The way forward is two-fold. INEC has decided to plan and conduct the next general election due on February 16 and March 2, 2019 on the extant Electoral Act 2010, as amended in 2015, as well as the new constitutional amendments. Alternatively, the National Assembly could exercise its power to veto the president’s withholding of assent on the Bill…
Since news broke on December 7, 2018 that President Muhammadu Buhari had withdrawn assent on the Electoral Amendment Bill 2018 for the fourth time this year, opinions have been divided on the propriety or otherwise of his action. While some, especially members of the All Progressives Congress, commended him for the decision, majority of Nigerians, including many senior legal practitioners, have roundly condemned him over the action. I belong to the latter group. I say without fear of contradiction that the president must have been misadvised not to sign the all-important bill that would have helped strengthen the legal framework for our elections.
How did this all start? It should be noted that the move to amend the 2010 Electoral Act, as achieved in 2015, and also the 1999 Constitution of Nigeria, as amended in 2010, started early. The current process commenced in 2016, which was three years ahead of the next general elections in 2019. Indeed, the process of the amendment of the Act has been faster than that of the Constitution, on the basis of the fact that it needs no concurrence of State Houses of Assembly to get this done. The Senate passed its amendment of the Act on Thursday, March 30, 2017, while the House of Representatives passed its own on Tuesday, January 23, 2018. The two chambers set up a conference committee to harmonise their different positions and on February 14 passed the 2018 Electoral Amendment Bill.
On each of the four times President Buhari has withdrawn assent from the Bill, he has, in accordance with Section 58 (4) of the Constitution, stated his reasons. On March 3, 2018 the president withdrew assent from the Bill, citing three grounds: That the amendment to the sequence of the elections in Section 25 of the Principal Act may infringe on the constitutionally guaranteed discretion of the Independent National Electoral Commission (INEC) to organise, undertake and supervise all elections in Section 15 (a) of the Third Schedule of the Constitution. That the amendment to Section 138 of the Principal Act, to delete two crucial grounds upon which an election may be challenged by candidates, unduly limits the rights of candidates in elections to a free and fair electoral review process. And, that the amendment to Section 152 (3)-(5) of the Principal Act may raise constitutional issues over the competence of the National Assembly to legislate over local government elections.
On June 25 and September 3, 2018, Buhari cited clerical errors, inelegant drafting and cross-referencing issues as the main reasons for not signing the second and third amendments. On the fourth alteration, the president said he “principally” declined assent, as it will “provide opportunity for disruption and confusion” to electoral laws ahead of the 2019 general election. He also cited a couple of other drafting errors. These are: “Section 5 of the Bill, amending section 18 of the Principal Act should indicate the subsection to which the substitution of the figure “30” for the figure “60” is to be affected. “Section 11 of the Bill, amending Section 36 should indicate the subsection in which the proviso is to be introduced. “Section 24 of the Bill which amends Section 85 (1) should be redrafted in full, as the introduction of the “electing” to the sentence may be interpreted to mean that political parties may give 21 days’ notice of the intention to merge, as opposed to the 90 days provided in Section 84 (2) of the Electoral Act which provides the provision for merge of political parties.”
Much as the president is on sure legal footing to withdraw assent to any bill with justification, it is wrong for him not to have raised the issues he is just raising in his second to the last communication sent to the National Assembly on September 3, 2018.
Some people have also cited Article 2 of the ECOWAS protocol on Democracy and Good Governance, which forbids member countries from making “substantial modification” to their electoral laws less than six months to elections, “except with the consent of a majority of political actors”.
Much as the president is on sure legal footing to withdraw assent to any bill with justification, it is wrong for him not to have raised the issues he is just raising in his second to the last communication sent to the National Assembly on September 3, 2018. As at that time, the president could have advised that the proposed bill should take effect after the 2019 elections. By doing so, no expectation would have been nursed for a possible new electoral law ahead of the 2019 polls.
It is curious that the president is coming up with this excuse of the nearness of the amendment to the next general election and citing additional drafting errors after tripartite meetings of members of the National Assembly, Office of Attorney General and the Independent National Electoral Commission. It is important to note that INEC has not complained that it cannot implement the new bill if signed into law. If the president had signed, those provisions already overtaken by events, such as those on political party registration, nomination fees, party primaries, campaign finance etc., would not have been affected as the law will not have retroactive effect.
Not a few people have observed that there are possible fifth columnists at work whose plan is to derail the electoral reform process. It will be recalled that it took the House of Representatives 10 months to pass its own Electoral Amendment Bill after the Senate had done so in March 2010. Also, it was House of Reps that introduced the controversial section 25 to the Bill, which seeks to reorder the sequence of election, while also adding an extra day to the initial two days announced by INEC in its timetable and schedule of activities. Peradventure, if those controversies had not been there at the beginning of the year, so much time wasted in initially trying to override the president’s veto before the second amendment, would have been saved. It is also puzzling that in the last three amendments, there are still clerical and cross-referring errors and drafting issues. Could these have been deliberately orchestrated or is it a reflection of incompetence on the part of the National Assembly?
As for those citing the ECOWAS protocol on Democracy and Good Governance, aside the fact that that protocol is not superior to our national laws, it is also advisory and there is also a proviso that the new law can be implemented “with the consent of a majority of political actors”. Here in Nigeria, a majority of the 91 registered political parties are in agreement…
What was the motive of President Muhammadu Buhari in wanting to sponsor three new electoral reform bills after the National Assembly had almost concluded work on its own, save the earlier referenced clerical and drafting errors? It would be recalled that on September 12, 2018, the attorney general of the federation and minister of justice, Abubakar Malami (SAN), after the Federal Executive Council meeting, briefed State House correspondents that the federal government is sponsoring three new executive bills on electoral reform, namely: the Constitution Alteration Bill (2018); the Electoral Act Amendment Bill (2018); and the Electoral Offences Commission Bill (2018). This was to be done as part of implementation of the Senator Ken Nnamani Electoral Reforms Committee report, which was submitted to the president about October 2017. The question is: Does the president lack confidence in what the National Assembly has done? Recall that the NASS has successfully amended the Constitution, with the president signing five out of the 12 amendments into law on May 31 and June 8, 2018. The Electoral Offences Commission Bill has passed the second reading in the National Assembly, while the Electoral Act had also been amended. Why then is the president trying to reinvent the will?
As for those citing the ECOWAS protocol on Democracy and Good Governance, aside the fact that that protocol is not superior to our national laws, it is also advisory and there is also a proviso that the new law can be implemented “with the consent of a majority of political actors”. Here in Nigeria, a majority of the 91 registered political parties are in agreement that the president should sign the bill into law. The Interparty Advisory Council, which is the umbrella body of all political parties, had urged the president to sign the bill and threatened that about 75 of them will boycott the election if the president refuses to do so.
The way forward is two-fold. INEC has decided to plan and conduct the next general election due on February 16 and March 2, 2019 on the extant Electoral Act 2010, as amended in 2015, as well as the new constitutional amendments. Alternatively, the National Assembly could exercise its power to veto the president’s withholding of assent on the Bill, as enshrined in section 58 (5) of the Nigerian Constitution. That section of the law says that once two-third of members of each chambers of the National Assembly is able to pass the amendment, it automatically becomes law. There is a precedent to this, the 2002 Electoral Act came into force after each chamber of the National Assembly voted on September 25 and 26, 2002 to override ex-President Olusegun Obasanjo’s withdrawal of assent to the bill proposing that legislation.
The chance of that history repeating itself is very remote. Not only has the campaign started, with the majority of members of the National Assembly not attending plenaries again, there is also a purported Supreme Court interpretation that the bill will have to go through the same process it went before the presidential assent was declined. That means there will be a first, second and third reading, with two-third majorities of members of each chamber passing the Bill. It remains to be seen if history will judge President Buhari well for denying Nigeria of the new amendment to the Electoral Act ahead of 2019 elections.
Jide Ojo is a development consultant, author and public affairs analyst. Follow me on twitter @jideojong