The Umpire’s New Clothes What the New Electoral Act Means for INEC

The 2022 Electoral Act is Nigeria’s most ambitious and farthest-reaching iteration of its electoral act. The act is largely reflective of 12 years’ worth of delayed updates, but what will this new act mean for INEC?

On February 23, 2019, Professor Innocent Ibeabuchi, an Independent National Electoral Commission (INEC) returning officer, declared Rochas Okorocha the winner of the Imo West senatorial election ‘under duress’. Ibeabuchi publicly stated that he was being held hostage at the collation centre by associates of then-governor, Okorocha. In response, INEC’s spokesperson, Festus Okoye, conveyed the commission’s decision to refrain from issuing a certificate of return to Okorocha.  

By choosing not to recognize Okorocha as a senator-elect, INEC departed from its customary neutral position after an election result was announced. However, INEC’s well-intentioned electoral activism was put to an end on June 7 that year. Justice Okon Abang, of the Federal High Court, determined that INEC had no authority, under any law in the nation, and particularly under the then-governing 2010 Electoral Act, to withhold the certificate of return of a candidate who had been returned as the winner of an election. 

The new Electoral Act signed by President Muhammad Buhari in 2022 gave the electoral process a much-needed boost with Justice Abang’s ruling being an example of INEC’s limited power under the previous act. Positive comments about INEC’s handling of the 2022 governorship elections in Osun and Ekiti have led some to believe that Nigeria’s electoral system has finally matured. But is the 2022 Electoral Act the missing piece that finally pushes INEC over the line in conducting credible elections? 

PLAYING CATCH UP  

In Nigeria, elections have historically not been known for being free and fair, with consistent reports of election manipulation, violence, and fraud. Electoral bodies are often blamed for increased apathy in the electoral process, where action or inaction from such bodies is viewed with suspicion by political parties and citizens alike. A well-known illustration of this was the allegation of rigging and irregularities that emerged during the 1965 Western Region election. Following the election, the role of the then-Federal Electoral Commission was largely framed by the media and political parties as one of incompetence that led to unfavourable outcomes. The election was crucial in the struggle for federal control between the two major rival alliances, the United Progressive Grand Alliance (UPGA), through the Action Group (AG) and the ruling Nigerian National Alliance, through the Nigerian National Democratic Party (NNDP). The Chairman of the Federal Electoral Commission, Eyo Esua, had been chastised by both AG and NNDP leaders in the run-up to the election, with various calls for his resignation. According to Larry Diamond’s 1998 Class, Ethnicity and Democracy in Nigeria, Esua, however, protested his inability to ‘perform the miracles’ expected of him due to the limited and conflicting scope of the FEC’s powers. This election resulted in widespread violence in western Nigeria, and was cited as a major reason for the first military coup in 1966. 

Surprisingly, as Esua pointed out, the electoral law, which establishes the parameters for what an electoral body can do, is largely ignored when discussing effective election management and operating in a low-trust society. These leads to doubts about the independence and impartiality of electoral bodies. To understand how election management by electoral bodies has evolved, it is also important to recognize that the stop-start nature of the military’s historical involvement in politics has contributed significantly to the lack of consistent growth in the electoral process and electoral laws.  

The legal authority granted to electoral bodies has historically varied because, before 1999, most elections were conducted in accordance with military decrees, including the Electoral Decree of 1977, the Participation in Politics and Elections (Prohibition) Decree of 1987, and the Electoral Decree of 1998. The military’s control over election procedures led to a situation in which the game’s rules could be altered in the middle of the action, and in most cases, while the electoral body coordinated activities regarding elections, the military government held ultimate authority. 

There have been several iterations of the electoral body, none of which addressed the precursor institution’s fundamental problems—mainly a lack of independence. From the Federal Electoral Commission (FEC), (1960-1966) to the newer Federal Electoral Commission (FEDECO) (1978-1983) constituted during the General Olusegun Obasanjo regime in 1978. FEDECO organized the Second Republic (1970-83) elections of 1979 and 1983 before it was replaced by the National Electoral Commission of Nigeria (1987-1993), which conducted the acclaimed June 12 presidential election of 1993, adjudged by many to be free and fair.  

In December 1995, the General Sani Abacha regime replaced NEC with the National Electoral Commission of Nigeria (NECON). General Abdulsalam Abubakar’s administration dissolved NECON in 1998 and established INEC which conducted the 1999 general elections. 

The return of a civilian administration in 1999 brought some democratic stability, allowing electoral laws to evolve and be fine-tuned with each electoral cycle. The Electoral Decree of 1998 gave way to the Electoral Act of 2002, under which Abel Guobadia’s INEC conducted the 2003 general election to mixed reviews. The need for a reform of the Act was evident and the promulgation of the 2006 Electoral Act was described by Mojeeb Alabi, a Political Science professor and former member of the House of Representatives as a comprehensive reaction to the myriads of electoral problems that have plagued the Nigerian state for decades’. This elicited expectations that changes in voter registration and voter list compilation would result in improvements to the electoral process. It also closed a loophole that allowed parties to change candidates even after polling had ended. 

However, despite the high expectations, the 2007 elections were widely regarded as the worst in Nigerian history, with international observers such as the Max Van Den Berg led European Union Observer Mission, concluding that the elections ‘fell far short of basic international and regional standards for democratic elections.’ A significant portion of the blame, however, resided with the commission led by Maurice Iwu, who observers asserted took a lackadaisical approach to election preparation and failed to implement several recommendations made by international partners. 

SEEKING TRUE INDEPENDENCE 

While the 2007 general elections occurred with the same issues as previous contests, the aftermath of the 2007 elections was noticeably different. The ultimate beneficiary of the process and president-elect, Umaru Musa Yar’Adua of the Peoples Democratic Party, acknowledged that the election that brought him into office was flawed. Following this, he signified his commitment to electoral reforms. In 2007, President Yar’Adua set up an electoral reform committee headed by retired chief justice of the Supreme Court, Mohammed Uwais, to investigate the elections and to propose reform measures to improve the electoral process in the country. The committee submitted its report on December 11 2008, after receiving memos from numerous people and organizations, holding public hearings across the nation, and commissioning studies that influenced its final recommendations.  

The committee found that, among other things, weak institutional and legal frameworks, as well as a lack of independence and capability of electoral management bodies, were the main causes of electoral malpractice.  The committee’s report, now popularly named after its chair, included several recommendations, including the removal of the president’s power to appoint its chairperson in favour of the National Judicial Council, a reorganization of INEC with direct funding from the Consolidated Revenue Fund, as well as the establishment of an electoral offences commission. 

While the recommendations were received and considered, Justice Uwais stated in a 2012 article in the Vanguard newspaper that:

‛the Bill that was produced by the National Assembly, though reflected on some of the Electoral Reform Committee’s recommendations, but not all of the committee’s recommendations were adopted. As far as the Electoral Reform Committee was concerned, the recommendations were intended to be in tandem with one another. The proposals were meant to work in concert with one another, according to the Electoral Reform Committee.’

This electoral reform strategy was further criticized by Uwais, who said that ‘If you want to make a good job of it, you cannot just pick and select a few.’

The momentum to pass legislative instruments also stalled due to the political intrigues that trailed Yar’Adua’s illness and subsequent death in 2010. Yar’Adua’s successor as president, Goodluck Jonathan,  signified his commitment to continuing the electoral reforms and this culminated in the 2010 Electoral Act. It also saw the appointment of Professor Attahiru Jega as the new INEC chair. Professor Jega was a member of the Uwais Committee and a well-respected former chairman of the Academic Staff Union of Universities.

This selection, and the administration of the 2011 election, suggests strongly that INEC’s leadership is an important factor in its work. Not surprisingly, the 2011 elections were positively reviewed, especially in light of the 2007 election. The 2010 Electoral Act benefitted from a significant amendment change establishing INEC’s financial independence by charging its budget to the Consolidated Revenue Fund. Multiple amendments by the legislature ensured that INEC was able to build a new voter registry, redesign voting and tabulation processes and also extend the timeline for conducting an election. Jega’s ability to leverage his relationships with civil society organizations and security agencies played a role in his ability to respond quickly and effectively to crises.

THE STALEMATE 

Despite the relatively successful outcome of the 2011 election, signs emerged that the Electoral Act still required improvement. INEC envisaged the introduction of smart card readers to authenticate and verify voters with Permanent Voters Cards or ‘PVCs’. This also meant INEC could tally the total number of voters accredited at each polling unit and forward the information to a central database server. The introduction of card readers sparked heated debate, with some viewing it as part of INEC’s ongoing efforts to ensure the conduct of a free and fair election, while others argued that INEC lacked the legal authority and capacity to use card readers.

Foreshadowing the problems that the use of card readers would cause, Professor Okechukwu Ibeanu, then chief technical adviser to the INEC chair, represented Jega at a dialogue on the review of the Electoral Law and Process in December 2012. Ibeanu also stated that while INEC had the capacity to deploy card readers, they were requesting an amendment to Section 52 of the 2010 Electoral Act, which prohibited electronic voting ‘so that nobody goes to court to say that electronic accreditation is part of electronic voting’. During the same dialogue, Andy Uba, then-chair of the Senate’s committee on INEC, stated that, based on the 2011 election results, the amended 2010 Electoral Act had not fully addressed the gaps and challenges of election administration in Nigeria. He also noted that the act required further review as part of preparations for the 2015 general elections.

Taking these concerns into account, the National Assembly debated and passed amendments to the Electoral Act 2010 to repeal the provision prohibiting electronic voting. This also meant allowing INEC to determine the procedure for voting at an election which saw the introduction of card readers. The 2015 election resulted in the first time since the return to democracy in 1999 that an incumbent president was defeated and, as such, was widely regarded as a free and fair election. However, cracks began to appear in the validity of the electoral administration process with the determination of the Supreme Court regarding the use of card readers. The court confirmed that use of card readers for voter accreditation was provided for in the Guidelines and Regulations for the Conduct of the 2015 General Elections. This provision was also subject to the amended powers of INEC to determine the voting procedure. However, the Supreme Court also noted that card readers were only meant to supplement, not ‘supplant, displace, or supersede’ the analogue procedure for accrediting voters.

In 2015, Jega was succeeded by Professor Mahmood Yakubu as INEC chair. In the run-up to the 2019 general elections, it had become clear that Yakubu had inherited a legal framework that was beginning to fray at the seams, and that the amended 2010 Electoral Act had outlived its usefulness. According to Ibeanu, who was appointed a National Electoral Commissioner in 2016, while failure to implement comprehensive reforms before the 2019 election ‘did not affect the capacity of INEC to innovate in any fundamental way, the only impact was on the unnecessary legalisms about the role of the smart card reader and electronic transmission of results.’ These legal challenges meant that attempts by INEC to improve the electoral process were deemed merely administrative.

Additionally, as different legal interpretations of the provisions of the Electoral Act were applied, politicians became aware of loopholes in the act that they could exploit to their advantage. The provision in the Act that allowed INEC to postpone elections where there was insecurity was the most notable example of this, with politicians disrupting the voting process in areas they considered to be their strongholds in the hope that such elections would be postponed. Other issues included threats to the life and safety of returning officers, as seen in Okorocha’s case, following an interpretation of the act’s provisions. Such provisions affirmed that only an INEC returning officer could announce the winner of the election and, where this occurs, only an election tribunal could invalidate the result. 

Reform efforts began in October 2016, with the formation of a Constitution and Electoral Reform Committee led by former senate president, Ken Nnamani. The committee submitted its report in May 2017. Despite the National Assembly’s efforts to review the 2010 Electoral Act, President Muhammadu Buhari rejected proposed amendments to the electoral act four times. Buhari had various reasons for failing to sign the amendment. In one letter he sent to the National Assembly, for instance, he mentioned that ‘passing a new electoral bill this far into the electoral process… could create some uncertainty about the applicable legislation to govern the process’. That said, the executive arm of government had no commitment to electoral reforms, and Buhari’s rejections were viewed with suspicion due to the frosty nature of the executive’s relationship with the legislature led by then senate president, Bukola Saraki.

STAYING AHEAD OF THE CURVE 

In February 2022, Buhari assented to the 2022 Electoral Act amid concerns that he was insincere about electoral reforms, since he had rejected a version of the bill in 2021 (due to a provision that mandated parties to conduct direct primaries). Buhari’s assent also came with a condition, as the president expressed his wish that section 84(12), which barred political appointees from participating in primaries, be amended. The National Assembly refused to make the amendments requested by the president, forcing several political appointees, including federal ministers running for various offices, to resign.

The act also mandates political parties to submit the list of their sponsored candidates who have emerged from valid primaries conducted by the party, not later than 180 days before the date appointed for a general election, which has resulted in a longer pre-election window. Unintended consequences also included the inability of statutory delegates to vote in party primaries, thereby tipping the scales in determining who secured a party’s ticket at various levels.

A significant impact of the 2022 Electoral Act’s reform has been a review of the power dynamics going into the election. INEC’s role has been strengthened and, unlike in 2019, the commission is poised to play a significant role in ensuring that the election is managed in a manner that provides a level playing ground for all candidates rather than merely announcing results. Key steps towards true independence include the introduction of an INEC Fund, where payments from the federal government, investments made from the fund and other forms of aid and grants are provided to INEC to perform its functions. They also include a stipulated timeframe of not later than a year for the release of election funds the commission needs for any general elections. The new act also authorizes INEC to use electronic devices such as smart card readers, electronic voting machines, and other technological devices, as well as to transmit election results electronically. Perhaps, most importantly, the act gives INEC the authority to review the final decision of a returning officer within seven days of an announcement, where a declaration was not made voluntarily or made contrary to the law or guidelines for the election, which would avoid a repeat of the 2014 Okorocha situation.

Initial analysis of INEC’s performance under the new act in the Ekiti and Osun, governorship elections this year provides cause for cautious optimism. Observers such as the Centre for Democracy and Development (CDD) have hailed the deployment of the Bimodal Voter Accreditation System or ‘BVAS’ and the electronic transmission of results from the polling unit direct to the collation system as a game changer that could potentially ensure the nationwide sanctity of the electoral process. Austin Aigbe, CDD’s Senior Programmes Officer, who led its observer mission to Osun and Ekiti, told me that BVAS will a game-changer in 2023 because it changes the entire landscape of the election.’ According to Aigbe, IBVAS, is the single most important electronic addition to the electoral process because it strengthens electoral integrity.’ 

Serving out his second term as INEC Chair, Yakubu will have a golden opportunity to secure a legacy. The 2023 election provides a clear opportunity to answer the question of where the blame lies for previous inability to conduct credible elections; whether the challenge has been the lack of administrative capacity or helplessness due to shortcomings evident in previous electoral acts. Yakubu will be presiding over the most powerful electoral commission in Nigerian history, with much needed and requested statutory backing and the luxury of time to adequately prepare for the elections. Aigbe also expects a stellar performance by the commission, noting that ‘apart from insecurity, INEC will not have any problem with replicating its success in Osun, because it will be the same method that will be used’. The 2022 Electoral Act, he says, ‘has played a part in helping INEC receive incremental resources for supervising elections.’

The real takeaway here is that it is not yet uhuru, as certain recommendations of the Uwais and Nnamani electoral reform committees, such as reviewing the powers of the president to appoint the INEC’s Chair, the establishment of an Electoral Offences Commission, and a review of campaign finance provisions, have yet to be implemented. Subsequent elections will also present unique challenges, such as the threat of vote buying. The Electoral Act must be viewed as a living piece of legislation that needs constant iteration to meet INEC’s requirements. While the 2022 Act appears to effect changes across a wide scope, the act is largely reflective of 12 years’ worth of updates that should have been implemented since the 2010 Electoral Act. It is also a cautionary tale about how delays in electoral reforms feed long-lasting negative political outcomes

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