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MID-WEEK ESSAY: Interrogating the New
Harmonized Electoral Act 2006 - Some Recommendations
By
Mobolaji E. Aluko, PhD
Burtonsville , MD, US
June 14, 2006
_______________________________________________________________________________________________________________
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:
1. Electoral Act 2006:
http://www.nigerianmuse.com/important_documents/Electoral_%20Act_2006_Harmonized.doc
2. 1999 Nigerian Constitution:
http://www.nigeria-law.org/ConstitutionOfTheFederalRepublicOfNigeria.htm
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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)
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