AN APPRAISAL OF THE LEGAL FRAMEWORK OF ELECTION ADMINISTRATION IN NIGERIA

 Abstract:

In every nation where democracy is being practiced, the importance of a credible election for the socio, economic and political development of such nation cannot be overemphasized. Prominent among the requirement for a free, fair and credible elections is the legal framework which regulates generally administration of election including the establishment of an electoral management body. This paper identifies and elucidates the provisions of the 1999 Constitution, which is the grundnorm of all the laws in Nigeria, relating to electoral matters in Nigeria.

It examines international treaties and conventions with a view to implementing same in our courts, the Nigerian laws and guidelines on Election matters and its various roles in election proceedings. It identifies some case laws and how the judgments of these cases have become laid down principles of law till date. Lastly, it analyses the recent amendment to the Electoral Act with a view to identifying the lapses in the current legal framework as at today and proffer recommendations where necessary.

Introduction:

Legal framework for the administration of election in Nigeria comprises of the Constitution of the Federal Republic of Nigeria 1999 as amended; the Electoral Act 2010 as amended and other laws regulating the conduct of institutions and agencies involved in elections.[1] Before the amendment of the 1999 Constitution and prior to the repeal of the Electoral Act 2006 by the Electoral Act 2010, there were clamors for a reform of the Nigerian electoral system and the need to address the shortcomings of the legal framework that was subsisting as at that time with a view to addressing the problem of delay which was bedeviling and afflicting administration of justice in hearing of election petition.

This led to setting up of the Uwais Electoral Reform Committee. The extant legal framework of administration of election in Nigeria was the product of legislative intervention pursuant to part of the recommendations of the Electoral Reform Committee.

[1] 1Uwais Electoral Reform Committee Report, in The Constitution Vol. 9, No. 2, June 2009 pp. 99-100

 

Some International Instruments Creating Electoral Rights:   

Before we look into the Nigerian legal framework, this paper seeks to briefly consider some instruments that are established principles of political rights and freedoms relating to elections and which are contained in declarations, conventions, protocols and other international instruments adopted by the United Nations, African Union, Economic Community of West African States and the Commonwealth.

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) provides that all appropriate measures shall be taken to ensure to women, equal terms with men without any discrimination:

(a) The right to vote in all elections and be eligible for election to all publicly elected bodies;

(b) The right to vote in all public referenda;

(c) The right to hold public office and to exercise all public functions. Such rights shall be guaranteed by legislation.[1]

States parties shall take all appropriate measures to eliminate discrimination against women in the political and public life of the country and, in particular, shall ensure to women, on equal terms with men, the right: (a)  To vote in all elections and public referenda and to be eligible for election to all publicly elected bodies; (b) To participate in the formulation of government policy and the implementation thereof and to hold public office and perform all public functions at all levels of government; (c) To participate in non-governmental organizations and associations concerned with the public and political life of the country.[2]

[1] Art. 4, ‘Convention on the Elimination of All Forms of Discrimination Against Women’ available online at http://www.ohchr.org/EN/Professionallnterest/Pages/CEDAW.aspx accessed on 4 September, 2015.

[2] Art. 7, ibid

 

The Universal Declaration of Human Rights:

It is provided here that everyone has the right to freedom of peaceful assembly and association, and also, no one may be compelled to belong to an association.[1] In addition to this, everyone has the right to take part in the government of his country, directly or through freely chosen representatives.

Everyone also has the right of equal access of public service in his country. Also, the will of the people shall be basis of the authority of government: this will shall be expressed in genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

Convention on the Political Rights of Women:

 Women shall be entitled to vote in all elections on equal terms with men, without any discrimination.[2] Women shall be eligible for election to all publicly elected bodies, established by national law, on equal terms with men, without any discrimination.[3] Women shall be entitled to hold public office and to exercise all public functions, established by national law, on equal terms with men, without any discrimination.[4]

African Commission on Human and Peoples’ Rights:

(1) Every citizen shall have the right to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law, secondly, every citizen shall have the right of equal access to the public service of the country and thirdly, every individual shall have the right of access to public property and services in strict equality of all persons before the law.[5]

[1] Art.20 ‘The Universal Declaration of Human Rights’ available online at http://www.un.org/en/documents/udh accessed on 4 September, 2015.

[2] Art. 1‘Convention on the Political Rights of Women, 193 U.N.T.S. 135, entered into force July 7, 1954’ available   online at http://www1.umn.edu/humanrts/instree/e2cprw.htm accessed on 4 September, 2015.

[3] Art. 2, ibid

[4] Art. 3, ibid

[5] Art. 13 ‘African Commission on Human and Peoples’ Rights’ available online at   http://www.achpr.org/instrumennts/achpr/ accessed on 4 September, 2015

 

International Covenant on Civil and Political Rights:

The right of peaceful assembly shall be recognized and no restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interest of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others.[1]

It also provides that;

(1) Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

(2) No restrictions may be placed on the exercise of this right other than those which are prescribed by law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in their exercise of this right.

(3) Nothing in this article shall authorize States Parties to the International Labor Organization Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in that Convention.[2]

Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions: (a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors; (c) To have access, on general terms of equality, to public service in his country.

[1] Art. 21, ‘International Covenant on Civil and Political Rights’ available online at  http://www.ohchr.org/EN/Professionallnterest/Pages/CCPR.aspx accessed on 4 September, 2015

[2] Art. 22, ibid

 

It is important to examine at this point what effects (if any), these international conventions and treaties have on Nigerian Elections. These treaties have been ratified by Nigeria, however it is not enough for a sovereign state to ratify a treaty in the international community framework, it is more important for such state to adopt the international treaty into her domestic legal system, integrate the treaty into her national standard and make it domestic law.

Since these treaties are not domesticated, they are not national law and therefore cannot be employed in defense of cases involving their violations before courts of law in the country neither can they be used for advocacy of rights within the country. Further to this, violators, maybe state institutions or individuals cannot be held accountable for any international treaty that has not been domesticated.

Section 12 (1) of the Constitution of the Federal Republic of Nigeria 1999 talks about implementation of treaties and states that “No treaty between the Federation and other country shall have the force of law except to the extent to which any such treaty has been enacted into law by the National Assembly”, this further strengthens the fact that a treaty, no matter how salient the issue it addresses is, is not applicable in the nation’s domestic legal system until it is domesticated by the National Assembly.

Therefore, if material electoral matters are committed to salient issues at international level, and treaties are signed and ratified by Nigeria, such treaty should be subjected to domestication through the National Assembly in order to allow Nigerians at all levels benefit from international activities of the government.

In other words, as much as the above mentioned international treaties are being ratified by Nigeria, they have no binding effect on our Courts and as such, a person will not be held accountable for a violation of the provisions of these treaties.

The provisions of some of these treaties can however be seen and perceived in some of our local legislations. For example the provisions of some of the treaties that relates to the right of individuals to participate freely in the government of his country, either directly or through freely chosen representatives in accordance with the provisions of the law.

ADMINISTRATION OF NIGERIA LAWS ON ELECTION MATTERS

The 1999 Constitution (as amended) 

Issues relating to electoral process such as the electoral body in charge of organizing elections, the courts and Tribunals to determine complaints arising from the conduct of elections have their foundations in the nation’s Constitution. The Constitution whether written or unwritten, rigid or flexible, unitary or federal, and so forth has two basic natures namely- It is an expression of the will or desires of the people who make up the state or country; and it is a social contract between the government as an entity and the people on the one hand.

It is a contract between those who hold public offices and the people, and it is also a social contract between and among the various ethnic peoples who make up the state or country.[1] The Constitution is the supreme and most important law of the country. Section 1 (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) makes it clear that if any other law is inconsistent with the provisions of the Constitution that other law shall be void to the extent of the inconsistency. The courts have upheld that section in countless decisions.[2] For this reason alone any law dealing with elections that contradicts the provision of the Constitution will be of no effect. The Constitution also states clearly that the Government of Nigeria or any part thereof shall not be governed or controlled by any person or group of persons except in accordance with the provisions of the Constitution.

In other words, no one can occupy elective offices at the local, state or federal level unless he or she has been elected in accordance with the provision of the Constitution or any law made in accordance with the Constitution.  The Constitution prescribes certain qualifications that persons vying for some offices recognized or created by the Constitution must meet before they can participate in elections in those offices. In a rather inelegant fashion, in my opinion, the Constitution lists in separate sections what it refers to as disqualifications and qualifications as the end result of the two types of provisions is to prescribe eligibility criteria[3].

With respect to electoral matters, the relevant items of the Second Schedule dealing with legislative powers are items 22 of Part 1[4], Item 22 of the Exclusive Legislative List is ‘election to the offices of President and Vice President or Governor and Deputy Governor and any other office to which a person may be elected under this Constitution, excluding election to a local government council or any office in such council’. Items 11 and 12 of the Concurrent List are respectively as follows:

[1] Ese, Malemi (2006), The Nigerian Constitutional Law, Princeton Publishing Co, Lagos pp.12 & 15

[2] See NPA v. Eyamba (2005) 12 NWLR (Pt. 939) 409 at p. 443

[3]See sections 106 & 107 for membership of House of Assembly; Sections 65 & 66 for membership of National     Assembly; Sections 177 & 182 for qualifications and disqualifications for election to the office of Governor of a      State and sections 131 and 137 for qualifications and disqualifications for election to the office of President of     the Federation. 4Exclusive Legislative List and 11 & 12 of Part II Concurrent Legislative List

[4] Exclusive Legislative List and 11 & 12 of Part II Concurrent Legislative List

-‘11. The National Assembly may make laws for the Federation with respect to the registration of voters and the procedure regulating elections to a local government council.

-12. Nothing in paragraph 11 hereof shall preclude a House of Assembly from making laws with respect to election to a local government council in addition to but not inconsistent with any law made by the National Assembly.’

Electoral Act 2010 (as amended)

In line with its constitutional power to make laws for the peace, order and good government of the Federation or any part thereof with respect to item 22 under the Exclusive Legislative List,[1] the National Assembly enacted the Electoral Act 2010.[2] The Electoral Act 2010 is not the first of its kind.

It was built on the provisions of the Electoral Act 2006, which it repealed. Its provisions made some marginal improvements over and above the 2006 Act, but it was definitely not sufficient enough to bring about an overhaul of the electoral system in the terms recommended by the Uwais panel.[3] This was not totally unexpected. It is against this background that the Electoral Act 2010 (as amended), was passed by the National Assembly, after much deliberation and debate.

The key provisions of the Act reflect government’s attitude towards the recommendations of the Uwais Committee. Expectedly, the recommendations of the Uwais Committee that were not reflected by the government, including the one on independent candidacy, were not reflected in the Act. Also, some of the seemingly novel provisions of the Act, such as the one on continuous registration, the oath of neutrality by election officials, prohibition of double nomination, among others, were merely lifted from the 2006 Act; the provisions of which are same in many material respects as the new Act.

There are uniquely novel provisions however. Of note in this regard is the provision of the Electoral Act 2010 which prohibits substitution of candidates by political parties except in cases of death or self-withdrawal.[4] The bulk of the provisions of the Electoral Act 2010 relates to procedural issues that were already covered by the Electoral Act 2006, which was repealed by the new Act.

The current Act is arranged in nine parts, with 152 sections and three schedules. The Act repeals both the Electoral Act 2006 and the INEC Act. It re-establishes INEC, an INEC Fund, and guarantees its independence. The functions, powers, revenue base and other matters connected with INEC and its staff remain essentially the same as in the repealed 2006 Act.

It is pertinent to note at this juncture, that provisions of the 2010 Act in respect of the registration of voters, the provisions of registration officials and the creation of offences were more or less repetitions of the 2006 Act with some juggling of figures.  As for the procedure for election, the only major change was the prescription of the order of the election in section 25(1) of the 2010 Act.

This provision is not only self-seeking as it was designed to serve the interests of the serving members of the National Assembly, it robs INEC of the unfettered power which it had under section 26 of the Electoral Act 2006 to determine the dates of elections. The other novel provision, which is commendable, is the provision of section 33 which bars political parties from substituting candidates after submission. This is to prevent the kind of ugly incident which Alabi[5] observes made it possible for voters not to know the candidates up to the point of voting.

Ironically, the procedure of voter accreditation before the actual voting commences, for which the INEC was commended in 2011, even though not a novelty in Nigeria’s electoral history, is not officially provided for under the Act but was adopted, perhaps, in pursuance of the powers of the Commission[6] to fix the day and hours of polls.  In flagrant disregard for the recommendations of the Uwais Committee, but in line with the provisions of the 1999 Constitution, the Electoral Act 2010 vests the power to register and regulate the activities of political parties in the electoral commission.

This was a consequence of the inability of the government to demonstrate sufficient political will to implement those recommendations of the ERC report which it purported to accept as far back as 2009. The same could be said of the refusal to create an Electoral Offences Commission, notwithstanding the creation of several offences in relation to the registration of voters and their conduct of elections.[7] In essence, the Uwais Committee’s recommendation for unbundling INEC, which the government accepted, was not implemented, years after the recommendation was made and accepted.

The 2010 Act like the repealed 2006 Act, stipulates a continuous voters’ registration system. In section 10(2), an applicant for registration under the continuous registration system shall appear in person at the registration venue with proof of identity, age and nationality. Apart from preventing registration by proxy, the innovation helps to establish the true identity of voters and prevent voting by non-human objects as witnessed in the 2007 elections in Ondo State.

Other adjustments to the contents of the repealed Act were designed to prevent frustration associated with litigations arising from the conduct of elections, as well as enforcement of internal democracy in selecting party candidates for election.

Essentially, these changes were meant to ensure more credibility and reduce acrimonious intra-party crises often associated with the choice of party’s flag bearers. Aside from this, the Act imposes stiffer punishments for culprits engaged in the buying and selling of voters’ cards.

On the whole, while the Electoral Act 2010 contains a number of provisions that seek to enhance the conduct of free and fair elections, these provisions were mostly cosmetic and are not far-reaching enough to bring about the desired reform of the entire electoral system. The Act merely seeks to make some marginal changes within the limits permissible under the existing constitutional framework.

Such changes in the texts of the Constitution that are necessary for tackling the ills of the electoral/political system were not made by the National Assembly. It is therefore not surprising that the maladies of the previous years, which had robbed Nigeria of the needed credibility for democratic consolidation, were repealed in various forms and different degree, before, during and after the April 2011 elections.

[1]Item 22 is on election to the offices of President and Vice-President or Governor and Deputy Governor and any      other office to which a person may be elected under the 1999 Constitution (as amended), excluding election to a local government council or any office in such council. See Second Schedule, Part 1 of 1999 Constitution (as amended)

[2] Laws of Federation of Nigeria 2011 

[3] Alabi, M. O. A & Omololu, O. T. (2012),

[4] ‘ Uwais Report, Electoral Act 2010, and the Future of Democratic    Elections in Nigeria’ inLayonu, A. I. &Adekunbi, A. A. O. (eds.) Reflections on the  Nigerian Electoral    System First Law Concept, Ibadan pp. 207-236 4See Section 33 which provides that a political party shall not be allowed to change or substitute its candidate whose name has been submitted pursuant to section 31 of this Act, except in the case of death or withdrawal by the candidate

[5] Op cit n.18 above

[6] See section 46

[7] See sections 117-132

Case Law:  

Case law refers to that body of principles and rules of law which, over the years, have been formulated or pronounced upon by the courts as governing specific legal situations. This assertion seems to run contrary to the general impression that judges do not make laws but simply apply them as and when the need arises.

The primary duty of making laws is that of the legislature and judges do not go about making laws in the same manner and with the same ease as legislators do. But they are not altogether detached from the law-making process. A judge that is confronted with a legal problem does not have to resign helplessly where the established laws are inadequate in resolving the problem.

It is a cardinal maxim of our law that where there is a wrong there must be a remedy.[1] Judges are, therefore, encouraged to formulate fresh rules of law or to extend the existing ones to deal with novel cases.[2] By so doing, they add to the corpus of existing laws through their judicial pronouncements. This law making function of the courts is sustained by the operation of the doctrine of judicial precedent.[3]

At present, the decisions of the Nigerian courts cannot but constitute the least creative source of law in the country. The reason why that should be so is that the enactments which create the courts and give them their powers restrict them to applying only two types of law apart from rules contained in local statutes. The first is the received law, which is expressly declared to be the law of England.[4] That, of course, does not prevent a body of Nigerian case law growing up around this received law.

This has indeed occurred, and Nigerian decisions upon the rules of English law are cited by the courts almost as frequently as those of the English judges. But it does prevent Nigerian common law and equity striking off on their own, and in places departing from the pattern of development in England.[5]

Constitutionally, the responsibility of the court is to interpret laws and apply them to facts of the case before the court. Decisions reached as a result of the interpretation by superior courts of records have the force of law and sanction like any other law made by legislature. For example, an interpretation on a point of law by the Supreme Court of this country is law.

Such pronouncements of courts of records as contained in our various law reports are laws, which can be referred to and applied, in subsequent cases, if the facts and circumstances are impari-material. Under common law, the method of applying the ratio decidendi of previous cases to the case in hand is called stare decisis (let what was previously settled or decided not be disrupted or altered). Nigeria now has a fairly developed electoral jurisprudence which has been well documented.[6]

Case law is a very important source of electoral law. This paper will make mention of cases where their judgments have backed up basic principles of law under the Electoral Act 2010 (as amended).

In the case of INEC v. Peterside[7], the court stated that by virtue of Section 138(1) of the Electoral Act, 2010(as amended), the ground on which an election may be questioned are

  • -That the person whose election was questioned was, at the time of the election, not qualified to contest the election
  • -That the election was invalid by reason of corrupt practices or non-compliance with the provisions of the Act
  • -That the respondent was not duly elected by majority of lawful votes cast at the election; or
  • -That the petitioner or its candidate was validly nominated but was unlawfully excluded from the election.

In this case, the 1st and 2nd respondents challenged the election and return of the 3rd respondent mainly on grounds (b) & (c) above. However, the 1st and 2nd respondents made no attempt to prove their case on the ground that the 3rd respondent was duly elected by majority of lawful votes cast at the election.

Instead, the 1st and 2nd respondents relied on the ground that the election was invalid because the appellant’s officials failed to comply with the appellant’s order to them to use smart card readers for accreditation of voters for the election. But the 1st and 2nd respondents failed to relate the ground for their petition to any provision of the Electoral Act to show that the ground qualities as non-compliance with the provisions of the Act. In the circumstances, the 1st and 2nd respondent failed to prove their case at the tribunal that the failure to use Smart Card Readers for accreditation of voters at the election had the effect of nullifying the entire election in Rivers State.

It can be deduced from the above, that the judiciary employs the very important provision of the Electoral Act as it relates to the grounds upon which an election petition can be brought. The above mentioned case has helped to throw more light to the provisions of the Electoral Act which stipulates the only grounds upon which an election petition can be brought before the appropriate tribunal in Nigeria.

Flowing from the above, it is worthy of note that an election cannot be questioned on ground of non-compliance with instruction of INEC or its official. In the same case of INEC v. Peterside[8], it was stated that by virtue of Section 138(2) of the Electoral Act, 2010 as amended, an act or omission which may be contrary to an instruction or directive of the INEC or of an official appointed for the purpose of the election but which is not contrary to the provision of the Act shall not of itself be a ground for questioning the election.

In effect, an infraction of a directive of the commission which itself is not contrary to the provisions of the Electoral Act is not a ground for questioning an election. In this case, the appellant’s officials complied with Section 49(1) of the Electoral Act on the accreditation of voters for the election, but may have breached the directive of the appellant on the use of Smart Card Readers. In the circumstance, the act of the appellant’s officials did not amount to non-compliance with the provisions of the Electoral Act, 2010(as amended) that rendered the election as invalid as asserted by the 1st and 2nd respondents.

Electoral Guidelines Section 153 of the Electoral Act, 2010 (as amended) gives power to Independent National Electoral Commission (INEC) to issue regulations, guidelines or manuals for the purpose of giving effect to the provisions of the Electoral Act and for its administration thereof. Consequently, the Commission usually issues guidelines and regulations for general elections.

An example of this is Guidelines and Regulations for the 2015 General Elections.[9] In the case of Okechukwu v. Onyegbu,[10] the Court of Appeal talking about the purport of the Manual for Election Officials, 2007 made pursuant to section 161 of the Electoral Act, 2006 (now section 153 of the Electoral Act, 2010 as amended) said as follows: The Manual for Election officials, 2007 (exhibit AK in the instant case) was published by INEC for the fundamental objective of giving effect to the provisions of the Electoral Act, 2006. The guidelines are undoubtedly meant to be strictly constructed and adhered to by the electoral officials concerned in the process and procedure for election.

Nature of Election Petition :

Election petitions are neither criminal nor civil cases. On the ground of public policy, they are regarded as unique and therefore, accorded special treatment. In legal parlance, election petitions are “sui generis” which means special, or, put in another expression, proceedings of its own kind or class, unique or peculiar.

 Election petitions have peculiar features which modify the operation of certain rules of civil proceedings. Some technical defects or irregularities which in other proceedings are considered immaterial to affect the validity of the claim, could be fatal to proceedings in election petitions.

In Obasanya v. Babafemi[11] the Court of Appeal held that election petitions basically complain about elections or conduct of elections. In Orubu v. INEC[12] it was further held that election petitions are peculiar in nature, and because of their peculiar nature, and importance to the well-being of a democratic society, they are “regarded with an aura that places them over and above normal day to day transaction between individuals which give rise to ordinary claims in court.” Uwais CJN (as he then was) puts it succinctly as follows:-

“An election petition is not the same as the ordinary civil proceedings. It is a special proceeding because of the nature of elections which, by reason of their importance to the well-being of a democratic society are regarded with aura that places them above the normal day to day transactions between individuals which give rise to ordinary or general claim in court. As a matter of deliberate policy to enhance urgency, election petitions are expected to be devoid of the procedural clogs that cause delay in the disposition of the substantive dispute”.

 This view was also expressed by Oguntade JCA in Abdulahi v. Elayo[13] thus: – “It must be borne in mind that an election petition is not always to be treated as the ordinary civil suits in court. An election petition creates special jurisdiction and the ordinary rules of procedure in civil cases do not always serve to effectuate its purpose”.

The Proposed Amended Electoral Bill (2018)

As at today the Proposed Amendment of the Electoral Act 2010, has still not been assented to by the President of Nigeria, His Excellency President Muhammadu Buhari. His reason for this is due to some errors in the said Bill, and also the burden the amendment would put on the Independent National Electoral Commission (INEC) and political parties should it become law.

We do however hope, that the Bill be passed as it contains provisions which in effect supplements the old Law positively. The Amended Electoral Bill is reported to have been revised three times, following some reservations the President has concerning the Bill. As a result, he is declining to sign the bill and alternatively giving amendments to the proposed Bill made by the Law Makers.

For the avoidance of doubt, neither the Constitution nor any written law allows a President or a Governor to whom a Bill is forwarded by the Legislature to edit, correct, amend or in any manner alter the provisions of any such Bill to reflect appropriate intent before Assenting to same.

The provision of the Constitution is to the effect that he is to assent in the manner it is or to withhold assent. However, while the refusal of the President to sign the Bill persists, the Law Makers are considering overriding the President, where after proper perusal; they are not satisfied with the reasons given by the President in withholding assent.

[1] Asein, J. O. (1998), Introduction to Nigerian Legal System, Sam Bookman Publishers, Ibadan p. 67

[2] See e.g. the strict liability principle developed in Rylands v. Fletcher (1886) L.R. 3. H.L. 330

[3]The doctrine of judicial precedent (otherwise called stare decisis) requires all subordinate courts to follow decisions of superior courts even where these decisions are obviously wrong having  been based upon a false premise. This is the foundation on which the consistency of our judicial decision is based: See Ngwo v. Monye(1970) 1 All NLR 91 at 100. It is however, the principle of law upon which a particular case is decided that is binding. Such a principle is called ratio decidendi. A statement made in passing by a judge which is not necessary to the determination of the case in hand is not a ratio decidendi of the case but an obiter dictum and it has no binding effect for the purpose of the doctrine of judicial precedent. See Dalhatu v. Twiaki&Ors (2003) LPELR 917. Also N.A.B Ltd v. Barri Eng. (Nig) Ltd (1995) 8 NWLR (pt 413) 257 pp. 289 -290.

[4] Except in the North, but the practice of the Northern courts is the same as if the words “of England” were  included

[5] Park, A.E.W. The Sources of Nigerian Law (Sweet & Maxwell 1963) 54

[6] See Popoola, A.O. ‘Election Petitions and the Challenge of Speedy Dispensation of Justice in Nigeria’ being a  paper commissioned for presentation at the Induction Course for newly appointed Judges and Kadis of  the  Sharia Court of Appeal by the National Judicial Institute, Abuja 4-15 June, 2007

[7] [2018] 7NWLR Pt 1512 Pg 555

[8] supra

[9]Available online at www.inecnigeria.org/wp-content/uploads/2015/01/FINALaccessed on 10 February 2015

[10] (2010) All FWLR (pt. 524) p. 117 at 136-137.

[11] (2000) 15 NWLR (pt 689). 1

[12] (1988) 5 NWLR (pt. 94 323 at p.347)

[13] (1993) 1 NWLR 332.

 

This paper will take a look at some of these amendments and what effects they will have on our Electoral System if passed.

There is an introduction of subsection (5) to Section 8 (containing four subsections in the present Act), which addresses the appointment of secretaries and other staff of the Independent National Electoral Commission (INEC). The proposed amendment seeks to penalize any INEC official who knowingly refuses to disclose his political affiliation before being employed by the commission. The penalty is a fine of N5million, an imprisonment of at least five years or both. The effect of this amendment is to enhance the non-partisanship status of the commission.

There is Section 38 in the old Act, which covers the failure of nomination by a party and mandates the Commission to postpone the election dates for this reason. The amended version includes a new subsection (2) which makes postponement of election unnecessary once there is at least one valid nomination by a political party. And of course, the effect of this will be to save time and prevent the electoral processes from dragging unnecessarily.

We also have Section 44, which stipulates that INEC must ensure the ballot papers contain the symbols of the political parties. The amended version inserts a new subsections 3, 4, 5  which, in a nutshell, state that political parties must be invited to inspect their identities and show whether they approve or disapprove of how they are represented on the electoral materials after two days of invitation. And any party that fails to honor the invitation shall be deemed to have agreed with symbols of its party as presented. The effect of this will be to forestall the usual litigation after elections where parties claim their parties’ logos, symbols or names are omitted, or misstated.

There is Section 49, which addresses the issues of ballot paper, confirmation of voters’ names. The amended version seeks the inclusion of Subsections 1 and 2, which recommend the use of card reader and other technological devices in elections. The effect of this will simply be to forestall irregularities and inconsistencies that often mark and mar our electoral results.

There is Section 53, which addresses the question of over-voting and stipulates that the results of a polling unit where the number of votes cast exceeds that of registered voters should be declared null and void. The proposed amendment states that the results should be cancelled when the number of votes cast exceeds that of ACCREDITED voters and this reflects the current practice in Nigeria when accreditation precedes voting.

Section 63(4) of the Electoral Act addresses the issue of counting of votes and forms. This subsection says the presiding officer should count and announce the result at the polling units. The amended version to this subsection strikes out COUNT and simply states that the presiding officer should announce the result.

Section 91 addresses the limitations on election expenses. The following is the list of maximum limit on election expenses that can be incurred by candidates, according to the old and the proposed:

Presidential election N1billion (Present) – N5billion (proposed)

Governorship election M200m (Present) – N1bn (Proposed)

Senatorial Seat N40m (Present) -100m (Proposed)

Federal House of Representatives N20m (Present) – N70m (Proposed)

State Assembly N10m (Present) – N30m (Proposed)

Chairmanship election N10m – N30m

Councillorship N1m (Present) – N5m (Proposed)

In addition, Section 91(9) which prohibits any individual or entity from donating more than N1million has been amended to N10million.

This provision has created a lot of arguments, as we cannot tell if this is a ploy to make our political space an exclusive preserve of some preserved elites or to make the anomaly of vote buying a permanent feature of our elections?

Another amendment is the proposed Section 25, which addresses the days of election. The proposed version tinkers with the sequence of elections. The elections will now be from the national assembly to the state assembly, then governorship and presidential, and not the other way round. The rationale for the proposed amendment is to secure the independence of the legislatures, who have always accused the Executive of interfering in the election of its members as well as the principal members of the House.

CONCLUSION

An examination of the legal regime of election administration in Nigeria has revealed that the grundnorm for the conduct of elections in Nigeria consists of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Electoral Act 2010 (as amended), case law and guidelines regulating the conduct of institutions and agencies involved in elections.

The National Assembly did a commendable job in 2010 in its amendment of the 1999 Constitution among which are: making the Independent National Electoral Commission (INEC) financially independent when it made its expenditure derivable directly from the Consolidated Revenue Fund[1], Inclusion of time limitation for the hearing of election petition in the constitution to address the problem of delay in the hearing of election petition[2] to mention but a few. The Electoral Act 2010 also contains provisions to address delayed hearing of election petition unlike the position under the repealed Electoral Act 2006.[3]

However, there is the need to further amend the Constitution as well as the extant Electoral Act to further guarantee and strengthen the independence of INEC by making the Commission not subject to the direction and control of any person or authority in the exercise of all its operation.[4] Additionally, the constitution as well as the Electoral Act should be further amended to accommodate other plausible recommendations of the Electoral Reform Committee such as independent candidacy, giving greater weight to the substance of the petition rather than mere technicalities among others. This is imperative to restore credibility in the electoral process in Nigeria and ensure the conduct of free, fair and credible elections in the country.[5]

Thankfully, the National Assembly has proposed some amendments, some of which were discussed above. Although the said Amended bill remains unsigned by the President, it is the prayer of the National Assembly that it becomes assented by the President so that it will fill some lacunas in the current Act.

It is the writer’s opinion that such assent by the President may cause more damage to our growing democracy than what it is trying to avert, which was why the presidency has made necessary inputs before sending the bill back to the National Assembly. We hope the National Assembly will reconvene to consider and approve the necessary corrections to the amended Electoral Act, and send it back to the President, and we urged the National Assembly not to override the bill.

[1] See section 84 of the 1999 Constitution of the Federal Republic of Nigeria (as amended

[2] See section 285(5) and (6), ibid

[3] See section 134 (1) and (2) of the Electoral Act 2010 (as amended)

[4] Under section 158(1) of the Constitution, INEC shall not be subject to the direction or control of any other  authority or person in exercising its power to make appointments or to exercise disciplinary control over persons.

[5] An Analysis of the Legal Regime of Election Administration in Nigeria by Z. O. Alayinde Department of International Law, Faculty of Law, ObafemiAwolowo University, Ile-Ife, Osun State, Nigeria.

 

References:

An Analysis of the Legal Regime of Election Administration in Nigeria by Z. O. Alayinde Department of International Law, Faculty of Law, ObafemiAwolowo University, Ile-Ife, Osun State, Nigeria.

Alabi, M. O. A & Omololu, O. T. (2012), ‘ Uwais Report, Electoral Act 2010, and the Future of Democratic Elections in Nigeria’ in Layonu, A. I. &Adekunbi, A. A. O. (eds.) Reflections on the  Nigerian Electoral System, First Law Concept, Ibadan

 Asein, J. O. (1998), Introduction to Nigerian Legal System, Sam Bookman Publishers, Ibadan

Ese, Malemi (2006), The Nigerian Constitutional Law, Princeton Publishing Co, Lagos  Olatunbosun, I. A. &Alayinde, Z. O. ‘Problems of Classification of Election Petition Proceedings in Nigeria’ (2011) Ife Journal of Politics, Vol. 1, No 2.

Park, A.E.W. The Sources of Nigerian Law (Sweet & Maxwell 1963)

 Popoola, A. O. ‘Election Petitions and the Challenge of Speedy Dispensation of Justice in Nigeria’ being a  paper commissioned for presentation at the Induction Course for newly appointed Judges and Kadis of  the Sharia Court of Appeal by the National Judicial Institute, Abuja 4-15 June, 2007.

 Uwais Electoral Reform Committee Report, in The Constitution Vol. 9, No. 2, June 2009.

 Convention on the Elimination of All Forms of Discrimination Against Women’ available online at http://www.ohchr.org/EN/Professionallnterest/Pages/CEDAW.aspx

 Universal Declaration of Human Rightsavailable online at http://www.un.org/en/documents/udh

 Convention on the Political Rights of Women, 193 U.N.T.S. 135, entered into force July 7, 1954 availableonline at http://www1.umn.edu/humanrts/instree/e2cprw.htm

 African Commission on Human and Peoples’ Rights available online at   http://www.achpr.org/instrumennts/achpr//

 International Covenant on Civil and Political Rights’ available online at  http://www.ohchr.org/EN/Professionallnterest/Pages/CCPR.aspx

 1999 Constitution of the Federal Republic of Nigeria (as amended)

 The Electoral Act 2010 (as amended)

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