. This is also highly commendable and a win for democracy as it seeks to protect the Commission and its officials from bad politicians who use hoodlums and corrupt law enforcement agencies to strong-arm INEC officials into doing their bidding. However, the issue over what will constitute duress may lead to unending litigations in court. It is my belief that the court is up to the task in dispelling the issues judiciously as it has done in the past.

Section 94 allows for early commencement of the campaign season. This provision extends the period for the campaign from 90 days to 180 days to ensure that candidates have ample time to meet and discuss with Nigerians and to ensure that Nigerians are familiar with their candidates. However, all campaigns on print and electronic media must end within 24 hours preceding or on the day of the election.[2]

Also, Section 136(4) states that all rulings on objections to jurisdictions of the Court shall be taken at the time of giving final judgment. This is a highly uncommendable provision because from practical application what happens when the court declines jurisdiction and has given judgment on the matter. What will happen to the judgement given in this case?

1.2 THE CONSTITUTIONALITY OF SECTION 84 (12) VIZ-A-VIZ THE RIGHT TO VOTE

The constitutionality or otherwise of Section 84 (12) of the new Electoral Act has been subject to debate since the passage of the new law. So, what does Section 84 (12) say? In a nutshell, the provision states that a political appointee should not be allowed to vote or be voted for at conventions or congresses of political parties. This is a highly uncommendable provision, and it should be expunged from the Act as it seeks to disenfranchise political appointees (who are citizens like you and I) from exercising their constitutional and civic duties. The President in his charismatic leadership had sent a letter to the Senate requesting the amendment of the provision which has been obliged. It is hoped that in the coming months before the elections, the provision will be reworded to protect political appointees from disenfranchisement. However, until the Act is amended and regardless of our opinions, Section 84(12) remains the law.

1.3 OTHER NOTABLE CHANGES

Other notable changes in the Electoral Act, 2022 includes Section 29(5) which restricts the right to complain about the false information in a candidate’s affidavit or documents submitted to INEC to aspirants who participated in the primary election.[3]

Section 29(6) states that a court can only disqualify a candidate for giving false information in his document if such information as contained relates to the constitutional requirement of his office.[4]

In addition, Section 82(5) states that the failure of a political party to notify INEC of its congress or convention shall render such congress null and void and prevent them from fielding such candidates at an election.[5] There is no such provision under the Old Act.[6]

Section 134(1) states that a complaint on unlawful exclusion shall not be a ground for overturning an election.[7]This was contained under Section 138 (1)(d) under the Old Act.

Section 137 states that it is no longer necessary to call oral evidence in order to show non-compliance with the provision of the Act, the Certified True Copy (CTC) is sufficient to show non-compliance.

Section 135(3) states that if there is a mistake or inconsistency in the date as presented by INEC, this will not be a ground to overturn an election.

Lastly, Section 134(3) states that on a petition of whether a person is qualified to contest for an election, such petition must be limited on his qualification or disqualification from contesting under the relevant 1999 Constitution.[8]

2.0 CONCLUSION

The New Electoral Act has been described by all as the biggest political victory in Nigeria. While this may hold true, the practical application of the new Act would go a long way in proving this statement totally true. In the electronic transmission of results and voting accreditation using smart cards, INEC would have to employ efficient technologies given that in the past election the use of the technology has proved worrisome to a lot of Nigerians especially those in the rural areas. In addition, given the issue of data networks in transmitting results in rural areas, there needs to be some sort of pre-testing and re-testing by INEC before the final deployment of any technology. It is hoped that on its part, Nigerians would make certain behavioural changes like actually voting during elections to ensure that we have a successful, free and fair elections

[1] There was no such provision under Section 53 of the Old Act

[2] Section 94 of the Electoral Act 2022. It was also provided for under section 101 of the Old Act

[3] The Federal High Court has been conferred with exclusive jurisdiction to decide on compliant that the information contained in such affidavit or documents are false. See Section 29(5)

[4] See the case of Ikpeazu v Ogah (2017) 6 NWLR (pt. 1562) 439

[5] Section 84(13) also states that failure to follow the provisions of this Act by a political party in the conduct of its election shall not be included in the election

[6] Section 85 under the Old Act

[7] The Uzodinma’s case comes to mind.

[8] There was no such provision under Section 138(1) under the Old Act.

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