Interrogating The New Harmonized Electoral Act 2006 - Some Recommendations
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A. Introduction
With the World Cup going on, I have
now been able to sit back and watch the matches while leafing through the
78-page harmonized Electoral Act 2006 that was passed by our National
Assembly on May 31, 2006, but is now awaiting assent into Law by President
Obasanjo.
A close perusal makes it now very
clear that we have some problems in our hands when we marry the requirements
of the 1999 Constitution with this Electoral Act 2006. It is really the
latter that handicaps the former.
In the course of the discussion below,
I raise several objections to the new Electoral Act, from which the
following summary of fourteen recommendations emanates:
1. Election results should be
announced within seven days (currently there is no stipulation whatsoever.)
2. Petition against .election results
should be filed within seven days (currently it is 30 days.)
3. Petitions should be heard and
disposed off by tribunals within fourteen days (currently there is no
stipulation whatsoever. The "accelerated hearing" clause of Section 148 of
the Electoral Act 2006 is too open-ended.)
4. A constitutional amendment should
be done to change the window of elections from 30-60 days to 115-145 days
before hand-over date, so that elections can be held in February 2007
5. Section 47(a)'s reference to
"day" in connection with specifying election date at least 14 days before
the election day is inconsistent with Section 31(1)'s reference to 150 days
prior to such a specification. The latter reference should therefore be
deleted.
6. Section 53(1)(a) of Electoral Act
2006 should state more clearly the Open Secret Method to be used for
elections, so that it is identical to the June 12, 1993 secret MOBS system.
7. Consequently, Section 136(1)(i)
and Section 63(2) which exclude lawful citizens, particularly voters, from
the scene of announcement of results, should be scrapped.
8. Section 45(1) should be amended to
specifically include the "names of candidates" on the ballot paper (only
name and symbol of party is currently mentioned specifically).
9. Subsection 54 which provides a
very useful test of the credibility of the voting in a particular polling
booth or constituency should be amended to read exceeding the "number of
ballot papers issued" as the test for cancellation of polls rather than the
"number of registered voters."
10. Instead of an indeterminate
amount of grant to political parties by INEC to be shared on a 10%
equality-90%-seats-won basis, Section 91 should be amended to specifically
reflect an annual grant of N5-10 billion;
20% shared on the basis of equality;
during a general election year;
20% in proportion to number of candidates by each party presented to run in
the National Assembly; and 60%
to be shared among the registered political parties in proportion to seats
won at the National Assembly; the latter being increased to 80% in
non-general-election year.
11. Sections 28(2) and 64(4) should
be amended in the spirit of ensuring that results of all elections are not
only announced and placed on INEC website, but also written up on large
display boards at the polling site for all to see and digitally photograph.
12. Section 50(2) should be amended
to read that "The Presiding Officer shall, on being satisfied that the name
of the person is on the Register of Voters, issue him a ballot paper and
indicate on the Register that the person has [delete: voted] BEEN ISSUED A
BALLOT PAPER. " [Voting and being issued a ballot paper are two different
matters.]
13. Section 32(6) unusually punishes
a political party that fields an unqualified candidate, and should be
amended to include the word "knowlingly" in such an infraction that draws a
N500,000 fine.
14. Diaspora voting should be
unambiguously empowered simply by amending Section 131(1)(c) to read " A
person shall be qualified for registration as a voter if such a person....(c)
is ordinarily resident in, OR works in, OR originates from the Local
Government/Area Council or Ward covered by the registration centre,
including such centres established outside Nigeria for the benefit of
citizens abroad."
15. Finally, still missing from the
Act is the formal inclusion of representatives of political parties and
civil society either directly into INEC, or to constitute a formally
recognized Advisory Board to INEC.
B. Election Dates and Run-Offs
Table 1 below lists certain dates and
deadlines according to the 1999 Constitution as well as the 2006
Electoral Act (Harmonized).
It will be necessary in our discussion
below, in order to fix ideas here, to focus on the 2007 Presidential
election, despite the fact that the date has not yet been fixed by INEC.
Whenever it is fixed as well as whenever the dates of the other elections
are fixed - offsetting all the dates set out in Table 1 will be no problem.
For this purpose, let us fix the
presidential election date as Tuesday, April 3, 2007, bearing in mind that
there is a firm date (May 29, 2007) for hand-over, and that there is a
constitutionally-mandated period (March 30 April 29) within 30 and 60 days
of the hand-over date to conduct the presidential election.
The major problem then are the two
constitutionally-stipulated RUN-OFFS as well as the times for petitions.
In two of my previous essays, I mistakenly thought that the Constitution
said that each run-off would be "within seven days of the last election",
making me to recommend April 3, 10 and 17 as a possible set of dates to
conduct all of these elections, starting with the main one. In fact, what
the Constitution says is within seven days of the ANNOUNCEMENT of the
results of the last election which puts a completely different spin to it,
because that depends on WHEN the election result for any one of the
elections is announced!
If the results are ANNOUNCED on the
same day as the election, then in fact the first run-off will indeed be
within a week of the last election. However, that is MOST LIKELY not to be
the case. If it always takes about ONE WEEK to announce election results
let us say the announcement is on April 10 - then the run-off will be two
weeks after the last election, on April 17 which means that a second
run-off might take place ONE MONTH after the first main election. So if the
presidential election is on April 3 and even if all the other elections
are held on that one day - we might be looking at no earlier than May 3 to
conduct that second run-off, barely three weeks to the hand-over date of May
29.
The 2006 electoral Act also allows
petitions to be filed within 30 days of any election. (Section 141 of
Electoral Act 2006.) But what happens if a valid petitioner does petition
concerning the presidential election of April 3, 2007? He is therefore
allowed up till May 3 to file the petition. Will that hold Run-Off # 1
up? Maybe not, since the constitution does not make room for that. Or
what happens if a petitioner validly questions the result of Run-off No.1?
Will that hold Run-Off # 2 up? Maybe not.
And so on
.
So in addition to delays in announcing
results, there might be delays in hearing petitions about the elections that
could delay things tremendously, and abut desperately on the May 29
hand-over date. The upshot is that three presidential elections to produce
one president might have occurred while petitions on the first one are still
being heard!
How can these problems be solved? One
set of recommendations is by law; the other through constitutional
amendment.
The first recommendation is to
STIPULATE by law how soon after an election date that the results must be
announced, for example no later than 7 days.
Section 72 should therefore read:
QUOTE
Within 7 days of an
election, the Commission shall cause to be posted on its notice board and
website, a notice showing
(a) the
candidates at the election and their scores;
(b) the personal
declared elected or retuned at the election .
UNQUOTE
The second recommendation is to
shorten by law the period after an election result is announced that a
petition can be filed for example no longer than within 7 days. The
third recommendation is to stipulate by law the length of time for which
petitions should be heard and disposed of after it has been filed for
example no longer than 14 days after it has been filed. The "accelerated
hearing" clause of Section 148 of the Electoral Act 2006 is too open-ended.
However, even with those
recommendations, all of which the President can suggest before he assents to
the Electoral Law 2006, we are still handicapped BOTH by the May 29 handover
date and the 30-60 day election window stipulation in the Constitution. It
is that window that MUST be changed by a constitutional amendment to 115-145
days without further delay, which will enable the elections to be legally
held early in the month of February 2007 instead of April, buying 60 more
days to do run-offs, file petitions and hear them. Another desirable (but
not absolutely necessary) constitutional amendment is to eliminate one of
the two run-offs two run-offs are simply too complicated and wasteful:
if we will accept a simple majority after the second run-off, we might as
well accept it in after the first run-off!
C. Voting Open Secret
Balloting and Protecting Our Votes
Section 53(1)(a) of Electoral Act 2006
simply states that
QUOTE
Voting at an election
under this Act shall be by open secret ballot.
UNQUOTE
and says no further what that
actually means and how it will be carried out. Although in Sections 43 to
77, it goes on to describe the nature of polling stations, registration,
voting and announcement procedures, it is clear that what is described is
NOT the secret Modified Open Ballot System (MOBS) of June 12, 1993, and that
it leaves the details entirely to the discretion of INEC.
In order to discern this, one will
notice that the Sections 43-77 and Section 136, without specifically stating
so, actually establish various PERIMETERS around a given set of particular
ballot boxes:
(1) the innermost polling booth
perimeter, inside which the ballot boxes resides. Only voters whose
eligibility has been verified and are in the process of actually voting, or
have just completed their voting, as well as lawfully-allowed persons
(electoral officers, law enforcement officers, accredited observers, as
defined in Section 62(1)) are allowed within that perimeter.
QUOTE
Section 62(1) The
Presiding Officer shall regulate the admission of voters to the polling
station and shall exclude all persons other than candidates, polling agents,
poll clerks and persons lawfully entitled to be admitted including
accredited observes, and the Presiding Officer shall keep order and comply
with the requirements of this Act at the polling station.
UNQUOTE
Once you are admitted to this
perimeter as an eligible voter, you can vote after
marking your ballot and placing it in
a ballot box, but you must retire to beyond the
outermost perimeter beyond a cordon
(see below.)
(2) an outer post-registration
perimeter inside which citizens who have been certified eligible to be
eligible to vote and other lawfully-allowed persons can be within. Only
those certified can in time proceed into the polling booth perimeter. The
others must retire behind a cordon.
(3) a still-outer polling station
perimeter inside which ALL citizens who have come to present themselves to
enable determination of their eligibility to vote and all other
lawfully-allowed persons can be in. Some of them will be ineligible and
must retreat beyond the cordon away from this perimeter (lest they violate
Section 136(1)(i); see below); those who are eligible can proceed into the
post-registration perimeter.
(4) an outermost cordon 300-meter
around the polling station perimeter, in which certain acts are forbidden
by Section 136(1) of the Electoral Act 2006:
QUOTE
136(1) No
person shall on the date on which an election is held do any of the
following acts
or things in a polling station or within a distance of 300 meters of a
polling
station:
(a) canvass for the
vote of any voter;
(b) solicit for
the vote of any voter;
..
(i)
loiter without lawful excuse after voting or after being refused to vote.
UNQUOTE
We should also note Section 63 of the
Electoral Act:
QUOTE
63(1) At the prescribed
hour for the close of poll, the Presiding Officer shall declare the poll
closed and no more person(s) shall be admitted into the Polling Station and
only those already inside the Polling Station shall be allowed to vote.
(2) After the
declaration of the close of polls, no voter already inside the polling
stations shall be permitted to remain in the polling station unless
otherwise authorized by this Act .
UNQUOTE
In fact, these two subsections of
Section 63 appear contradictory.
In any case, Section 136(1)(i) and
Section 63 of this Electoral Act are precisely what militate against secret
MOBS of June 12. In that MOBS system, first there was no 300-meter cordon.
Secondly, citizens first came to line up within the polling station
perimeter from (say) 8 am to 10 am, verified whether they were eligible to
vote (whereupon they got a ballot paper) or not, and then retreated if they
wished. All those that could vote were then allowed to return to within
the post-registration perimeter with their ballot papers at hand, and then
proceeded to vote secretly into their polling box, but in full view of the
public eye of everyone. Announcement was in the presence of EVERYBODY in
the polling station perimeter, including non-voters.
That is the secret MOBS of June 12,
and it enabled voters themselves to hear the results and hence to protect
their votes.
While one is not opposed to a cordon
in which certain political activities are NOT permitted on election day,
however it should not include the prevention of voters and non-voters from
witnessing the counting and hearing the announcement of votes.
Consequently, first, Section 136(1)(i)
and Section 63(2) must in fact be done away with for secret MOBS to occur.
D. Miscellaneous Other
Matters Arising
D.1 Lack of Requirement of Name
of Candidate on Ballot paper
Section 45(1) currently omits "name of
candidate" and should be changed to read:
"The Commission shall prescribe the
format of the ballot papers which shall include the symbol adopted by the
Political Party of the candidate, the name of the candidate,
and such other information as it may require."
This will avoid the ridiculous
situation that occurred in 2003 where names of candidates were substituted
AFTER the elections had been held.
D.2 Importance of Issued Ballot
Papers instead of Registered Voters
Section 54 reads as follows:
QUOTE
54(2) Where the votes
cast at an election in any constituency or polling station exceed the number
of registered voters in that constituency or polling station, the election
for that constituency or polling station shall be declared null and void by
the Commission and another election shall be conducted at a date to be fixed
by the Commission.
UNQUOTE
The subsection provides a very useful
test of the credibility of the voting in a particular polling booth or
constituency, but the test should be on the "number of ballot papers issued"
rather than on the "number of registered voters."
D.3 10%-90% Distribution of
Grants to Political Parties
Section 91 of the Electoral Act reads
that:
QUOTE
(1) Notwithstanding
the provisions of this Act, the National Assembly may make an annual grant
to the Commission for distribution to the registered political parties to
assist them in their operation.
(2) The Commission
shall distribute such grant as follows:
(a) 10% of the grant
shall be shared equally among all the registered political parties;
(b) the remaining 90%
of the grant shall be shared among the registered political parties in
proportion to the number of seats won by each party in the National
Assembly.
UNQUOTE
With the possibility of almost 50
political parties that will be registered, and maximum allowed expenditures
ranging from N500 million (for presidential election) down to N500,000 (for
local government elections), 10% shared equally might turn out to be a
ridiculously small amount for each party. If for example INEC has N1
billion total amount to give as grants to parties, 50 of them would receive
a mere N2 million each on the basis of 10% equal sharing! I believe that a
more reasonable sharing set of parameters would be:
- a minimum of N5 billion, but
no more than N10 billion, shared ANNUALLY as public grant to all political
parties;
- 20% on the basis of
equality;
- during a general election
year, 20% in proportion to number of candidates by each party presented to
run in the National Assembly; and
- during a general election
year, 60% to be shared among the registered political parties in proportion
to seats won at the National Assembly, but increased to 80% in
non-general-election year.
D.4 Announcement and DISPLAY
of results
According to Section 28
QUOTE
(1) The Electoral
Officer shall act as Returning officer for election to the office of
Chairman of Area Council.
(2) Results of
all the elections shall be announced by
(a) the
Presiding Officer at the Polling Station;
(b)
..
(h) the Chief Electoral
Commissioner who shall be the Returning Officer at the Presidential
election.
UNQUOTE
Also Section 64(4) reads:
QUOTE
The Presiding Officer
shall count and announce the result at the Polling Station.
UNQUOTE
It would be ideal if Sections 28(2)
and 64(4) would read as follows (or be in the following spirit):
QUOTE
(2) Results of all
elections shall be announced, written up and left on a large display board
for all to see for no longer than 2 days, and photographed, by -
UNQUOTE
D.5 Wrong wording about voting
and receipt of ballot paper.
QUOTE
Section 50(2) The
Presiding Officer shall, on being satisfied that the name of the person is
on the Register of Voters, issue him a ballot paper and indicate on the
Register that the person has voted.
UNQUOTE
Instead of the word "voted", the
proper phrase is "presented himself to vote and has been issued a ballot
paper." It is conceivable that someone issued a ballot paper may not go
ahead and vote.
D.6 Unqualified candidate
presented by a party and sanction
The word "knowingly" should be
inserted in Section 32(6) viz:
QUOTE
A political party which
KNOWINGLY presents to the Commission the name of a candidate who does
not meet the qualifications stipulated in this section, shall be guilty of
an offence and on conviction shall be liable to a maximum fine of N500,000.
UNQUOTE
Omitting "knowingly" is pretty
severe. After all, Section 38 currently reads viz:
QUOTE
38. Where a candidate
knowingly allows himself to be nominated by more than one political party
and or in more than one constituency his nomination shall be void.
UNQUOTE
D7. Inconsistency in INEC
Publication of Election Date, Hours and Polling Stations
According to Section 31(1) of the Electoral Act, INEC must publish date
of election [and points of delivery of nomination papers] no later
than150 days before PED. However, in Section 47, INEC is allowed to
publish
(a) day/hours fixed for poll (b) people entitled to vote; and (c)
location of polling stations only 14 days before PED. Section
47(a)'s reference to "day" is therefore inconsistent with Section
31(1)'s reference to "date"; the latter reference should be deleted
accordingly.
D.8 Diaspora Voting
According to the 1999 Constitution:
QUOTE
77. (1) Subject to the provisions of
this Constitution, every Senatorial district or Federal constituency
established in accordance with the provisions of this Part of this Chapter
shall return a member who shall be directly elected to the Senate or the
House of
Representatives in
such manner as may be prescribed by an act of the National Assembly.
(2) Every citizen of Nigeria, who has attained the age of
eighteen years residing in Nigeria at the time of the
registration of
voters for purposes of election to a legislative house, shall be entitled to
be registered as a voter for that
election.
78. The registration of voters and the
conduct of elections shall be subject to the direction and supervision of
Independent National Electoral
Commission.
UNQUOTE
Strictly construed, Section 77(2)
ENTITLES those Nigerian citizens "residing in Nigeria", but does not
incapacitate those who are not residing in Nigeria at the time of
registration. One can surmise conclusion more keenly from the new language
of Section 13(1) b-c of the Electoral Act 2006, which states that:
QUOTE
13(1) A person shall be
qualified for registration as a voter if such a person
(a) is a citizen of
Nigeria;
(b) has attained the
age of eighteen years;
(c) is ordinarily
resident, works in, originates from the Local Government/Area Council or
Ward covered by the registration centre;
(d) presents himself
to the registration officers of the Commission for registration as a voter;
and
(e) is not subject to
any legal incapacity to vote under any law, rule or regulation in force in
Nigeria.
UNQUOTE
Thus even if those of us abroad do not
ordinarily reside or work in Nigeria, we all ORIGINATE from some local
Government/Area Council or Ward. If INEC can set up registration centers
abroad designated to cover ALL such local government/area councils and wards
- a phrase such as "including such centres established outside of Nigeria
for the benefit of citizens abroad" can be tagged on to Section 131(1)(c) -
then it would have satisfied Section 78 of the Constitution.
D.9 Composition of INEC
Finally, the manner of the composition
of INEC wherein all members are selected by the President - thereby
compromising its independence in the minds of Nigerian citizens - has not
been addressed by this Electoral Act. T he formal inclusion of
representatives of political parties and civil society either directly
into INEC is most essential, or at the very minimum the constitution of a
formally recognized Advisory Board to INEC comprising such persons.
E. Epilogue
One hopes that the above
considerations will be seriously made before presidential assent is given to
Electoral Act 2006 before it becomes law.
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Bibliography:
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Table 1: Key Deadlines
Outlined in Harmonized Electoral Act 2006
Legend:
Electoral Act 2006 - EA2006 (passed by
National Assembly on May 31, 2006; yet to be assented to by the President)
Presidential Election Day PED
(assumed here to be April 3, 2007, but yet to be announced by INEC)
Hand-Over Day H-OD (taken to be May
29, 2007)
|
Date
|
Event
|
|
|
|
|
2006
|
|
|
|
|
|
Wednesday, May 31
|
Electoral Law 2006
[Harmonized]
passed by National Assembly
|
|
|
|
|
????????
|
Assent by President Obasanjo ?
|
|
|
|
|
August 31
|
Deadline for INEC to submit
Budget for activities for
following
Year 2007 [Section 6(1) of
EA2006]
|
|
|
|
|
Tuesday, October 5
|
180 days before PED:
1. Political parties
intending to be registered must submit their
applications not later than
six months before PED [Section 78(1)]
1. Political parties
intending to merge must give six months notice
to INEC before PED [Section
84(2)]
|
|
|
|
|
|
|
|
|
|
|
Saturday, November 4
|
150 days before PED:
1. Not later than 150 days
before PED,
INEC must publish date of
election and
where nomination papers are to
be delivered [Section 31(1)]
|
|
|
|
|
|
|
|
Wednesday, December 4
|
120 days before PED
1. Registration of voters
that will vote not
later than 120 days before PED
[Section 10(5)]
..but
registration must continue
[since it is continuous; Section 10(1)]
2. Party must submit list of
candidates to
INEC not later than 120 days
before PED [Section 32(1)]
3. INEC must publish
particulars within 7 days after receipt.
[Section 32(3)]
|
|
|
|
|
|
|
|
2007
|
|
|
|
|
|
|
|
|
Wednesday, January 3
|
90 days before PED:
1. Parties to submit audited
account [Section 89(1)]
2. Public campaign by parties
can begin;
to last only 90 days and end
24 hours to poll opening
[Section 101(a)]
|
|
|
|
|
Tuesday, January 23
|
70 days before PED:
1. Candidate can withdraw his
candidature [Section 36(1)]
|
|
Friday, February 2
|
60 days before PED:
1. Not later than 60 days
before PED,
supplementary voters' list
shall be integrated
with the voters' register and
published [Section 21]
2. Parties can signify intent
to change its
candidate not later than 60
days before PED [Section 34(1)]
3. Party can change a
withdrawn candidate not
later than 60 days before PED
[Section 36(2)]
|
|
|
|
|
Thursday, March 1
|
Within 60 days after each
year:
1. INEC must make names,
addresses of all
registered persons during 2006
available
to every political party
[Section 11(1)(b)]
|
|
Sunday March 4
|
30 days before PED
1. INEC to publish by display
full names of
all candidates standing
nominated [Section 35]
2. No duplicate voter's card
issued on polling day or within 30 days
of PED [Section 19(3)]
|
|
|
|
|
|
|
|
Tuesday, March 20
|
14 days before PED
1. INEC shall publish
(a) day/hours fixed for poll
(b) people entitled to vote;
and
(c) location of polling
stations. [See Section 47]
2. Election tribunals shall
be set up
not later than 14 days before
PED [Section 140(3)]
|
|
Tuesday March 27
|
7 days before PED:
1. Each political party to
submit names and
addresses of its polling
agents [Section 46(1)]
|
|
Friday, March 30
|
60 days before H-OD
1. Presidential elections
cannot be held
earlier than this date (by
1999 Constitution)
|
|
Monday April 2
|
Public campaign ends on this
day
|
|
Tuesday April 3
|
Presidential Election Day
|
|
|
|
|
????????????
|
PED Results Announced when ?
Date of announcement uncertain
|
|
|
Election petition to be filed
within
30 days for results
declaration [Section 141]
|
|
????????????
|
Run-off # 1 7 days after PED
Results are announced by
1999 Constitution.
Date of announcement uncertain
|
|
|
Election petition can be filed
within 30
days for results
declaration [Section 141]
|
|
????????????
|
Run-off # 2 - 14 days after
PED Run-off # 1 announced
Date of announcement uncertain
|
|
|
Election petition can be filed
within 30 days
for results declaration
[Section 141]
|
|
Sunday, April 29
|
30 days before HOD
1. Presidential elections
cannot be held later
than this date (by 1999
Constitution)
|
|
|
|
|
|
|
|
Tuesday May 29
|
Hand-Over Date (HOD) to
Administration
|
|
|
|
____________________________________________________________________________________________________________